Animal and Plant Health Inspection Service
Forest Service
Natural Resources Conservation Service
Committee for Purchase From People Who Are Blind or Severely Disabled
Census Bureau
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Presidential Documents
Agency for Healthcare Research and Quality
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
National Park Service
Reclamation Bureau
Drug Enforcement Administration
Executive Office for Immigration Review
Justice Programs Office
Copyright Royalty Board, Library of Congress
International Boundary and Water Commission, United States and Mexico
Committee for the Implementation of Textile Agreements
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
Thrift Supervision Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Animal and Plant Health Inspection Service, USDA.
Final rule; technical amendment.
In a final rule that was published in the
November 30, 2007.
Dr. Arnold T. Tschanz, Senior Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-5306.
In a final rule published in the
It was our intent to remove this restriction only for agar-like tissue culture media. In the proposed rule and final rule, we indicated that bacteria in a tissue culture medium that was not transparent or translucent would quickly reproduce and form a large mass that would be visible during inspection; such a bacterial mass would only be visible in agar-like tissue culture media. Before the final rule became effective, the restriction that any tissue culture media other than agar must be transparent or translucent had effectively restricted the use of tissue culture media other than agar to agar-like tissue culture media.
In removing the requirement that the tissue culture media be transparent or translucent, we neglected to specify that any tissue culture media other than agar should be similar to agar if a restricted article is intended to be imported established in growing media. This has created confusion among exporters. Therefore, we are amending paragraph (c) of § 319.37-8 to read:
“A restricted article growing solely in agar or in other agar-like tissue culture medium may be imported established in such growing media.”
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Animal and Plant Health Inspection Service, USDA.
Affirmation of interim rule as final rule.
We are adopting as a final rule, without change, an interim rule that amended the brucellosis regulations concerning the interstate movement of cattle by changing the classification of Idaho from Class A to Class Free. We determined that Idaho met the standards for Class Free status. The interim rule relieved certain restrictions on the interstate movement of cattle from Idaho.
Effective on November 30, 2007, we are adopting as a final rule the interim rule published at 72 FR 40062-40064 on July 23, 2007.
Dr. Debbi A. Donch, Senior Staff Veterinarian, Ruminant Health Programs, National Center for Animal Health Programs, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1231; (301) 734-5952.
Brucellosis is a contagious disease affecting animals and humans, caused by bacteria of the genus
The brucellosis regulations, contained in 9 CFR part 78 (referred to below as the regulations), provide a system for classifying States or portions of States
In an interim rule
Comments on the interim rule were required to be received on or before September 21, 2007. We received one comment by that date, from a private citizen. This commenter did not, however, address the action taken in the interim rule (i.e., the change in Idaho's brucellosis classification).
Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.
This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.
Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.
Animal diseases, Bison, Cattle, Hogs, Quarantine, Reporting and recordkeeping requirements, Transportation.
Bureau of Industry and Security, Commerce.
Final rule.
This rule updates the Code of Federal Regulations (CFR) legal authority citations for the Export Administration Regulations (EAR) to: Replace citations to the President's Notice of October 27, 2006—
Effective Date: November 30, 2007.
Comments concerning this rule should be sent to
William Arvin, Regulatory Policy Division, Bureau of Industry and Security,
On November 14, 1994, by Executive Order 12938, the President declared a national emergency with respect to the unusual and extraordinary threat to the national security, foreign policy and economy of the United States posed by the proliferation of weapons of mass destruction. That emergency has been continued in effect by successive annual presidential notices. On November 8, 2007 the President issued a notice continuing that emergency for one year from November 14, 2007 (72 FR 63963, November 13, 2007). This rule revises the authority citations in the Code of Federal Regulations for parts 730, 734, 736, 742, 744 and 745 of the EAR to cite the notice of November 8, 2007 and to remove the citation to the President's notice of October 27, 2006 on the same topic.
This rule also revises the authority citations for all parts of EAR by removing citations to Presidential notice of August 3, 2006—
BIS is making the changes described in the preceding two paragraphs to keep the CFR authority citations for the EAR current.
This rule replaces the citations to Sec. 901-911, Public Law 106-387 and Sec 221 Public Law 107-56 with citations to 22 U.S.C. 7201
This rule adds a previously erroneously omitted citation to Executive Order 13222 to the authorities citations for part 743.
This rule makes no changes to the text of the EAR.
1. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork
3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
4. The Department finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary. This rule only updates legal authority citations. This rule does not alter any right, obligation or prohibition that applies to any person under the EAR. Because these revisions are not substantive changes, it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule. No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Advisory committees, Exports, Reporting and recordkeeping requirements, Strategic and critical materials.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Inventions and patents, Research, Science and technology.
Exports.
Exports, Terrorism.
Administrative practice and procedure, Reporting and recordkeeping requirements.
Exports, Reporting and recordkeeping requirements, Terrorism.
Administrative practice and procedure, Chemicals, Exports, Foreign trade, Reporting and recordkeeping requirements.
Exports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Foreign trade, Reporting and recordkeeping requirements.
Agricultural commodities, Exports, Forests and forest products, Horses, Petroleum, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Penalties.
Boycotts, Exports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Business and industry, Confidential business information, Exports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Exports, Law enforcement, Penalties.
Administrative practice and procedure, Confidential business information, Exports, Law enforcement, Penalties.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements, Science and technology.
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. 1701
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
Food and Drug Administration, HHS.
Final rule, technical amendment.
The Food and Drug Administration (FDA) is amending its regulations (exemption for certain drugs limited by new-drug applications to prescription sale, and warning and caution statements required by regulations for drugs) by removing the entries for carbetapentane citrate. This action is associated with FDA's determination that carbetapentane citrate has not been shown to be effective at the over-the-counter (OTC) doses stated in the exempting regulation. FDA made this determination in 1987 as part of its ongoing review of OTC drug products.
This rule is effective November 30, 2007.
Gerald M. Rachanow, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, rm. 5496, Silver Spring, MD 20993, 301-796-2090.
In the
• Evidence now available through investigation and marketing experience shows that drug products containing this ingredient can be safely used by the laity in self-medication if they are used in accordance with the proposed labeling and
• The restriction to prescription sale is no longer necessary for the protection of the public health.
FDA did not receive any comments on this proposal and published a final order (final rule) in the
As part of FDA's OTC drug review, the Advisory Review Panel on OTC Cold, Cough, Allergy, Bronchodilator, and Antiasthmatic Drug Products (the Panel) evaluated carbetapentane citrate and found it safe but lacking adequate effectiveness data for OTC antitussive use (41 FR 38312 at 38345, September 9, 1976). In the tentative final monograph for OTC antitussive drug products (48 FR 48576 at 48580, October 19, 1983), one comment objected to the Panel's effectiveness determination. FDA responded that it agreed with the Panel's conclusions that the data were insufficient to establish effectiveness. FDA did not receive any additional effectiveness data on carbetapentane citrate. In the final rule for OTC antitussive drug products (52 FR 30042, August 12, 1987), FDA classified carbetapentane citrate as nonmonograph (not generally recognized as safe and effective) for OTC antitussive use.
Because carbetapentane citrate had not been shown to be effective at the OTC dosages stated in § 310.201(a)(20), FDA should have removed that paragraph from § 310.201 in 1987. The current final rule corrects that oversight by removing paragraph (a)(20) from § 310.201 and reserving paragraph (a)(20) for future use. In addition, the entry for “CARBETAPENTANE CITRATE PREPARATIONS” in § 369.21 (21 CFR 369.21) states: “(See Cough-Due-to-Cold Preparations.)” The entry for “‘COUGH-DUE-TO-COLD’ PREPARATIONS” entry states: “(CARBETAPENTANE CITRATE). (See § 310.201(a)(20) of this chapter.) ‘Keep out of reach of children. In case of overdose, get medical help or contact a Poison Control Center right away.’” Both of those entries also should have been removed in 1987, and the current final rule removes them.
FDA has examined the impacts of this final rule under Executive Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
Under the Regulatory Flexibility Act, if a rule has a significant economic impact on a substantial number of small entities, an agency must analyze regulatory options that would minimize any significant impact of the rule on small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement of anticipated costs and benefits before proposing any rule that may result in an expenditure in any 1 year by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation).
FDA has determined that this final rule is consistent with the principles set out in Executive Order 12866 and in these two statutes. The final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order. As explained later in this document, the final rule will not have a significant economic impact on a substantial number of small entities. The Unfunded Mandates Reform Act does not require FDA to prepare a statement of costs and benefits for this final rule, because the rule is not expected to result in any 1-year expenditure that would exceed $100 million adjusted for inflation. The current inflation adjusted statutory threshold is about $127 million using the most current (2006) Implicit Price Deflator for the Gross Domestic Product.
The purpose of this final rule is to remove the exemption in § 310.201(a)(20) for carbetapentane citrate from the prescription-dispensing requirements of section 503(b)(1)(B) of the act and to remove two entries for carbetapentane citrate in § 369.21. FDA has reviewed its Drug Listing System and determined that there currently are no marketed OTC drug products that contain carbetapentane citrate. Therefore, FDA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. No further analysis is required under the Regulatory Flexibility Act (5 U.S.C. 605(b)).
This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
FDA has determined under 21 CFR 25.31(a) 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.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that this rule does not contain policies that 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. Any 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 occurred in 1987 when FDA classified carbetapentane citrate as not generally recognized as safe and effective for OTC antitussive use. States had the opportunity to comment at the time that final rule was published (52 FR 30042, August 12, 1987). Accordingly, FDA has concluded that this rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
Administrative practice and procedure, Drugs, Labeling, Medical devices, Reporting and recordkeeping requirements.
Labeling, Medical devices, Over-the-counter drugs.
21 U.S.C. 321, 331, 351, 352, 353, 355, 360b-360f, 360j, 361(a), 371, 374, 375, 379e; 42 U.S.C. 216, 241, 242(a), 262, 263b-263n.
21 U.S.C. 321, 331, 351, 352, 353, 355, 371.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is reclassifying from class III to class II the automated blood cell separator device operating by centrifugal separation principle and intended for the routine collection of blood and blood components. FDA is taking this action on its own initiative based on new information. Elsewhere in this issue of the
This rule is effective December 31, 2007. The reclassification date is November 30, 2007.
Nathaniel L. Geary, Center for Biologics Evaluation and Research, Food and Drug Administration (HFM-17), 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448, 301-827-6210.
The Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 301
• Class I (general controls),
• Class II (special controls), and
• Class III (premarket approval).
Under the 1976 amendments, class II devices were defined as devices for which there was insufficient information to show that general controls themselves would provide reasonable assurance of safety and effectiveness, but for which there was sufficient information to establish performance standards to provide such assurance. SMDA broadened the definition of class II devices to mean those devices for which the general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but for which there is sufficient information to establish special controls to provide such assurance, including performance standards, post-market surveillance, patient registries, development and dissemination of guidelines, recommendations, and other appropriate actions the agency deems necessary (section 513(a)(1)(B) of the act).
Under section 513 of the act, devices that were in commercial distribution before May 28, 1976 (the date of enactment of the 1976 amendments), generally referred to as preamendment devices, are classified after FDA:
1. Receives a recommendation from a device classification panel (an FDA advisory committee);
2. Publishes the panel's recommendation for comment, along with a proposed regulation classifying the device; and
3. Publishes a final regulation classifying the device.
FDA has classified most preamendments devices under these procedures.
1. Devices that were not in commercial distribution before May 28, 1976, generally referred to as postamendments devices, are classified automatically by statute (section 513(f) of the act) (21 U.S.C. 360c(f)) into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval unless and until FDA reclassifies the device into class I or class II.
2. FDA issues an order classifying the device into class I or II in accordance with new section 513(f)(2) of the act, as amended by FDAMA; or
3. FDA issues an order finding the device to be substantially equivalent, under section 513(i) of the act (21 U.S.C. 360c(i)), to a predicate device that does not require premarket approval.
The agency determines whether new devices are substantially equivalent to previously offered devices by means of premarket notification procedures in section 510(k) of the act (21 U.S.C. 360(k)) and part 807 of the regulations (21 CFR part 807).
A preamendments device that has been classified into class III may be marketed through premarket notification procedures, without submission of a premarket approval application (PMA) until FDA issues a final regulation under section 515(b) of the act (21 U.S.C. 360e(b)) requiring premarket approval.
Section 513(e) of the act governs reclassification of classified preamendments devices. This section provides that FDA may, by rulemaking, reclassify a device (in a proceeding that parallels the initial classification proceeding) based upon “new information.” FDA can initiate a reclassification under section 513(e) or an interested person may petition FDA to reclassify a preamendments device. The term “new information,” as used in section 513(e)(1) of the act, includes information developed as a result of a reevaluation of the data before the agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See, e.g.,
Reevaluation of the data previously before the agency is an appropriate basis for subsequent regulatory action where the reevaluation is made in light of newly available regulatory authority (see
Section 510(m) of the act (21 U.S.C. 360(m)) provides that FDA exempt a class II device from the premarket notification requirements under section 510(k) of the act if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. FDA believes that an automated blood cell separator device operating by centrifugal separation principle should not be exempt from premarket notification under section 510(m) of the act because premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device.
The automated blood cell separator device operating by centrifugal separation principle intended for the routine collection of blood and blood components is a preamendments device classified into class III.
In the
Also, FDA is correcting a regulatory citation in the proposed rule of March 10, 2005 (70 FR 11887), on page 11892, in the first column, starting in the second line; “21 CFR 803.50(b)(2)” is corrected to read “21 CFR 803.50(b)(3))”.
FDA also identified the draft guidance entitled “Guidance for Industry and FDA Staff: Class II Special Controls Guidance Document: Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Separation Principle” as the proposed special controls capable of providing reasonable assurance of safety and effectiveness for these devices.
Under section 513(e) of the act and § 860.130 (21 CFR 860.130), based on new information and on its own initiative, FDA is reclassifying from class III to class II (special controls) the automated blood cell separator device operating by centrifugal separation principle and intended for the routine collection of blood and blood components. The special controls in conjunction with general controls will provide reasonable assurance of the safety and effectiveness of the device. For all other uses, including therapeutic apheresis, the device remains in its current classification as class III. All therapeutic apheresis (blood cell separator) devices are regulated by the Center for Devices and Radiological Health and are not part of § 864.9245 (21 CFR 864.9245).
The automated blood cell separator device operating by centrifugal separation principle is assigned the generic name, automated blood cell separator. It is identified as a device that automatically withdraws whole blood from a donor, separates the blood into components, retains one or more components, and returns the remainder of the blood to the donor. This final rule removes reference in § 864.9245, to the words that were in parentheses, specifically, red blood cells, white blood cells, plasma, and platelets. The components obtained are transfused or used for further manufacturing. The separation bowls of centrifugal blood cell separators may be reusable or disposable, as specified by the device manufacturer.
Also in this rule, we are removing from § 864.9245(b), the list of special controls for the class II automated blood cell separator device operating by filtration separation principle and intended for the routine collection of blood and blood components. The special controls guidance entitled “Guidance for Industry and FDA Staff: Class II Special Controls Guidance Document: Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Principle” will provide the special controls for both filtration- and centrifugal-based automated blood cell separator devices intended for the routine collection of blood and blood components. The availability of this guidance is announced elsewhere in this issue of the
The special controls guidance document recommends that the manufacturer file with FDA for 3 consecutive years an annual report on the anniversary date of the final rule for reclassification or on the anniversary date of 510(k) clearance. Each annual report should include, at a minimum, the following information:
• A summary of anticipated and unanticipated donor adverse events that have occurred and that are not required to be reported by manufacturers under part 803 (21 CFR part 803) Medical Device Reporting (MDR);
• Any subsequent change to the device requiring the submission of a premarket notification in accordance with section 510(k) of the act;
• Any subsequent change to the preamendments class III device requiring a 30-day notice in accordance with § 814.39(f) (21 CFR 814.39(f)).
For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device and, therefore, the type of device is not exempt from premarket notification requirements. Prior to marketing the device, persons must submit to FDA a premarket notification containing information about the automated blood cell separator device they intend to market. Following the effective date of this final rule, any firm submitting a 510(k) premarket notification for an automated blood cell separator device operating by filtration or centrifugal separation principle and intended for the routine collection of blood and blood components will need to address the issues covered in the special controls guidance. However, the firm need only show that its device meets the recommendations of the guidance or in some other way provides equivalent assurance of safety and effectiveness.
FDA received one comment on the proposed rule. The comment supported the reclassification of the automated blood cell separator device operating by centrifugal separation principle and intended for the routine collection of blood and blood components. In addition, the comment provided specific questions about the reporting requirements in the special controls guidance document and asked FDA to clarify these reporting requirements.
We first provide a general response to the comment and then respond to the questions submitted in the comment. To make it easier to identify the questions provided in the comment and our responses, the word “Comment,” in parentheses, will appear before the description of the question, and the word “Response,” in parentheses, will appear before our response. We numbered the comments to distinguish the questions.
When the device is reclassified, all manufacturers of currently marketed automated blood cell separators operating by centrifugal separation principle not approved under the premarket approval process should file annual reports for 3 consecutive years on the anniversary date of reclassification of the device from class III to class II, or on the anniversary date of the 510(k) clearance. Within the 3-year reporting period, any subsequent change to the device requiring a 510(k) should be included in the annual report. The criteria for reporting changes to the device and its labeling under 510(k) are delineated in FDA's guidance “Deciding When to Submit a 510(k) for a Change to an Existing Device,” January 10, 1997.
However, manufacturers of automated blood cell separator devices operating by filtration separation principle that were classified into class II (68 FR 9530, February 28, 2003) were subject to the special controls of § 864.9245 issued in 2003, requiring 3 consecutive years of submitting annual reports. These devices are not required to initiate another cycle of annual reports as a result of the change of special controls for those devices codified by this rule.
Under §§ 606.160(b)(1)(iii) and 606.170 (21 CFR 606.160(b)(1)(iii) and 606.170), the facility using the device to collect blood and blood components is required to keep records of donor adverse reaction complaints and reports, including results of all investigations
(Comment 1) Do you intend to request 3-year annual reporting only for the initial 510(k) clearance for the automated blood cell separator device?
(Response) Yes. The 3-year annual reporting described in the special controls guidance document recommends annual reporting only for the initial 510(k) clearance. Any subsequent change to the device within this 3-year reporting period requiring the submission of a premarket notification in accordance with section 510(k) of the act should be included in the annual report. However, the submission of this 510(k) information concerning a change to the device would not restart the 3-year reporting period.
(Comment 2) Is it correct that for a device originally approved under the PMA process, then switched to a 510(k), annual reporting would not be required?
(Response) Yes, this is correct, if an automated blood cell separator device intended for the routine collection of blood and blood components was originally approved under the PMA process.
(Comment 3) Does this reporting requirement apply to all automated blood cell separator devices operating by centrifugal or filtration separation principle intended for the routine collection of blood and blood components regardless of when the original clearance was granted? Would any preamendments devices be “grandfathered” in so that the reporting would not be required?
(Response) The reporting recommended in the special controls guidance applies to currently marketed products not approved under the PMA process. The 3-year annual reporting for these products should begin on the anniversary date of the device reclassification from class III to class II, or, on the anniversary date of 510(k) clearance.
In this rulemaking, we are reclassifying the automated blood cell separator device operating by centrifugal separation principle from class III to class II. Therefore, the reclassification date from class III to class II for the automated blood cell separator device operating by centrifugal separation principle and intended for the routine collection of blood and blood components is the date of publication in the
Devices in commercial distribution before May 28, 1976, are also referred to as preamendments devices. On September 12, 1980 (45 FR 60643), FDA issued a final rule classifying these preamendment automated blood cell separator devices as class III (premarket approval). The 1976 amendments did not immediately subject preamendment devices classified in class III to the preamendment process. In the regulation (§ 864.9245), FDA did not set a deadline for the submission of premarket approval applications for the device. That regulation is amended in this rulemaking to reclassify the device from class III to class II. Therefore, preamendments devices are subject to this rulemaking, and the special controls guidance document as of the anniversary date of device reclassification from class III to class II.
Therefore, under section 513 of the act, FDA is adopting the summary of reasons for the Panel's recommendation and the summary of data upon which the Panel's recommendation is based (70 FR 11887 at 11890). FDA is also adopting the risks to public health stated in the proposed rule (70 FR 11887 at 11891). Furthermore, FDA is issuing a final rule that revises § 864.9245, thereby, reclassifying the generic type of device, automated blood cell separator operated by centrifugal separation principle and intended for the routine collection of blood and blood components from class III into class II.
FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. The reclassification of automated blood cell separator devices from class III to class II will relieve manufacturers of the cost of complying with the premarket approval requirements in section 515 of the act. Although the special controls guidance document recommends that manufacturers of these devices file with FDA an annual report for 3 consecutive years, this is less burdensome than the current premarket approval requirements, including the submission of periodic reports (21 CFR 814.84). By eliminating the need for premarket approval applications, reclassification will reduce regulatory costs with respect to these devices, impose no significant economic impact on any small entities, and may permit small potential competitors to enter the marketplace by lowering their costs. The agency therefore certifies that this final rule will not have a significant impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $127 million, using the most current (2006) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
The agency has determined under 21 CFR 25.34(b) 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.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National
This final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) is not required. FDA concludes that the special controls guidance document contains information collection provisions that are subject to review and clearance by OMB under the PRA. Elsewhere in this issue of the
Blood, Medical devices, Packaging and containers.
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
Pension Benefit Guaranty Corporation.
Final rule.
This rule amends Appendix D to the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans by adding the maximum guaranteeable pension benefit that may be paid by the PBGC with respect to a plan participant in a single-employer pension plan that terminates in 2008. The amendment is necessary because the maximum guarantee amount changes each year, based on changes in the contribution and benefit base under section 230 of the Social Security Act. The effect of the amendment is to advise plan administrators, participants and beneficiaries of the increased maximum guarantee amount for 2008.
Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
Section 4022(b) of the Employee Retirement Income Security Act of 1974 provides for certain limitations on benefits guaranteed by the PBGC in terminating single-employer pension plans covered under Title IV of ERISA. One of the limitations, set forth in section 4022(b)(3)(B), is a dollar ceiling on the amount of the monthly benefit that may be paid to a plan participant (in the form of a life annuity beginning at age 65) by the PBGC. The ceiling is equal to “$750 multiplied by a fraction, the numerator of which is the contribution and benefit base (determined under section 230 of the Social Security Act) in effect at the time the plan terminates and the denominator of which is such contribution and benefit base in effect in calendar year 1974 [$13,200].” This formula is also set forth in § 4022.22(b) of the PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022). Appendix D to part 4022 lists, for each year beginning with 1974, the maximum guaranteeable benefit payable by the PBGC to participants in single-employer plans that have terminated in that year.
Section 230(d) of the Social Security Act (42 U.S.C. 430(d)) provides special rules for determining the contribution and benefit base for purposes of ERISA section 4022(b)(3)(B). Each year the Social Security Administration determines, and notifies the PBGC of, the contribution and benefit base to be used by the PBGC under these provisions, and the PBGC publishes an amendment to Appendix D to part 4022 to add the guarantee limit for the coming year.
The PBGC has been notified by the Social Security Administration that, under section 230 of the Social Security Act, $75,900 is the contribution and benefit base that is to be used to calculate the PBGC maximum guaranteeable benefit for 2008. Accordingly, the formula under section 4022(b)(3)(B) of ERISA and 29 CFR 4022.22(b) is: $750 multiplied by $75,900/$13,200. Thus, the maximum monthly benefit guaranteeable by the PBGC in 2008 is $4,312.50 per month in the form of a life annuity beginning at age 65. This amendment updates Appendix D to part 4022 to add this maximum guaranteeable amount for plans that terminate in 2008. (If a benefit is payable in a different form or begins at a different age, the maximum guaranteeable amount is the actuarial equivalent of $4,312.50 per month.)
General notice of proposed rulemaking is unnecessary. The maximum guaranteeable benefit is determined according to the formula in section 4022(b)(3)(B) of ERISA, and these amendments make no change in its method of calculation but simply list 2008 maximum guaranteeable benefit amounts for the information of the public.
The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this
Pension insurance, Pensions, Reporting and recordkeeping requirements.
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
The following table lists by year the maximum guaranteeable monthly benefit payable in the form of a life annuity commencing at age 65 as described by § 4022.22(b) to a participant in a plan that terminated in that year:
Pension Benefit Guaranty Corporation.
Final rule.
This rule amends the Pension Benefit Guaranty Corporation's regulation on Allocation of Assets in Single-Employer Plans by substituting a new table that applies to any plan being terminated either in a distress termination or involuntarily by the PBGC with a valuation date falling in 2008, and is used to determine expected retirement ages for plan participants. This table is needed in order to compute the value of early retirement benefits and, thus, the total value of benefits under the plan.
Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
The PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) sets forth (in subpart B) the methods for valuing plan benefits of terminating single-employer plans covered under Title IV of the Employee Retirement Income Security Act of 1974. Under ERISA section 4041(c), guaranteed benefits and benefit liabilities under a plan that is undergoing a distress termination must be valued in accordance with part 4044, subpart B. In addition, when the PBGC terminates an underfunded plan involuntarily pursuant to ERISA Section 4042(a), it uses the subpart B valuation rules to determine the amount of the plan's underfunding.
Under § 4044.51(b) of the asset allocation regulation, early retirement benefits are valued based on the annuity starting date, if a retirement date has been selected, or the expected retirement age, if the annuity starting date is not known on the valuation date. Sections 4044.55 through 4044.57 set forth rules for determining the expected retirement ages for plan participants entitled to early retirement benefits. Appendix D of part 4044 contains tables to be used in determining the expected early retirement ages.
Table I in appendix D (Selection of Retirement Rate Category) is used to determine whether a participant has a low, medium, or high probability of retiring early. The determination is based on the year a participant would reach “unreduced retirement age” (
Tables II-A, II-B, and II-C (Expected Retirement Ages for Individuals in the Low, Medium, and High Categories respectively) are used to determine the expected retirement age after the probability of early retirement has been determined using Table I. These tables establish, by probability category, the expected retirement age based on both the earliest age a participant could retire under the plan and the unreduced retirement age. This expected retirement age is used to compute the value of the early retirement benefit and, thus, the total value of benefits under the plan.
This document amends appendix D to replace Table I-07 with Table I-08 in order to provide an updated correlation, appropriate for calendar year 2008, between the amount of a participant's benefit and the probability that the participant will elect early retirement. Table I-08 will be used to value benefits in plans with valuation dates during calendar year 2008.
The PBGC has determined that notice of and public comment on this rule are impracticable and contrary to the public interest. Plan administrators need to be able to estimate accurately the value of plan benefits as early as possible before initiating the termination process. For that purpose, if a plan has a valuation date in 2008, the plan administrator needs the updated table being promulgated in this rule. Accordingly, the public interest is best served by issuing this table expeditiously, without an opportunity for notice and comment, to allow as much time as possible to estimate the value of plan benefits with the proper table for plans with valuation dates in early 2008.
The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this regulation, the Regulatory Flexibility Act of 1980 does not apply (5 U.S.C. 601(2)).
Pension insurance, Pensions.
29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362.
Copyright Royalty Board, Library of Congress.
Final rule.
The Copyright Royalty Judges are publishing final regulations setting the royalty rates and terms under the Copyright Act for the noncommercial educational broadcasting statutory license for the license period 2008-2012.
Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney-Advisor, by telephone at (202) 707-7658 or e-mail at
Section 118 of the Copyright Act, title 17 of the United States Code, establishes a statutory license for the use of certain copyrighted works in connection with noncommercial television and radio broadcasting. The terms and rates for this statutory license have been adjusted periodically by the Librarian of Congress and appear in 37 CFR part 253. However, the Copyright Royalty and Distribution Reform Act of 2004, Pub. L. 108-419, transferred jurisdiction over these rates and terms to the Copyright Royalty Judges (“Judges”). 17 U.S.C. 801(b)(1). This is a window year for the establishment of new rates and terms for the 2008-2012 license period.
On January 9, 2006, pursuant to 17 U.S.C. 803(b)(1)(A)(i)(V), the Copyright Royalty Judges published a notice in the
Section 801(b)(7)(A) allows for the adoption of rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided they are submitted to the Copyright Royalty Judges for approval. This section provides that in such event:
(i) The Copyright Royalty Judges shall provide to those that would be bound by the terms, rates, or other determination set by any agreement in a proceeding to determine royalty rates an opportunity to comment on the agreement and shall provide to participants in the proceeding under section 803(b)(2) that would be bound by the terms, rates, or other determination set by the agreement to comment on the agreement and object to its adoption as a basis for statutory terms and rates; and
(ii) the Copyright Royalty Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement, if any participant described in clause (i) objects to the agreement and the Copyright Royalty Judges conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates.
In response to the NPRM, the Judges received only one comment, which was jointly submitted by NPR and PBS, stating that there had been an inadvertent error in the joint proposal with respect to some of the NPR and PBS proposed royalty rates, thereby making the rates proposed in § 381.7(b)(1)(i) incorrect. Comments of NPR and PBS, filed May 15, 2007, at 2. They then set out the intended rates.
Consequently, as required by section 801(b)(7)(A), the Judges published a second NPRM requesting comment on the rates correcting those previously proposed in § 381.7(b)(1)(i). 72 FR 54623 (September 26, 2007) and 72 FR 57101 (October 5, 2007). Comments were due by October 26, 2007. In response to this NPRM, the Judges received one comment from the organization Students for a Democratic Society. The comment stated that “in some cases these royalties might be restrictive” and that royalties may be paid “for something that (perhaps) is in fact Fair Use.” Comment submitted by Students for a Democratic Society on September 26, 2007. However, there was no indication that this organization would be bound by the proposed rates and terms or that it was prepared to participate in further proceedings to establish rates and terms for the section 118 license.
Having received no objections from a party that would be bound by the proposed rates and terms and that would be willing to participate in further proceedings, the Copyright Royalty Judges, by this notice, are adopting final regulations which set the rates and terms for the section 118 statutory license for the period 2008-2012.
The regulations adopted today require that on December 1 of each year, starting with 2007, the Judges publish a notice of the change in the cost of living as determined by the Consumer Price Index (all consumers, all items) during the period from the most recent Index published prior to the previous notice,
The change in the cost of living as determined by the Consumer Price Index (all consumers, all items) during the period from the most recent Index published before December 1, 2006, to the most recent Index published before December 1, 2007, is 3.5% (2006's figure was 201.8; the figure for 2007 is 208.936, based on 1982-1984 = 100 as a reference base). Rounding off to the nearest dollar, the royalty rate for the use of musical compositions in each of the repertoires of ASCAP and BMI is $287.
Copyright, Music, Radio, Television, Rates.
17 U.S.C. 118, 801(b)(1) and 803.
This part establishes terms and rates of royalty payments for certain activities using published nondramatic musical works and published pictorial, graphic and sculptural works during a period beginning on January 1, 2008, and ending on December 31, 2012. Upon compliance with 17 U.S.C. 118, and the terms and rates of this part, a public broadcasting entity may engage in the activities with respect to such works set forth in 17 U.S.C. 118(c).
As used in this part, the term
The following schedule of rates and terms shall apply to the performance by PBS, NPR and other public broadcasting entities engaged in activities set forth in 17 U.S.C. 118(c) of copyrighted published nondramatic musical compositions, except for public broadcasting entities covered by §§ 381.5 and 381.6, and except for compositions which are the subject of voluntary license agreements.
(9) For purposes of this schedule the rate for the performance of theme music in an entire series shall be double the single program theme rate.
(10) In the event the work is first performed in a program of a station of PBS or NPR, and such program is subsequently distributed by PBS or NPR, an additional royalty payment shall be made equal to the difference between the rate specified in this section for a program of a station of PBS or NPR, respectively, and the rate specified in this section for a PBS or NPR program, respectively.
(b)
(c)
(d)
(a)
(b)
(c)
(1) For all such compositions in the repertory of ASCAP, $287 annually.
(2) For all such compositions in the repertory of BMI, $287 annually.
(3) For all such compositions in the repertory of SESAC, $116 annually.
(4) For the performance of any other such compositions: $1.
(d)
(e)
(a)
(b)
(c)
(1) For all such compositions in the repertory of ASCAP, the royalty rates shall be as follows:
(2) For all such compositions in the repertory of BMI, the royalty rates shall be as follows:
(3) For all such compositions in the repertory of SESAC, the royalty rates shall be as follows:
(4) For the performance of any other such compositions, in 2008 through 2012, $1.
(d)
(e)
(f)
(1)
(i) The number of persons estimated to reside within a stations Predicted 60 dBu Contour, based on the most recent available census data; and
(ii) The nonduplicative number of persons estimated to reside in the Predicted 60 dBu Contour of any Translator Station or Booster Station that extends a public broadcasting entity's signal beyond the contours of a station's Predicted 60 dBu Contour.
(iii) In determining Population Count, a station or a Translator Station or a Booster Station may use and report the total population data, from a research company generally recognized in the broadcasting industry, for the radio market within which the station's community license is located.
(2)
(3)
(a)
(b)
(ii) For such uses other than in a PBS-distributed television program, the royalty fee shall be calculated by multiplying the following per-composition rates by the number of different compositions in that program:
(iii) In the event the work is first recorded other than in a PBS-distributed program, and such program is subsequently distributed by PBS, an additional royalty payment shall be made equal to the difference between the rate specified in this section for other than a PBS-distributed program and the rate specified in this section for a PBS-distributed program.
(2) For uses licensed herein of a musical work in a NPR program, the royalty fees shall be calculated by multiplying the following per-composition rates by the number of different compositions in any NPR program distributed by NPR. For purposes of this schedule “National Public Radio” programs include all programs produced in whole or in part by NPR, or by any NPR station or organization under contract with NPR.
(3) For purposes of this schedule, a “Concert Feature” shall be deemed to be the nondramatic presentation in a program of all or part of a symphony, concerto, or other serious work originally written for concert performance, or the nondramatic presentation in a program of portions of a serious work originally written for opera performance.
(4) For such uses other than in an NPR-produced radio program:
(5) The schedule of fees covers use for a period of three years following the first use. Succeeding use periods will require the following additional payment: Additional one-year period—25 percent of the initial three-year fee; second three-year period—50 percent of the initial three-year fee; each three-year fee thereafter—25 percent of the initial three-year fee; provided that a 100 percent additional payment prior to the expiration of the first three-year period will cover use during all subsequent use periods without limitation. Such succeeding uses which are subsequent to December 31, 2012, shall be subject to the royalty rates established in this schedule.
(c)
(d)
(2)
(i) The title, composer and author to the extent such information is reasonably obtainable.
(ii) The type of use and manner of performance thereof in each case.
(iii) For Concert Feature music, the actual recorded time period on the program, plus all distribution and broadcast information available to the public broadcasting entity.
(e)
(a)
(b)
(i) For such uses in a PBS-distributed program:
(ii) For such uses in other than PBS-distributed programs:
(2) For the purposes of the schedule in paragraph (b)(1) of this section the rate for the thematic use of a work in an entire series shall be double the single program theme rate. In the event the work is first used other than in a PBS-distributed program, and such program is subsequently distributed by PBS, an additional royalty payment shall be made equal to the difference between the rate specified in this section for other than a PBS-distributed program and the rate specified in this section for a PBS-distributed program.
(3) “Featured display” for purposes of this schedule means a full-screen or substantially full-screen display appearing on the screen for more than three seconds. Any display less than full-screen or substantially full-screen, or full-screen for three seconds or less, is deemed to be a “background or montage display”.
(4) “Thematic use” is the utilization of the works of one or more artists where the works constitute the central theme of the program or convey a story line.
(5) “Display of an art reproduction copyrighted separately from the work of fine art from which the work was reproduced” means a transparency or other reproduction of an underlying work of fine art.
(c)
(d)
(2) Such listings shall be furnished not later than July 31 of each calendar year for displays during the first six months of the calendar year, and not later than January 31 of each calendar year for displays during the second six months of the preceding calendar year.
(e)
(2) Such listings shall be furnished not later than July 31 of each calendar year for displays during the first six months of the calendar year, and not later than January 31 of each calendar
(f)
(2) Pursuant to the provisions of 17 U.S.C. 118(e), nothing in this schedule shall be construed to permit, beyond the limits of fair use as provided in 17 U.S.C. 107, the production of a transmission program drawn to any substantial extent from a published compilation of pictorial, graphic, or sculptural works.
If PBS and its stations, NPR and its stations, or other public broadcasting entity is not aware of the identity of, or unable to locate, a copyright owner who is entitled to receive a royalty payment under this part, they shall retain the required fee in a segregated trust account for a period of three years from the date of the required payment. No claim to such royalty fees shall be valid after the expiration of the three-year period. Public broadcasting entities may establish a joint trust fund for the purposes of this section. Public broadcasting entities shall make available to the Copyright Royalty Judges, upon request, information concerning fees deposited in trust funds.
(a) On or before December 1, 2007, the Copyright Royalty Judges shall publish in the
(b) On the same date of the notices published pursuant to paragraph (a) of this section, the Copyright Royalty Judges shall publish in the
(c) The adjusted schedule for rates for § 381.5 shall become effective thirty days after publication in the
Any public broadcasting entity which, pursuant to 17 U.S.C. 118, supplies a reproduction of a transmission program to governmental bodies or nonprofit institutions shall include with each copy of the reproduction a warning notice stating in substance that the reproductions may be used for a period of not more than seven days from the specified date of transmission, that the reproductions must be destroyed by the user before or at the end of such period, and that a failure to fully comply with these terms shall subject the body or institution to the remedies for infringement of copyright.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule; correction notice.
This document corrects technical errors that appeared in the August 3, 2007
Bill Ullman, (410) 786-5667.
On September 28, 2007, we published a correction notice (FR Doc. E7-18732, 72 FR 55085) to correct a number of technical errors that appeared in the FY 2008 Skilled Nursing Facility Prospective Payment System (SNF PPS) final rule on August 3, 2007 (FR Doc. 07-3784, 72 FR 43412). In this notice, we are correcting certain technical errors in the wage index values, which have been recently identified. Specifically, we have determined that in the process of developing the most recent hospital wage index, an inpatient hospital provider was inadvertently assigned to the wrong Core-Based Statistical Area (CBSA). This provider was incorrectly located in CBSA 16180 (Carson City, NV) instead of CBSA 39900 (Reno-Sparks, NV). Accordingly, we are revising the wage index values for CBSA 16180 Carson City, NV from 0.9353 to the corrected value of 1.0003. Similarly, we are revising the wage index value for CBSA 39900 Reno-Sparks, NV from 1.0959 to the corrected value of 1.0715. As we are revising the entries for only these two particular CBSAs, we are not republishing the lengthy Table 8, “FY 2008 Wage Index for Urban Areas Based on CBSA Labor market Areas,” in its entirety in this notice. We note that the corrected version of this table is available online on the SNF PPS website, at
The corrections in this document appear below in the “Correction of Errors” section. The provisions in this correction notice are effective as of January 1, 2008.
In FR Doc. 07-3784 (72 FR 43412), make the following corrections:
1. On page 43441, in column 3 (“Wage Index”) of Table 8, “Wage Index for Urban Areas Based on CBSA Labor Market Areas”, the entry “0.9353” for CBSA 16180 Carson City, NV is corrected to read “1.0003”.
2. On page 43455, in column 3 (“Wage Index”) of Table 8, “Wage Index for Urban Areas Based on CBSA Labor Market Areas”, the entry “1.0959” for CBSA 39900 Reno-Sparks, NV is corrected to read “1.0715”.
We ordinarily publish a notice of proposed rulemaking in the
We find for good cause that it is unnecessary to undertake notice and comment rulemaking because this notice merely provides technical corrections to the regulations. We are not making substantive changes to our payment methodologies or policies, but rather, are simply implementing correctly the payment methodologies and policies that we previously proposed, received comment on, and subsequently finalized. The public has already had the opportunity to comment on these payment methodologies and policies, and this correction notice is intended solely to ensure that the FY 2008 SNF PPS final rule accurately reflects them. Therefore, we believe that undertaking further notice and comment procedures to incorporate these corrections into the update notice is unnecessary and contrary to the public interest.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
The Medicaid Integrity Program (the Program) provides that the Secretary promote the integrity of the Medicaid program by entering into contracts with contractors that will review the actions of individuals or entities furnishing items or services (whether fee-for-service, risk, or other basis) for which payment may be made under an approved State plan and/or any waiver of the plan approved under section 1115 of the Social Security Act; audit claims for payment of items or services furnished, or administrative services furnished, under a State plan; identify overpayments of individuals or entities receiving Federal funds; and educate providers of services, managed care entities, beneficiaries, and other individuals with respect to payment integrity and quality of care. This final rule will provide for limitations on a contractor's liability while performing these services under the Program.
The final rule will, to the extent possible, employ the same or comparable standards and other substantive and procedural provisions as are contained in section 1157 (Limitation on Liability) of the Social Security Act.
Barbara Rufo, 410-786-5589 or Crystal High, 410-786-8366.
States and the Federal Government share in the responsibility for safeguarding Medicaid program integrity. States must comply with Federal requirements designed to ensure that Medicaid funds are properly spent (or recovered, when necessary). The Centers for Medicare & Medicaid Services (CMS) is the primary Federal agency responsible for providing oversight of States' activities and facilitating their program integrity efforts.
Section 6034 of the Deficit Reduction Act (DRA) of 2005 (Pub. L. 109-171, enacted on February 8, 2006) amended title XIX of the Social Security Act (the Act), (42 U.S.C. 1396
Although individual States work to ensure the integrity of their respective Medicaid programs, the Program represents CMS' first comprehensive national strategy to detect and prevent Medicaid fraud and abuse. The Program will provide CMS with the ability to more directly ensure the accuracy of Medicaid payments and to deter those who would exploit the program.
The new section 1936 of the Act states that the Secretary shall promote the integrity of the Medicaid program by entering into contracts with eligible entities to carry out the following activities:
1. Review of the actions of individuals or entities furnishing items or services (whether on a fee-for-service, risk or other basis) for which payment may be made under a State plan approved under title XIX (or under any waiver of this plan approved under section 1115 of the Act) to determine whether fraud, waste, and/or abuse has occurred, or is likely to occur, or whether these actions have any potential for resulting in an expenditure of funds under title XIX in a manner that is not intended under the provisions of title XIX.
2. Audit of claims for payment for items or services furnished, or administrative services rendered, under a State plan under title XIX, including cost reports, consulting contracts; and risk contracts under section 1903(m) of the Act.
3. Identification of overpayments to individuals or entities receiving Federal funds under title XIX.
4. Education of providers of services, managed care entities, beneficiaries, and other individuals with respect to payment integrity and quality of care.
Section 1936 of the Act also provides that the Secretary will, by regulation, provide for the limitation of a contractor's liability for actions taken to carry out a contract under the Medicaid Integrity Program.
Section 6034 of the Deficit Reduction Act of 2005 amended title XIX of the Act by establishing, under the new section 1936, the Medicaid Integrity Program to promote the integrity of the Medicaid program by authorizing the Centers for Medicare & Medicaid Services (CMS) (on behalf of the Secretary) to enter into contracts with contractors that will (1) review the actions of individuals or entities
Contractors that perform activities under the Program will be reviewing activities of providers and others seeking Medicaid payment for providing services to Medicaid beneficiaries. In an effort to reduce or eliminate the Program contractors' exposure to possible legal action from entities they review, section 1936 of the Act requires that we, by regulation, limit the Program contractor's liability for actions taken in carrying out its contract. We must establish, to the extent we find appropriate, standards and other substantive and procedural provisions that are the same as, or comparable to, those contained in section 1157 of the Act.
Section 1157 of the Act provides that any organization having a contract (under Title XI, Part B of the Act) with the Secretary, as well as its employees, fiduciaries, and anyone who furnishes professional services to such an organization, is/are protected from civil and criminal liability in performing its duties under the Act or its contract, provided these duties are performed with due care.
In the July 20, 2007
The proposed rule, in § 455.1, Basis and scope, added a new paragraph (c) stating that subpart C implements section 1936 of the Act. Section 1936 of the Act establishes the Medicaid Integrity Program under which the Secretary will promote the integrity of the program by entering into contracts with eligible entities to carry out the activities under subpart C. We did not receive public comments on this provision, therefore we adopt the provision as final.
In § 455.200(a), we set forth the proposed statutory basis which would implement section 1936 of the Act, which states that the Secretary will promote the integrity of the Medicaid program by entering into contracts with eligible entities to carry out the activities under subpart C. In § 455.200(b) we proposed the scope for the limitation on a contractor's liability to carry out a contract under the Medicaid Integrity Program as proposed under new § 455.202. We did not receive public comments on this provision; therefore we adopt the provision as final.
We proposed in § 455.202 to protect Program contractors from liability in the performance of their contracts provided they carry out their contractual duties with due care.
In accordance with section 1936 of the Act, we proposed to employ the same standards for payment of legal expenses as are contained in section 1157(d) of the Act. Therefore, in § 455.202(b) we proposed that we make payment to Program contractors, their members, employees, and anyone who provides legal counsel or services to them, for expenses incurred in the defense of any legal action related to the performance of the Program contract. We also proposed that any and all payment(s) and the amount of each payment(s) if any, will be determined exclusively by us, and conditioned upon (1) the reasonableness of the expense(s); (2) the amount of government funds available for payment(s); and (3) whether the payment(s) is(are) allowable under the terms of the contract.
In § 455.202, we considered employing a standard for the limitation of liability other than the due care standard. We considered whether it would be appropriate to provide that a contractor would not be civilly liable by reason of the performance of any duty, function, or activity under its contract provided the contractor was not grossly negligent in that performance. However, section 1936 of the Act requires that we employ the same or comparable standards and provisions as are contained in section 1157 of the Act. This approach is consistent with a similar approach taken in the Medicare Integrity Program (72 FR 48870), which has virtually identical statutory limitations on contractor liability language. Therefore, we did not believe that it would be appropriate to expand the scope of immunity to a standard of gross negligence, as it would not be a comparable standard to that set forth in section 1157(b) of the Act.
In this final rule we are adopting the provisions as set forth in the July 20, 2007 proposed rule (72 FR 39776) as final.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule will not reach the economic threshold and thus is not considered a major rule.
The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined that this rule will not have a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined that this rule will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $120 million. This rule will have no consequential effect on State, local, or tribal governments or on the private sector.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation will not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Fraud, Grant programs—health, Health facilities, Health professions, Investigations, Medicaid, Reporting and recordkeeping requirements.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
(c) Subpart C implements section 1936 of the Act. It establishes the Medicaid Integrity Program under which the Secretary will promote the integrity of the program by entering into contracts with eligible entities to carry out the activities of subpart C.
(a)
(b)
(a) A program contractor, a person, or an entity employed by, or having a fiduciary relationship with, or who furnishes professional services to a program contractor will not be held to have violated any criminal law and will not be held liable in any civil action, under any law of the United States or of any State (or political subdivision thereof), by reason of the performance of any duty, function, or activity required or authorized under this subpart or under a valid contract entered into under this subpart, provided due care was exercised in that performance and the contractor has a contract with CMS under this subpart.
(b) CMS pays a contractor, a person, or an entity described in paragraph (a) of this section, or anyone who furnishes legal counsel or services to a contractor or person, a sum equal to the reasonable amount of the expenses, as determined by CMS, incurred in connection with the defense of a suit, action, or proceeding, if the following conditions are met:
(1) The suit, action, or proceeding was brought against the contractor, person or entity by a third party and relates to the contractor's, person's or entity's performance of any duty, function, or activity under a contract entered into with CMS under this subpart.
(2) The funds are available.
(3) The expenses are otherwise allowable under the terms of the contract.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule with comment period; correction notice.
This document corrects typographical and technical errors that appeared in the August 29, 2007
This correction notice is effective January 1, 2008.
Sharon Ventura, (410) 786-1985.
FR Doc. 07-4184 of August 29, 2007 (72 FR 49762) contained several typographical and technical errors that this notice serves to identify and correct.
On page 49773, in the second paragraph of the third column, the reference to the McCall report is incomplete. We are correcting the error by providing the complete reference.
In the first column on page 49774, we are clarifying and correcting an erroneous reference to certain V codes in our response to a comment.
In the first full paragraph of the first column on page 49775, we inadvertently imply that a table is included in the August 29, 2007 final rule. However, the referenced table is found in the May 4, 2007 proposed rule. We are correcting this by referencing the proposed rule.
On page 49780, the example in column 1 is revised to reflect the updates made to Table 2A in the final rule with comment period.
On page 49789, in the fourth column of Table 2B, the Short Descriptions of ICD-9-CM codes 161, 162, 163, 164, and 165 incorrectly contain asterisks.
On page 49793, in Table 2B, the ICD-9-CM code 321.8, we inadvertently did not include an ‘M’ next to it under the column titled, “Manifestation codes” in order to properly identify it as a manifestation code.
To more accurately reflect ICD-9-CM coding terminology, we are correcting the Diagnostic Category titles for ICD-9-CM codes V55.0 and V55.5 on page 49817 of Table 2B. In addition we are correcting the Diagnostic Category titles for ICD-9-CM codes V55.5, V55.0, and V55.6 and the Short Descriptions for ICD-9-CM codes V55.5 and V55.0 on page 49855 of Table 10B.
During production of Table 4 on pages 49826 through 49827, the decimal amounts were incorrectly rounded when computing the scaled coefficients. We are revising Table 4 to reflect the corrected rounded amounts.
The average cost amounts in Table 5 on pages 49828 through 49832 were also rounded incorrectly. Therefore, we are revising Table 5 to reflect the average cost of each case-mix group. There are no changes to the relative weights in Table 5.
On page 49833, second paragraph, a negative sign was inadvertently placed before “8.7 percent.”
On page 49844, we incorrectly stated the acronym for the Health Insurance Prospective Payment System (HIPPS) code. The correct acronym is HIPPS. We are correcting the acronym to HIPPS wherever it appears.
On page 49853 the description for Item #5 for selected skin conditions in Table 10A incorrectly includes the words “or other”. Also on page 49853, in the first column of the Note section for Table 10A, we are correcting punctuation errors. Therefore, in the second column of the Note section for Table 10A, the reference to Table 12B should refer to Table 10B. Lastly, we inadvertently excluded a footnote to Table 10A that clarified how points are awarded for ulcer related conditions.
On page 49854, we are correcting the short description of ICD-9-CM code 250.8x & 707.10-707.9 from “(PRIMARY OR FIRST OTHER DIAGNOSIS = 250.8x AND PRIMARY OR FIRST OTHER DIAGNOSIS = 707.10-707.9).” to “(PRIMARY DIAGNOSIS = 250.8x AND OTHER DIAGNOSIS = 707.10-707.9).”
On page 49855, we inadvertently omitted ICD-9-CM code 948 from Table 10B under the traumatic wounds, burns and post-operative complications category. We are adding code 948 and its short description to Table 10B.
Table 12 and 14 contain several typographical errors. The CY 2007 per-visit amount for the speech-language pathology discipline found in the second column of both Table 12 on page
We are correcting errors in the outlier example that begins on page 49870 and continues on page 49871 as well as providing clarifying narrative language. Due to corrections being made to the outlier example, noted below, the utilization used in the outlier example that was published in the final rule would not allow the episode to qualify for an outlier payment. Consequently, we are increasing the number of skilled nursing and home health aide visits in the corrected outlier example of this correction notice.
In addition, in Step 2, on page 49871, in the calculation of the total wage-adjusted fixed dollar loss amount, the NRS amount was inadvertently included as part of the calculation. We are removing the language in Step 2 of the outlier example that incorrectly includes the NRS amount, in order to reflect the correct outlier policy.
In Step 3 of the outlier example, near the bottom of the second column and the top of the third column on page 49871, we incorrectly refer to physical therapy visits as home health aide visits in three instances.
In Step 4 of the outlier example, on page 49871, we incorrectly calculated the costs absorbed by the Home Health Agencies (HHAs) in excess of the outlier threshold by subtracting only the episode payment from the HHA's imputed costs. The sum of the episode payment and the fixed dollar loss amount, which together make up the outlier threshold, should be subtracted from the imputed costs. (This is reflected in the corrected Step 4 of the outlier example in Section III Correction of Errors).
On page 49877, in Table 15 under the impacts by “Type of Facility”, we are correcting a typographical error in the group name for the subtotal for voluntary non-profit HHAs.
During our calculation of the hospital wage index, wage data from two inpatient hospital providers that belong in the Hartford-West Hartford-East Hartford, CT core-based statistical area (CBSA) were inadvertently included in rural Connecticut. Accordingly, in Addendum A, we are revising the wage index value for CBSA Code 07 (rural Connecticut) from 1.1283 to 1.1711. We are also correcting the wage index value in Addendum C as well as correcting the percentage change from CY 2007 to CY 2008 for rural Connecticut to 0.02 percent.
In Addendum B, we are revising the wage index value for CBSA Code 25540 (Hartford-West Hartford-East Hartford, CT) from 1.0937 to 1.0930. We are also correcting the wage index value in Addendum C as well as correcting the percentage change from CY 2007 to CY 2008 for CBSA 25540 to 0.33 percent.
During our calculation of the hospital wage index, wage data from one IPPS hospital was incorrectly assigned to CBSA 16180 (Carson City, NV) and should have been assigned to CBSA 39900 (Reno-Sparks, NV). Accordingly, in Addendum B, we are revising the wage index values for CBSA Code 16180 (Carson City, NV) from 0.9353 to 1.0003 and for CBSA Code 39900 (Reno-Sparks, NV) from 1.0959 to 1.0715. We are also correcting these two wage index errors in Addendum C as well as correcting the percentage change from CY 2007 to CY 2008 for CBSA 16180 and CBSA 39900 to −0.22 percent and −10.43 percent respectively.
In addition, in the footnote of Addendum A, at the end of the second sentence, we are correcting the CY that was referenced as CY 2007, instead of CY 2008. Additionally, we inadvertently left out the last two sentences which more fully describe the wage index values for Massachusetts and Puerto Rico and are correcting the footnote by adding those sentences at the end of the footnote at the bottom of Addendum A.
In Addendum B, on page 49901, the reference to the footnote for CBSA 25980 was incorrectly labeled as footnote “2”, when there is only one footnote for Addendum B. Footnote 2 on page 49932 is also incorrectly labeled. Consequently, the reference to the footnote for CBSA 25980 and the actual footnote should be “1”.
In FR Doc. 07-4184 of August 29, 2007 (72 FR 49762), make the following corrections:
1. On page 49773, in the third column, in the second paragraph, in line 6, replace “(McCall
2. On page 49774, in the first column, in the fifth full paragraph, in line 8, revise “However, we have tested the non-routine supplies for stoma conditions for which we have added appropriate “status (V44) V-codes” and “attention (V55) V-codes” to the model.” to read “However, we have tested both the case-mix model and the non-routine supplies model for stoma conditions, and as a result we have added appropriate “attention to” V-codes (selected codes within V55) to the scoring systems”.
3. On page 49775, in the first column, in the first full paragraph, in lines 13 and 14, revise “(please see Table 2A at the end of section III.B.5)” to read “(please see Table 2A in the May 4, 2007 HH PPS proposed rule)”.
4. On page 49780, in the first column, in line 6, revise “Items 16 and 17” to read “Items 15, 16, and 17”. Also, in the first column of page 49780, in line 7, revise “both” to read “all three”.
5. On page 49789, in Table 2B, in the fourth column, in lines 3 through 7, remove the asterisk at the end of each Short Description of ICD-9-CM codes 161, 162, 163, 164, and 165.
6. On page 49793, in the third column of Table 2B, in line 6 from the bottom, insert an “M” next to the ICD-9-CM code “321.8”.
7. On page 49817, in the first column of Table 2B, “Tracheostomy care” is corrected to read “Tracheostomy”. Similarly, “Urostomy/Cystostomy care” is corrected to read “Urostomy/Cystostomy”.
8. On pages 49826 and 49827, Table 4 is corrected to read as follows:
9. On pages 49828 through 49832, Table 5 is corrected to read as follows:
10. On page 49833, in the first column, in the second paragraph, in line 18 from the bottom, remove the “−” (minus sign) in front of “8.7 percent”.
11. On page 49844, in the first column, in the first full paragraph, in line 8, “HIHH PPS” is corrected to read “HIPPS”. Also, on page 49844, in the second column, “HIHH PPS” is corrected to read “HIPPS” in lines 2, 4, and 14.
12. On page 49853, in the second column of Table 10A, in line 5, the description for Item #5 “Primary or other diagnosis=Diabetic ulcers” is corrected to read “Primary diagnosis = Diabetic ulcers”. Also in Table 10A, add “[*]” (an asterisk enclosed in brackets) at the end of lines 5 and 10. Also on page 49853, in the first column of the “Note” for Table 10A, in line 1, replace the “,” after the word “additive” with a “;”. Also in line 1, add a “,” after the word “however”.
In the second column of the “Note” for Table 10A, in line 2, “Table 12b” is corrected to read “Table 10B”. Lastly, on page 49853, add the following footnote, referenced by the “[*]” at the end of lines 5 and 10 in Table 10A, to the end of the current Note: “*If an episode receives points for diabetic ulcers, it cannot also receive points for “Non-pressure and non-stasis ulcers.”
13. On page 49854, in the fourth column of Table 10B, in lines 7 and 8, revise “(PRIMARY OR FIRST OTHER DIAGNOSIS = 250.8x AND PRIMARY OR FIRST OTHER DIAGNOSIS = 707.10-707.9).” to read “(PRIMARY DIAGNOSIS = 250.8x AND OTHER DIAGNOSIS = 707.10-707.9).”
14. On page 49855, in the second column of Table 10B, below ICD-9-cm code 946.5, insert “948”. In addition, in column 4 of Table 10B, insert the short description of ICD-9-CM code 948 directly under the short description of code 946.5. The short description for 948 should read, “BURN CLASS ACCORD-BODY SURF INVOLVED”.
15. On page 49855, in the first column of Table 10B, delete the word “Care” from the Diagnostic Category titles for ICD-9-CM codes V55.5, V55.0, and V55.6. In addition, in the fourth column of Table 10B, delete the word “CARE” from the Short Descriptions for ICD-9-CM codes V55.5 and V55.0.
16. On page 49868, in Table 12, in the second column, the CY 2007 per-visit amount “121.22” for speech-language pathology, is corrected to read “121.32”. In addition, in the fifth column, the CY 2008 per-visit amount “124.54” for speech-language pathology is corrected to read “124.65.”
17. On page 49870, on the bottom of the page, beginning in the first column, remove the language that begins with “Outlier payments are determined” through page 49871, in the third column, line 26 that ends with “episode, including the outlier payment.” Replace the previous outlier example with the following:
Outlier payments are determined and calculated using the same methodology that has been used since the implementation of the HH PPS.
Example 3 details the calculation of an outlier payment.
The outlier payment amount is the product of the imputed amount in excess of the outlier threshold absorbed by the HHA and the loss sharing ratio. The outlier payment is added to the sum of the wage and case-mix adjusted 60-day episode amount. The steps to calculate the total episode payment, including an outlier payment, are given below.
For this example, assume that a beneficiary lives in Greenville, SC and that the episode in question began and ended in CY 2008. The episode has a case-mix severity = C3F3S5, and is a second episode with 98 visits (40 skilled nursing, 45 home health aide visits, and 13 physical therapy visits). The beneficiary had 105 NRS points, for an NRS severity level = 6. Therefore, from Table 9, the NRS payment amount = $551.00; from Table 5, the case-mix weight = 1.9413; and from Addendum B, the wage index = 0.9860.
1. Calculate case-mix and wage-adjusted 60-day episode payment, including NRS.
National standardized 60-day episode payment amount for episodes beginning and ending in CY 2008
Calculate the case-mix adjusted episode payment:
Multiply the national standardized 60-day episode payment by the applicable case-mix weight:
Divide the case-mix adjusted episode payment into the labor and non-labor portions:
Wage-adjust the labor portion by multiplying it by the wage index factor for Greenville, SC:
Add wage-adjusted labor portion to the non-labor portion to calculate the total case-mix and wage-adjusted 60-day episode payment before NRS added:
Add NRS amount to get the total case-mix and wage-adjusted 60-day episode payment, including NRS:
2. Calculate wage-adjusted outlier threshold.
Fixed dollar loss amount = national standardized 60-day episode payment multiplied by 0.89 FDL:
Divide fixed dollar loss amount into labor and non-labor portions:
Wage-adjust the labor portion by multiplying the labor portion of the fixed dollar loss amount by the wage index:
Calculate the wage-adjusted fixed dollar loss amount by adding the wage-adjusted portion of the fixed dollar loss amount to the non-labor portion of the fixed dollar loss amount:
Add the case-mix and wage-adjusted 60-day episode amount including NRS and the wage-adjusted fixed dollar loss amount to get the wage-adjusted outlier threshold:
3. Calculate the wage-adjusted imputed cost of the episode.
Multiply the total number of visits by the national average per-visit amounts listed in Table 12:
Calculate the wage-adjusted labor and nonlabor portions for the imputed skilled nursing visit costs:
Adjust the labor portion of the skilled nursing visits by the wage index:
Add the wage-adjusted labor portion of the skilled nursing visits to the non-labor portion for the total wage-adjusted imputed costs for skilled nursing visits:
Calculate the wage-adjusted labor and non-labor portions for the imputed home health aide visits:
Adjust the labor portion of the home health aide visits by the wage index:
Add the wage-adjusted labor portion of the home health aide visits to the non-labor portion for the total wage-adjusted imputed costs for home health aide visits:
Calculate the wage-adjusted labor and non-labor portions for the imputed physical therapy visits:
Adjust the labor portion of the physical therapy visits by the wage index:
Add the wage-adjusted labor portion of the physical therapy visits to the non-labor portion for the total wage-adjusted imputed costs for physical therapy visits:
Total wage adjusted imputed per-visit costs for skilled nursing, home health aide, and physical therapy visits during the 60-day episode:
4. Calculate the amount absorbed by the HHA in excess of the outlier threshold.
Subtract the outlier threshold from (2) from the total wage-adjusted imputed per-visit costs for the episode from (3).
5. Calculate the outlier payment and total episode payment.
Multiply the imputed amount in excess of the outlier threshold absorbed by the HHA from (4) by the loss sharing ratio of 0.80:
Add the outlier payment to the case-mix and wage-adjusted 60-day episode payment, including NRS, calculated in (1):
$5,576.04 equals the total payment for the episode, including the outlier payment.
18. On page 49873, in Table 14, in the second column, the CY 2007 per-visit amount “121.22” for speech-language pathology, is corrected to read “121.32”. In addition, in the fifth column, the CY 2008 per-visit amount “122.13” for speech-language pathology is corrected to read “122.23”.
19. On page 49877, in the first column of Table 15, under the impacts by “Type of Facility”, revise the group name “Subtotal: Vol/PNP” to read “Subtotal: Vol/NP”.
20. On page 49880, in Addendum A, in the third column, in line 7, the entry “1.1283” that is displayed as the wage index for CBSA code 07 (rural Connecticut) is corrected to read “1.1711”.
21. On page 49881, in the footnote at the bottom of Addendum A, CY 2007 is corrected to read CY 2008. Additionally, we are correcting the footnote at the bottom of Addendum A to read, “
22. On page 49890, in Addendum A, in the third column, the entry “0.9353” that is displayed as the wage index for CBSA code 16180 (Carson City, NV) is corrected to read “1.0003”.
23. On page 49901, in Addendum B, in the third column, the entry “1.0937” that is displayed as the wage index value for CBSA code 25540 (Hartford-West Hartford-East Hartford, CT) is corrected to read “1.0930”.
24. On page 49901, in Addendum B, the reference to the footnote for CBSA 25980 and on page 49932 the actual footnote are corrected to read “1”.
25. On page 49918, in Addendum B, in the third column, the entry “1.0959” that is displayed as the wage index for CBSA code 39900 (Reno-Sparks, NV) is corrected to read “1.0715”.
26. On pages 49933, in Addendum C, in the fourth column, in line 7, the entry “1.1283” that is displayed as the wage index for CBSA code 07 (rural Connecticut) is corrected to read “1.1711”. In addition, on page 49933, in Addendum C, in the fifth column, in line 7, the entry of “−3.64” that is displayed as the percent change from CY 07 to CY 08 for CBSA 07 is corrected to read “0.02”.
27. On page 49936, in Addendum C, in the fourth column, in line 14 from the bottom, the entry of “0.9353” that is displayed as the wage index for CBSA code 16180 (Carson City, NV) is corrected to read “1.0003”. In addition, on page 49936, in the fifth column, the entry “−6.70” that is displayed as the percent change from CY 07 to CY 08 for CBSA 16180 is corrected to read “−0.22”.
28. On page 49939, in Addendum C, in the fourth column, in line 3, the entry “1.0937” that is displayed as the wage index for CBSA code 25540 (Hartford-West Hartford-East Hartford, CT) is corrected to read “1.0930”. In addition, on page 49939, in the fifth column, in line 4, the entry “0.39” that is displayed as the percent change from CY 07 to CY 08 for CBSA 25540 is corrected to read “0.33”.
29. On page 49943, in Addendum C, in the fourth column, the entry of “1.0959” that is displayed as the wage index for CBSA code 39900 (Reno-Sparks, NV) is corrected to read “1.0715”. In addition, on page 49943, in the fifth column, the entry “−8.39” that is displayed as the percent change from CY 07 to CY 08 for CBSA 39900 is corrected to read “−10.43”.
We ordinarily publish a notice of proposed rulemaking in the
We find for good cause that it is unnecessary to undertake notice and comment rulemaking because this notice merely provides typographical and technical corrections to the regulations. We are not making substantive changes to our payment methodologies or policies, but rather, are simply implementing correctly the payment methodologies and policies that we previously proposed, received comment on, and subsequently finalized. The public has already had the opportunity to comment on these payment methodologies and policies, and this correction notice is intended solely to ensure that the CY 2008 HH PPS final rule accurately reflects them. Therefore, we believe that undertaking further notice and comment procedures to incorporate these corrections into the CY 2008 HH PPS final rule is unnecessary and contrary to the public interest.
Federal Emergency Management Agency, DHS.
Interim rule.
This interim rule lists communities where modification of the Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Maps (FIRMs) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Mitigation Assistant Administrator of FEMA reconsider the changes. The modified BFEs may be changed during the 90-day period.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
William R. Blanton, Jr., Engineering Management Section, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3151.
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities. The changes BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Federal Communications Commission.
Final rule.
At the request of Laramie Mountain Broadcasting, LLC, Channel 281A is allotted at Silverton, Colorado, as the community's second local aural transmission service. Channel 281A is allotted at Silverton, Colorado, without a site restriction at coordinates 37-48-43 NL and 107-39-50 WL.
Effective December 17, 2007.
Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Victoria McCauley, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Report and Order, MB Docket No. 07-130, adopted October 31, 2007, and released November 2, 2007. The
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Laramie Mountain Broadcasting, LLC, allots Channel 226C3 at Walden, Colorado, as the community's second local FM service. Channel 226C3 can be allotted to Walden, Colorado, in compliance with the Commission's minimum distance separation requirements with a site restriction of 20.6 km (12.8 miles) west of Walden, at the following reference coordinates: 40-42-01 North Latitude and 106-31-21 West Longitude.
Effective December 17, 2007.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Deborah Dupont, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Cumulus Licensing LLC, allots Channel 272C3 at Humboldt, Nebraska, as the community's first local FM service. Channel 272C3 can be allotted to Humboldt, Nebraska, in compliance with the Commission's minimum distance separation requirements without site restriction at city reference coordinates: 40-09-51 North Latitude and 95-56-40 West Longitude.
Effective December 17, 2007.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Deborah Dupont, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Correcting amendment.
NMFS issues this correcting amendment to the Code of Federal Regulations (CFR) to correct typographical errors and update cross references in three sections of the Pacific halibut fishery regulations; definitions, catch sharing plan and domestic management measures in waters in and off Alaska, and prohibitions. This correcting amendment improves the accuracy of Pacific halibut fisheries regulations, makes minor, non-substantive changes, and does not change operating practices in halibut fisheries or the rights and obligations of fishermen managed under the halibut regulations.
November 30, 2007.
Peggy Murphy, NMFS, 907-586-7228 or email at
The International Pacific Halibut Commission (Commission) and NMFS manage fishing for Pacific halibut (
The Council implemented guideline harvest levels (GHL) in Commission regulatory areas 2C and 3A on August 8, 2003, to more comprehensively manage the charter vessel fishery for Pacific halibut stocks in waters in and off Alaska (68 FR 47256). The final rule added a text table at § 300.65(c)(1) with typographical errors in the column headings.
Also, the estimated charter vessel harvest of halibut in Commission regulatory area 2C in 2006 exceeded the GHL specified for that area. This triggered issuance of a regulation to restrict the size of fish harvested in the 2007 fishing season and reduce the charter vessel harvest of halibut in Area 2C. A final rule implementing this regulation was effective June 1, 2007 (June 4, 72 FR 30714). If the final rule were not effective by this date, the conservation and management objective of the action would have been jeopardized because the estimated reduction in weight of halibut caught in the Area 2C charter vessel fishery was based on an assumption that the final rule would be effective for the full charter fishing season of June, July and August. Effort was escalated to complete the proposed and final rule making process and good cause was found by the Assistant Administrator for Fisheries, NOAA to waive the 30-day delay in the effective date of the action under 5 U.S.C. 553(d)(3). The final rule did not change the existing daily bag limit of two halibut, but required that one of the two fish retained by persons sport fishing on a charter vessel operating in Area 2C be no more than 32 inches (81.3 cm) in length. The rule added a new paragraph, (d), to § 300.65 incrementing the alphabetic reference to existing paragraphs (d) through (k) to (e) through (l), respectively. However, in our haste, NMFS did not update the cross references to paragraphs that had changed after the new paragraph (d) was added. Only the first level paragraph designations were changed, subparagraphs designations erroneously remained unchanged.
This correcting amendment is necessary to correct the typographical errors in the column headings to the GHL table at § 300.65(c)(1) and update cross references to paragraphs in the CFR at § 300.61, 300.65, and 300.66. Minor errors in spacing between words are also corrected at § 300.65(c)(2) and § 300.65(k) and an indefinite article is corrected at § 300.65(k)(2)(i)(D). These changes are needed to provide consistent reference, and make the regulations more understandable and effective.
The GHL table is structured conditionally, so if specified criteria are met, then a particular action or outcome is defined to occur. In this case, when the annual total constant exploitation yield for halibut in Area 2C (or 3A) is more than one of the poundages (tonnages) listed, then the annual GHL is set to the corresponding poundage (tonnage) specified for that area (2C or 3A). Currently, the column headings read “than” instead of “then,” so the intended functional comparison using “If/Then” statements need to be corrected to make sense.
Current paragraph lettering at §§ 300.61, 300.65, and 300.66 is correct but cross references to paragraphs are incorrect and need to updated.
The text of each change is set forth in sequential order in the add/remove table of this correcting amendment. NMFS chose to display these changes in a table because simple changes are more efficiently shown in an add/remove table than by reprinting the full regulatory text.
Pursuant to 5 U.S.C. 553(b)(B) of the Administrative Procedure Act, the Assistant Administrator for Fisheries finds good cause to waive the requirement to provide prior notice and opportunity for public comment on this correcting amendment to the Pacific halibut fisheries regulations. Notice and comment are unnecessary and contrary to the public interest because this action makes only minor, non-substantive changes to correct typographical errors in a table's column headings, and updates paragraph and section cross references. Minimizing the duration of time the errors are published will reduce reader confusion. Timely correction of the rule will improve public understanding of the regulations. The rule does not make any substantive change in the rights and obligations of halibut fishermen. No change in operating practices in the fisheries is required. Because this action makes only the minor, non-substantive change to § 300.61, 300.65, and 300.66 described above, this rule is not subject to the 30-day delay in effective date requirement of 5 U.S.C. 553(d).
Alaska, Fisheries, Recordkeeping and reporting requirements.
16 U.S.C. 773-773k.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; trip limit change.
NMFS announces that the Administrator, Northeast (NE) Region, NMFS (Regional Administrator), is increasing the Georges Bank (GB) yellowtail flounder trip limit to 7,500 lb (3,402 kg) for NE multispecies days-at-sea (DAS) vessels fishing in the U.S./Canada Management Area. This action is authorized by the regulations implementing Amendment 13 to the NE Multispecies Fishery Management Plan and is intended to prevent under-harvesting of the Total Allowable Catch (TAC) for GB yellowtail flounder while ensuring that the TAC will not be exceeded during the 2007 fishing year. This action is being taken to provide additional opportunities for vessels to fully harvest the GB yellowtail flounder TAC under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Effective November 27, 2007, through April 30, 2008.
Mark Grant, Fishery Management Specialist, (978) 281-9145, fax (978) 281-9135.
Regulations governing the GB yellowtail flounder landing limit within the U.S./Canada Management Area are found at § 648.85(a)(3)(iv)(C) and (D). The regulations authorize vessels issued a valid Federal limited access NE multispecies permit and fishing under a NE multispecies DAS to fish in the U.S./Canada Management Area, as defined at § 648.85(a)(1), under specific conditions. The TAC for GB yellowtail flounder for the 2007 fishing year (May 1, 2007 - April 30, 2008) is 900 mt. The regulations at § 648.85(a)(3)(iv)(D) authorize the Regional Administrator to increase or decrease the trip limits in the U.S./Canada Management Area to prevent over-harvesting or under-harvesting the TAC allocation.
On April 24, 2007 (72 FR 20287), based upon the reduced 2007 TAC for GB yellowtail flounder (a 43 reduction from 2006) and projections of harvest rates in the fishery, the trip limit for GB yellowtail flounder was set at 3,000 lb (1,361 kg) for the 2007 fishing year, to prevent the over-harvest of the 2007 GB yellowtail flounder TAC, to prevent a premature closure of the Eastern U.S./Canada Management Area and, therefore, reduced opportunities to fish for Eastern GB cod and haddock in the Eastern U.S./Canada Area.
According to the most recent Vessel Monitoring System (VMS) reports and other available information, only 45 percent of the TAC had been harvested as of November 21, 2007. Of this total, discards account for over 36 percent of the GB yellowtail harvest to date. Based on this information, the Regional Administrator has determined that the current rate of harvest will result in the under-harvest of the GB yellowtail flounder TAC during the 2007 fishing year. Increasing the GB yellowtail flounder trip limit from 3,000 lb (1,361 kg) to 7,500 lb (3,402 kg) is expected to increase landings of GB yellowtail flounder, reduce discards, and result in the achievement of the TAC during the fishing year without exceeding it. Based on this information, the Regional Administrator is increasing the current 3,000-lb (1,361-kg) trip limit in the U.S./Canada Area to 7,500 lb (3,402 kg), effective November 27, 2007, through April 30, 2008. GB yellowtail flounder landings will continue to be closely monitored. Should 100 percent of the TAC allocation for GB yellowtail flounder be projected to be harvested, the Eastern U.S./Canada Management Area will close to all groundfish DAS vessels, and all vessels will be prohibited from harvesting, possessing, or landing yellowtail flounder from the U.S./Canada Management Area for the remainder of the fishing year.
This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), there is good cause to waive prior notice and opportunity for public comment, as well as the delayed effectiveness for this action, because prior notice and comment and a delayed effectiveness would be impracticable and contrary to the public interest. This action would relieve a restriction by increasing the trip limit for GB yellowtail flounder for all NE multispecies DAS vessels through April 30, 2008, to facilitate the harvest of the TAC for GB yellowtail flounder while ensuring that the TAC will not be exceeded during the 2007 fishing year. This will result in decreased regulatory discards of GB yellowtail flounder, increased revenue for the NE multispecies fishery, and an increased chance of achieving optimum yield in the groundfish fishery.
This action is authorized by the regulations at § 648.85(a)(3)(iv)(D) to facilitate achieving the U.S./Canada Management Area TACs. It is important to take this action immediately because the current restrictive GB yellowtail flounder trip limit (3,000 lb, 1,361 kg) has resulted in a high discard rate of GB yellowtail flounder (36 percent) and has prevented the NE multispecies fishery from harvesting the TAC at a rate that will result in complete harvest by the end of the 2007 fishing year. Delay in the implementation of this action could result in further wasteful discards of GB yellowtail flounder and decrease the opportunity available for vessels to fully harvest the 2007 GB yellowtail flounder TAC.
The time necessary to provide for prior notice, opportunity for public comment, and delayed effectiveness for this action would prevent NE multispecies DAS vessels from efficiently targeting GB yellowtail flounder in the U.S./Canada Management Area. The Regional Administrator's authority to increase trip limits for GB yellowtail flounder in the U.S./Canada Management Area to help ensure that the shared U.S./Canada stocks of fish are harvested, but not exceeded, was considered and open to public comment during the development of Amendment 13 and Framework Adjustment 42. Further, the potential of increasing the GB yellowtail flounder trip limit was announced to the public when the 3,000-lb (1,361-kg) trip limit was announced prior to the start of the 2007 fishing year. Therefore, any negative effect the waiving of public comment and delayed effectiveness may have on the public is mitigated by these factors.
16 U.S.C. 1801
Executive Office for Immigration Review, Justice.
Proposed rule with request for comments.
The immigration laws provide that an alien may request and receive a grant of voluntary departure in certain cases; such a grant allows an alien to depart voluntarily during a specified period of time after the order is issued, in lieu of being removed under an order of removal. Voluntary departure is an agreed upon exchange of benefits between the alien and the government that provides tangible benefits for aliens who do depart during the time allowed. There are severe statutory penalties, however, for aliens who voluntarily fail to depart during the time allowed for voluntary departure. This proposed rule would amend the Department of Justice (Department) regulations regarding voluntary departure to allow an alien to elect to file a motion to reopen or reconsider, but also to provide that the alien's filing of a motion to reopen or reconsider prior to the expiration of the voluntary departure period will have the effect of automatically terminating the grant of voluntary departure. Similarly, the rule also provides that the alien's filing of a petition for judicial review shall automatically terminate the grant of voluntary departure. In other words, the rule would afford the alien the option either to abide by the terms of the grant of voluntary departure, in lieu of an order of removal, or to forgo the benefits of voluntary departure and instead challenge the final order on the merits in a motion to reopen or reconsider or a petition for review. If the alien elects to seek further review and forgo voluntary departure, the alien will be subject to the alternate order of removal that was issued in conjunction with the grant of voluntary departure, similar to other aliens who were found to be removable. But this approach also means he or she will not be subject to the penalties for failure to depart voluntarily.
The rule also amends the bond provisions for voluntary departure to make clear that an alien's failure to post a voluntary departure bond as required will not have the effect of exempting the alien from the penalties for failure to depart under the grant of voluntary departure. Aliens who are required to post a voluntary departure bond remain liable for the amount of the voluntary departure bond if they do not depart as they had agreed. However, the rule clarifies the circumstances in which aliens will be able to get a refund of the bond amount upon proof that they are physically outside of the United States. In addition, the rule provides that, at the time the immigration judge issues a grant of voluntary departure, the immigration judge will also set a specific dollar amount of not less than $3,000 as a civil money penalty if the alien voluntarily fails to depart within the time allowed.
Written comments must be submitted on or before January 29, 2008.
You may submit comments, identified by EOIR Docket No. 163P, by one of the following methods:
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Kevin Chapman, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not a toll-free call).
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. Comments that will provide the most assistance to the Department of Justice will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.
The Immigration and Nationality Act (INA or Act) provides that, as an alternative to formal removal proceedings and entry of a formal removal order, “[t]he Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense.” INA 240B(a)(1), (b)(1) (8 U.S.C. 1229c(a)(1), (b)(1)).
Pursuant to the Homeland Security Act of 2002, Pub. L. 107-296, the functions previously exercised by the former Immigration and Naturalization Service were transferred to the Department of Homeland Security (DHS), while the immigration judges and the Board of Immigration Appeals (Board) were retained in the Department of Justice under the authority of the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g). Accordingly, DHS now has the authority to grant voluntary departure under section 240B(a) of the Act in lieu of placing the alien in
Prior to 1996, the authority for voluntary departure was found in former section 244(e) of the Act, which contained no time limitations on the period for which voluntary departure could be valid. However, in 1996 Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Public Law 104-208, Div. C, which significantly amended the Act, including provisions relating to voluntary departure. Reforms to voluntary departure included enacting restrictions limiting the time for which voluntary departure may be authorized, and enacting provisions to increase compliance by aliens who request grants of voluntary departure. The statutory changes made by IIRIRA to voluntary departure remain in effect.
Currently, prior to completion of removal proceedings an immigration judge may permit an alien to depart the United States voluntarily, if certain conditions are met, within a total period not to exceed 120 days. INA 240B(a)(2)(A) (8 U.S.C. 1229c(a)(2)(A)); 8 CFR 1240.26(b). Among these conditions is an agreement by the alien not to file an appeal. 8 CFR 1240.26(b)(1)(D).
At the conclusion of removal proceedings, additional conditions are applicable, but the alien is not required to waive the filing of an appeal to the Board. The immigration judge may permit an alien to depart the United States voluntarily only within a total period of no more than 60 days. INA 240B(b)(2) (8 U.S.C. 1229c(b)(2)); 8 CFR 1240.26(c). Where the period of voluntary departure granted by the immigration judge or the Board is less than the statutory maximum, DHS also has authority to grant an extension of voluntary departure up to the statutory maximum of 120 or 60 days.
Because the Act provides that the Attorney General “may” permit an alien to depart voluntarily, the determination whether to allow an alien in removal proceedings to depart voluntarily is within the discretion of the Attorney General and of the immigration judges and the Board, who act on his behalf. The Act further provides that “[t]he Attorney General may by regulation limit eligibility for voluntary departure under this section for any class or classes of aliens. No court may review any regulation issued under this subsection.” INA 240B(e) (8 U.S.C. 1229c(e)).
Voluntary departure “is a privilege granted to an alien in lieu of deportation.”
“If an alien chooses to seek [voluntary departure]—and that choice is entirely up to the alien—it can produce a win-win situation.”
However, “[t]he benefits normally associated with voluntary departure come with corollary responsibilities. An alien who permits his voluntary departure period to run and fails to leave the country before the expiration date faces severe sanctions; these may include forfeiture of the required bond, a fine, and a ten-year interval of ineligibility for certain forms of immigration-related relief.”
Exceptions to or extensions of the voluntary departure period authorized by Congress run counter to the statutory purpose. The court in
The Fourth Circuit summed up voluntary departure as follows:
[V]oluntary departure is, from beginning to end, voluntary. The alien must request the relief; it is not offered as a matter of course. Even if he requests the relief and obtains it, the alien may later reject it by overstaying the
This rule applies to all orders granting voluntary departure by an immigration judge, but the proposed changes relate primarily to orders granting voluntary departure to an alien at the conclusion of removal proceedings, pursuant to the provisions of section 240B(b) of the Act and 8 CFR 1240.26(c). At that stage of the proceedings, voluntary departure is not a relevant issue unless the immigration judge or the Board has already found that the alien is removable under section 212 or 237 of the Act (8 U.S.C. 1182, 1227). Moreover, voluntary departure is not a relevant issue unless the immigration judge or the Board is denying all of the alien's other applications for relief or protection of removal (such as asylum, withholding of removal, cancellation of removal, adjustment of status, waivers, etc.), as the issue of voluntary departure would be moot if the alien were granted any relief or protection from removal. Thus, at the request of the alien, and based on the alien's statement of his or her ability and intent to depart the United States within the period allowed for voluntary departure, the immigration judge's grant of voluntary departure permits the alien to depart voluntarily, within a fixed period of time, instead of subjecting the removable alien to an order of removal. However, a grant of voluntary departure issued at the conclusion of proceedings also includes an alternate order of removal, which takes effect automatically if the alien fails voluntarily to depart during the time allowed.
Under the current regulations, as well as under this proposed rule, an alien who is granted voluntary departure at the conclusion of proceedings before the immigration judge is still able to file an appeal to the Board and present any arguments with respect to the merits of the alien's removability and eligibility for any form of relief or protection from removal. If neither party appeals the immigration judge's decision, then the decision becomes final and the period of time for voluntary departure runs from the date of the immigration judge's grant of voluntary departure. However, in every case where the alien does file a timely appeal to the Board, the immigration judge's order is not final, and the time period for voluntary departure does not begin to run until after the conclusion of the Board's adjudication of the merits of the alien's appeal. If the Board reverses the immigration judge's decision on the merits or remands the case to the immigration judge for further proceedings, the grant of voluntary departure is rendered moot by virtue of the Board's decision. In the event of a remand, the issue of the alien's eligibility for and desire to receive voluntary departure will again be before the immigration judge as part of the remanded proceedings. Thus, it is only in those cases where the Board rejects all of the alien's arguments relating to removability and to relief or protection from removal that the order granting voluntary departure actually takes effect and the alien is obligated to depart from the United States within the specified period (no more than 60 days).
Once the immigration judge or Board issues a final order in a case, regardless of whether it grants voluntary departure, the alien has the option under the Act and implementing regulations to file a motion to reopen or a motion seeking to have the decision reconsidered.
Prior to the statutory codification of the regulatory provisions on reopening and reconsideration, the Board held in
In the 1996 legislation, Congress enacted section 240(c)(6) and (7) of the Act (8 U.S.C. 1229a(c)(6) and (7)), which substantially codified existing regulatory provisions. Paragraph (6) allows an alien in removal proceedings to file one motion to reconsider and provides that such a motion must be filed within 30 days of the date of entry of a final removal order in his or her removal proceedings. Paragraph (7) allows an alien to file one motion to reopen removal proceedings and provides that such a motion must be filed within 90 days of the date of entry of a final administrative order of removal.
After publication of a proposed rule on January 3, 1997, the Department of Justice published an interim rule implementing the provisions of IIRIRA on March 6, 1997. See 62 FR 10312. The supplementary information for the interim rule requested comments on what position the final, permanent rules should take on the effect on the voluntary departure period of an appeal from an immigration judge to the Board, a petition for review of a Board decision in the court of appeals, or a motion to reopen or reconsider filed with an immigration judge or the Board:
[S]everal commenters requested clarification regarding the effect of a motion or appeal to the Immigration Court, BIA, or a federal court on any period of voluntary departure already granted. Since an alien granted voluntary departure prior to completion of proceedings must concede removeability [sic] and agree to waive pursuit of any alternative form of relief, no such appeal or motion would be possible in this situation. Regarding post-hearing voluntary departure, the Department considered several options, but has not adopted any position or modified the interim rule. The Department has identified three possible options: no tolling of any period of voluntary departure; tolling the voluntary departure period for any
Although no final rule directly addressing those issues has been published, the current regulations are consistent with the Department's longstanding view that the filing of a motion to reopen does not suspend a period of voluntary departure. The regulations do not state that the conclusion reached by the Board in
An immigration judge or the Board may reinstate voluntary departure in a removal proceeding that has been reopened for a purpose other than solely making application for voluntary departure,
As a practical matter, it is often the case that an immigration judge or the Board cannot reasonably be expected to adjudicate a motion to reopen or reconsider during the voluntary departure period, particularly since the voluntary departure period under section 240B(b) of the Act is limited to no more than 60 days. Many motions to reopen are filed by the alien one or two days before the end of the 60-day voluntary departure period, thereby making it impossible to resolve the matter before the period allowed for voluntary departure expires.
Because of the relatively short period of time allowed for voluntary departure after a final administrative order (no more than 60 days), and the time needed as a practical matter to adjudicate motions to reopen or reconsider, aliens who file a motion to reopen or reconsider may face a choice. Some aliens may choose to remain in the United States beyond the voluntary departure period in order to await the decision of the Board on the motion, thereby incurring the statutory penalties because of their failure to depart as they had promised to do. For example, if a decision on the motion is not issued until after the period allowed for voluntary departure has expired, which is frequently the case, then the 10-year bar on obtaining adjustment of status may be deemed to apply by operation of 8 U.S.C. 1229c(d) because of the alien's failure to depart. Other aliens may choose to depart the United States in compliance with the grant of voluntary departure, even though they have not yet received a decision on their motion, in order to avoid the voluntary departure penalties. However, under the current regulations the alien's departure from the United States has the effect of automatically withdrawing the alien's motion. 8 CFR 1003.2(d); see also 8 CFR 1003.23(b)(1) (similar rule for departure after filing a post-decision motion with the immigration judge).
The courts of appeals are divided on the question of how the filing of a motion to reopen impacts a grant of voluntary departure. Four circuits have held that the timely filing of a motion to reopen during the voluntary departure period automatically “tolls” the period allowed for voluntary departure. See
Under current judicial precedents in some circuits the voluntary departure process as it is being applied bears little resemblance to the statutory mandate that the alien who requests and is granted voluntary departure at the conclusion of removal proceedings is expected to depart voluntarily no more than 60 days after the administrative order becomes final. In some circuits, as noted above, the filing of a motion to reopen or reconsider has the effect of automatically tolling the time period for voluntary departure, allowing the alien to remain in the United States until the motion is adjudicated. The result in these circuits is that some aliens who have received a final administrative order, after appealing to the Board, are able to remain in the United States to pursue the full panoply of means to challenge the final decision through administrative motions to reopen or reconsider (including in some cases the filing of a motion to reconsider the denial of a motion to reopen). Those processes, of course, can take many months to accomplish. Thus, contrary to the incentives and benefits of voluntary departure that result if an alien actually
Contrary to the decisions of those courts of appeals, the Department's interpretation of the Act and the existing regulations is that the filing of a motion to reconsider or reopen under section 240(c)(6) or (7) of the INA (8 U.S.C. 1229a(c)(6) or (7)) does not automatically toll the voluntary departure period, and that such tolling is not necessary in order to give effect to both the INA's provision for an alien to file a motion to reopen and its provision authorizing the Attorney General to permit voluntary departure. As the Fourth Circuit has explained, the “voluntary departure provision” establishing the maximum departure period of 60 or 120 days “applies to certain removable aliens” who qualify for that relief, “while the motion to reopen provision applies to all aliens subject to removal.”
That was the conclusion reached by the Board in Shaar under the reopening regulations that were codified in the 1996 amendments made by IIRIRA, and there is no indication in those amendments or their legislative history that they overturned the rule of Shaar. To the contrary, a rule of automatic tolling, with resulting delay, of voluntary departure would be contrary to Congress's decision in the 1996 amendments to impose strict time limits on the voluntary departure period. Indeed, “mandat[ing] tolling of the voluntary departure period when an alien files a motion to reopen would have the effect of rendering the time limits for voluntary departure meaningless.”
The Supreme Court recently granted certiorari to review a decision by the Fifth Circuit with respect to the effect of filing a motion to reopen, in order to resolve the circuit split under existing law.
As a result of the varying judicial interpretations in the different regional circuits, there is a substantial geographic disparity with respect to how voluntary departure is administered, depending solely on the location of the hearing before the immigration judge. Experience also has shown that the current regulatory framework can lead to significant delays in promoting and effectuating voluntary departure after a final administrative order is entered. Though such disparities of interpretation among the circuits occur in other contexts as well, there are sound public policy reasons for the Attorney General to promote a greater measure of uniformity and expedition in the administration of the immigration laws. The goals of promoting uniformity of interpretation and assuring prompt voluntary departure underlie this proposed rule.
Circuit court decisions holding that the filing of motions to reopen or reconsider tolls the running of a voluntary departure period do not prevent the Department of Justice from rendering an authoritative construction of the Act that does not require tolling, as it does now in issuing these rules. “Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.”
Nor do the various judicial decisions under the current regulatory framework preclude the Attorney General from adopting a different regulatory scheme for the future within the broad parameters of the statutory provisions enacted by Congress. Congress clearly provided for the Attorney General to have broad authority to implement the voluntary departure provisions of the Act and to limit eligibility for voluntary departure for specified classes or categories of aliens, as provided in section 240B(e) of the Act. The provisions of this rule are an exercise of these statutory authorities. These new rules will be applicable to grants of voluntary departure that will be made in the future, after these rules are finalized, and will not affect any cases in which a grant of voluntary departure was made prior to their adoption.
The voluntary departure statute does not unambiguously provide that permission to depart voluntarily is irrevocable once granted, such that aliens permitted to depart voluntarily by an immigration judge must always be viewed as having been “permitted to depart voluntarily” for purposes of 8 U.S.C. 1229c(d). Accordingly, the Attorney General retains discretion and authority to provide, by regulation, that permission to depart voluntarily is conditioned upon the alien's agreeing to accept the finality of the Board's order after it is issued (or the finality of the immigration judge's order if there is no appeal), and depart within the period allowed for voluntary departure thereafter, without seeking to challenge the final order by filing a motion to reopen or reconsider.
That is what these proposed rules would do, by providing that permission to depart voluntarily, following entry of a final order, will terminate if the alien files a motion to reopen or reconsider the final administrative order. A voluntary departure order reflects an agreement or bargain between the government and the alien, in which the alien represents that he or she is ready and able to depart voluntarily within a short, defined period of time, in exchange for receiving the favorable terms of a grant of voluntary departure. If the alien decides not to uphold his or her end of the bargain and instead chooses to challenge the final order rather than departing within the time allowed, these rules provide that the grant of voluntary departure is terminated and the alternate order of removal becomes effective. Moreover, unlike the current regulatory scheme for grants of voluntary departure prior to the conclusion of proceedings before an immigration judge, in which the alien is required irrevocably to waive the right to appeal as provided in 8 CFR 1240.26(b)(1)(i)(D), these proposed rules are more favorable to the alien because they do not irrevocably bar the alien from challenging the final order after it is entered by the Board. The alien will be free to forgo voluntary departure and instead to elect to challenge the final order through a motion to reopen or reconsider, or a petition for review. Or, put another way, these rules would allow the alien an opportunity to withdraw from the arrangement into which he or she effectively entered under the statute and the amended regulations at the time of seeking and accepting voluntary departure, and instead to pursue further challenges after issuance of the final order. And because the alien's act of filing an administrative motion to reopen or reconsider or a petition for judicial review would have the effect of terminating a period of voluntary departure granted in accordance with these regulations, no voluntary departure period would remain to be tolled or stayed.
This approach advances the legitimate interests of the government in preserving the purposes of the voluntary departure authority; it also enables aliens to avoid the consequences under section 240B(d) of the INA of an earlier decision to accept a grant of voluntary departure, in the event of a change of circumstances that may lead the alien to seek to avoid those consequences, including the alien's decision to challenge the validity of a removal order through a motion to reconsider or judicial review.
This rule responds to one of the principal policy arguments offered in support of tolling. In many cases, the alien had sought relief or protection from removal, which was denied, and the filing of a motion to reopen or reconsider is a means for aliens to continue to contest the merits of the denied claims or to address eligibility for newly discovered relief. Under this rule, aliens who file administrative motions to reopen or reconsider prior to the expiration of the time allowed for voluntary departure would no longer be subject to the penalties for failure to depart, because the grant of voluntary departure will be terminated upon the filing of the motion. However, they will then be subject to a removal order, as is the case for other aliens who had been found to be removable and ineligible for any form of relief or protection from removal.
As noted by the Supreme Court, “[m]otions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence.”
However, the Department recognizes that Congress has provided that aliens may file a motion to reopen or motion to reconsider after a final order of removal has been entered in his or her case. Some of these aliens may have just received an immediate relative visa petition, for example, and wish to file a motion to reopen their case to pursue relief through adjustment of status before any adverse consequences for failing to timely depart attach under 240B(d) of the Act.
Under this rule, if an alien decides to contest a final administrative order by filing a motion to reopen or reconsider after having received a grant of voluntary departure, the grant of voluntary departure will be automatically terminated. Such aliens will no longer have the privilege and responsibility of departing voluntarily and will become subject to a removal order, just like other aliens at the conclusion of the removal proceedings who are not granted any form of relief or protection from removal. This means, however, that they will be able to pursue the administrative motion without the risk of being subject to the statutory penalties for failing to depart voluntarily.
This proposal is intended to allow an opportunity for aliens who have been granted voluntary departure to be able to pursue administrative motions without risking the imposition of the voluntary departure penalties, to promote uniformity, and also to bring the voluntary departure process back to its statutory premises. The proposed rule further recognizes that although an alien may request voluntary departure in good faith before an immigration judge, the alien's circumstances may change while an appeal is pending before the Board, and ensures that the alien is not subsequently penalized when such change in circumstances occurs.
The Department accordingly proposes to amend 8 CFR 1240.26 to provide for the automatic termination of a grant of voluntary departure upon the timely filing of a motion to reopen or reconsider, as long as the motion is filed prior to the expiration of the voluntary departure period. By seeking to challenge the final administrative order through a post-decision motion to reopen or reconsider, the alien will be manifesting that he or she is no longer willing to depart voluntarily within the specific number of days as previously allowed by the immigration judge or the Board. Put another way, the alien is no longer willing to abide by the initial quid pro quo on which voluntary
In the Department's view, extending the period allowed for voluntary departure by the filing of a motion to reopen or reconsider serves to undermine the basic statutory purpose of the voluntary departure agreements, and is not consistent with the Act. See Chedad, 497 F.3d at 64 (“These provisions [relating to limits on voluntary departure] reflect a coherent effort to ensure that voluntary departure does, in fact, result in the alien's expeditious departure from the United States. Reading [the provision allowing for one motion to reopen within 90 days of a final administrative order] as stopping the voluntary departure clock would contravene this purpose, allowing the filing of motions to reopen to delay voluntary departure dates.”). This proposed rule provides that aliens who file a motion to reopen or reconsider within the period allowed for voluntary departure are thereby exempted from the penalties for failure to depart voluntarily under section 240B(d) of the Act. This approach avoids any perceived tension between the statutory provisions relating to motions to reopen or reconsider and the statutory penalties for failure to depart voluntarily. Since the grant of voluntary departure is terminated automatically upon the filing of a motion to reopen or reconsider during the voluntary departure period, there is no period of voluntary departure to toll during the pendency of the motion to reopen or reconsider.
The issues are very different, however, if the alien's motion to reopen or reconsider is not filed until after the period of voluntary departure has elapsed, at a time when—because of the alien's failure to depart voluntarily within the time allowed—the penalties under 8 U.S.C. 1229c(d), including the 10-year bar on certain forms of discretionary relief, have already taken effect. If the alien already has failed to comply with his undertaking voluntarily to depart from the United States by the time his motion is filed, he is now properly barred from relief under that section.
In general, where an alien does not file a motion to reopen until after the expiration of the voluntary departure period, the Board's grant of reopening does not have the effect of relieving the alien from the consequences of having failed to depart before the voluntary departure period expired. See
With respect to motions to reopen filed after the expiration of the voluntary departure period, to conclude that the granting of such a motion would vitiate or vacate the penalties that had already taken effect because of the alien's previous failure to depart voluntarily would effectively undermine the relevance of such penalties in this context. Aliens who are subject to a final order of removal cannot seek relief from removal from an immigration judge or the Board (such as adjustment of status or cancellation of removal) unless they are successful in reopening their final orders. Thus, prior to the granting of a motion to reopen, such aliens are unable to obtain such relief for reasons independent of the voluntary departure penalties. However, if the mere fact of granting a motion to reopen had the effect of vacating the voluntary departure penalties, after those penalties had already taken effect as a result of the alien's failure to depart during the period allowed for the voluntary departure, then the intended effect of those penalties in deterring aliens from overstaying the period of voluntary departure would clearly be diminished. Accordingly, this proposed rule would provide that the granting of a motion to reopen or reconsider that was filed after the penalties under section 240B(d) of the Act had already taken effect does not have the effect of vitiating or vacating those penalties, except as provided in section 240B(d)(2) of the Act.
The Board recently concluded that there is no equitable basis for creating an exception to the statutory penalties for aliens who voluntarily fail to depart during the period allowed for voluntary departure.
The Board also noted that the statutory penalties do not apply if the alien was unaware of the voluntary departure order or was physically unable to depart. See Matter of Zmijewska, 24 I&N Dec. at 94 (finding that the “voluntariness” exception is “limited to situations in which an alien, through no fault of his or her own, is unaware of the voluntary departure order or is physically unable to depart. It would not include situations in which departure within the period granted would involve exceptional hardships to the alien or close family members. Nor would lack of funds for departure be considered an involuntary failure to depart.”). However, the Board's decision raises broader questions with respect to ineffective assistance of counsel that are not addressed in this rule.
Section 242 of the Act (8 U.S.C. 1252) gives aliens the opportunity, with certain exceptions, to seek circuit court review of a final order of removal by filing a petition for review within 30 days of the final administrative order.
In the experience of the Department, aliens who have been granted voluntary departure routinely file petitions for review pursuant to section 242 of the Act and seek a stay, with the result of delaying the voluntary departure obligation for many months or even years, while the petition for review is adjudicated in the courts of appeals. This rule also proposes new measures to avoid such open-ended extensions of the period of time authorized by Congress for aliens to depart voluntarily. Again, as noted above, this proposal reflects an exercise of the Attorney General's authority to implement the voluntary departure provisions, as well as to limit eligibility for voluntary departure for certain classes or categories of aliens, as provided in section 240B(e) of the Act.
Extensive litigation has resulted from the question of whether a court of appeals may stay the running of the voluntary departure period while a petition for review is pending. These decisions have resulted in a non-uniform, patchwork system of motions practice in the courts of appeals concerning the effect of filing a petition for review on the voluntary departure period. No court of appeals has held that the mere filing of a petition for review automatically stays or tolls the running of the voluntary departure period. But several circuits have found that not only do they have authority to stay voluntary departure periods provided by statute, but that an alien need not even make a specific request for such a stay, if they file a motion for a stay of removal. The Sixth, Eighth and Ninth Circuits now follow this course, construing a request for a stay of removal as a request for a stay of the voluntary departure period. See
Other circuit courts have allowed for a stay of the voluntary departure period if it is explicitly requested within the time period. See
The Fourth Circuit has held that it does not have authority to toll the period.
The circuit courts that held they have authority to stay the voluntary departure period have based their decision either on the equitable power of the courts of appeals to issue a stay or on the theory that 28 U.S.C. 2349 contains a statutory grant of authority. See, e.g.,
Over the last four fiscal years, in roughly 40% of the cases in which the alien was granted voluntary departure with an alternate order of removal, the aliens have filed petitions for review with the courts of appeals. Voluntary departure is intended as a benefit to both the alien and the government, operating as an agreement whereby both sides receive benefits.
Where the court has stayed the period for voluntary departure, the alien is not required to depart the United States until the very end of the litigation process, after exhausting all opportunities for administrative or judicial relief. But
Moreover, as a legal matter, petitions for judicial review differ from post-order administrative motions, in that an alien is not precluded from pursuing such a petition after the alien has departed from the United States. See, e.g.,
This rule would respond to one of the principal policy arguments offered in support of a stay during the pendency of judicial review. Under this rule, if an alien decides to contest a final administrative order by filing a petition for review before departing the United States, the grant of voluntary departure will be terminated automatically. Such aliens will no longer have the privilege or responsibility of departing voluntarily and will become subject to a removal order, just like every other alien at the conclusion of the removal proceedings who is not granted any form of relief or protection from removal. This means, however, that they will be able to pursue judicial review without the risk of being subject to the statutory penalties for failing to depart voluntarily.
Again, this proposal is intended to allow an opportunity for aliens who have been granted voluntary departure to be able to pursue judicial review without risking the imposition of the voluntary departure penalties, to promote uniformity, and also to bring the voluntary departure process back to its statutory premises. It further recognizes that although an alien may request voluntary departure in good faith before an immigration judge, the alien's circumstances may change by the time the case is decided by the Board, and ensures that the alien is not subsequently penalized when such change in circumstances occurs.
The Department proposes to amend 8 CFR 1240.26 to provide for the automatic termination of a grant of voluntary departure upon the filing of a petition for review. This rule is intended to result in a uniform application of the effect of the voluntary departure period in all the circuit courts of appeals. Under this rule, since the grant of voluntary departure would be terminated automatically if the alien elects to file a petition for review, there would no longer be any period of voluntary departure to be stayed or tolled during the pendency of the judicial review. This rule is consistent with the congressional intent, as expressed in the 1996 changes to the Act, that aliens may no longer remain in a period of voluntary departure for years, but instead are strictly limited to a discrete period of time for voluntary departure.
The termination of the grant of voluntary departure upon the filing of a petition for review (or an administrative motion to reopen or reconsider) does not have the effect, however, of altering the date on which the Board's decision became administratively final. Existing regulations provide that a decision by the Board dismissing an alien's appeal becomes administratively final upon issuance of the Board's decision, see 8 CFR 1003.1(d)(7), 1241.1, and that is the relevant date for purposes of section 242 of the Act (8 U.S.C. 1252). The termination of voluntary departure on account of the alien's actions means that the alternate order of removal that was entered at the time of the grant of voluntary departure pursuant to 8 CFR 1240.26(d) takes effect automatically. The date of the final order remains the date the Board issued its decision.
We also seek public comment on a related issue relating to inadmissibility under section 212(a)(9)(A) of the Act (8 U.S.C. 1182(a)(9)(A)). In general, an alien who has been ordered removed is inadmissible under that section if the alien seeks admission again within a specified period of five or ten years after the alien's departure or removal. An alien who leaves under a grant of voluntary departure has not been “removed” and so is not subject to these grounds of inadmissibility (though he or she may be subject to other grounds of inadmissibility). As noted above, this rule provides that the filing of a petition for review would terminate the grant of voluntary departure, with the result that any alien who files a petition for review, and does not prevail, thus may be subject to inadmissibility under section 212(a)(9)(A) of the Act. However, we note that the Act also allows an alien to maintain his or her petition for judicial review after departing from the United States, as discussed above. The Department's general experience is that the number of aliens who accept a grant of voluntary departure, file a petition for judicial review, and then actually depart the United States within the time specified for voluntary departure is very small indeed, but we recognize the possibility that at least some aliens might do so. Though we do not make a specific proposal here, we seek public comment on whether or not it might be advisable (and the possible means for accomplishing such a result) to consider adopting a rule that those aliens who do depart the United States during the period of time specified in the grant of voluntary departure, after filing a petition for review, would not be deemed to have departed under an order of removal for purposes of section 212(a)(9)(A) of the Act. Such a provision may provide an incentive for the alien to pursue his or her challenge to the validity of the removal order from abroad.
The provisions of this proposed rule will be applied prospectively only, that is, only with respect to immigration judge orders issued on or after the effective date of the final rule that grant a period of voluntary departure. The existing regulations and precedents will continue to apply to any order granting voluntary departure issued prior to the effective date of the final rule.
Currently, an immigration judge's decision advises the alien of the right to file an appeal with the Board within 30 days of the decision, and this rule makes no change in that respect since aliens accepting a grant of voluntary departure will still be able to appeal to the Board on the merits of the alien's claims of relief or protection from removal.
To ensure that aliens are aware of the consequences of filing a motion to reopen or reconsider prior to the expiration of voluntary departure, the rule amends 8 CFR 1240.11 to provide that the immigration judge will advise the alien of the consequences of accepting a grant of voluntary departure and the effect of any subsequent post-decision motion to reopen or reconsider. In particular, the alien will be advised that an order of voluntary departure shall be automatically terminated upon filing a motion to reopen or reconsider, as long as such a motion is filed before the voluntary departure period has expired.
Currently, aliens are advised in the notice of decision of the consequences of failing to depart under section 240B(d) of the Act (8 U.S.C. 1229c(d)) pursuant to an order of voluntary departure. See 8 CFR 1240.13(d). The additional notice proposed by this rule should help to avoid practical concerns that the alien was not fully aware of the consequences of filing a motion to reopen or reconsider during the voluntary departure period. By providing such notice to the alien at the time of the granting of voluntary
In addition, this rule provides that the Board's decision will provide notice to the alien with respect to the impact of filing a petition for review. Since the immigration judge's order is appealable to the Board, an adverse immigration judge decision is not subject to a direct petition for review to the courts of appeals without a prior Board decision. See INA 242(d)(1) (8 U.S.C. 1252(d)(1)) (requiring exhaustion of all administrative remedies available to the alien as of right). Therefore, there is no reason to require the immigration judge to advise the alien of the consequences of filing a subsequent petition for review. However, once the Board has issued its final decision denying the alien's substantive claims and issuing a final order granting voluntary departure, this rule provides that the Board's final order will advise the alien that if the alien files a petition for review of the order before departing the United States, that will have the effect of terminating the grant of voluntary departure. At that point, the alien would be in the same legal position as other aliens who have been found to be removable and denied relief. The alien will no longer have the benefit and responsibility of voluntary departure, but the alien will be able to challenge the merits of the Board's decision before the court of appeals. If the court stays the execution of removal order, the alien would be able to remain while the petition for review is pending. If the alien does not prevail before the court, then, because the voluntary departure grant was terminated by filing the petition for review, he or she will not be subject to the penalties for failing to depart voluntarily.
When the immigration judge grants voluntary departure at the conclusion of the removal proceedings, section 240B(b)(3) of the Act requires that the alien post a voluntary departure bond, “in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified.” The current regulation at 8 CFR 1240.26(c)(3) provides that the voluntary departure bond shall be no less than $500 and must be posted with the district director within 5 business days of the immigration judge's order.
DHS is responsible for administering the bond process. In view of the transfer of authority to DHS, and the establishment of different adjudicatory and enforcement offices, this rule makes conforming changes to include references to the Immigration and Customs Enforcement (ICE) Field Office Director rather than the former terminology of district director.
Because a voluntary departure bond must be posted promptly after the issuance of the immigration judge's order granting voluntary departure, the Department recognizes that some aliens may post a voluntary departure bond and then later have their grant of voluntary departure automatically terminated under this rule because the alien has subsequently filed a motion to reopen or a petition for review. In all cases, as provided in section 240B(b)(3) of the Act, the purpose of the voluntary departure bond is to “ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified.” Accordingly, this rule includes new provisions addressing the alien's liability for the voluntary departure bond depending on whether or not the alien does depart the United States within the time allowed. The fact that the grant of voluntary departure is subsequently terminated on account of the alien's own actions to challenge the final administrative order does not undo the purpose for the posting of the bond. Under any circumstances, the purpose of the bond is to encourage the alien to depart promptly as promised.
Thus, in any case where the alien can show he or she is physically outside the United States within the time allowed, the alien's voluntary departure bond will not be forfeited, and the bond can be cancelled or cash can be reclaimed by the alien after his or her departure from the United States. Once an alien departs the United States, the alien may follow the rules set forth by DHS for the voluntary departure bond, which may include proof that the alien departed within the time allowed even though the grant of voluntary departure was terminated pursuant to these rules. An alien who posted a bond will not forfeit it upon the filing of a petition for review, if the alien can establish that within 30 days after the filing of the petition for review he or she is physically outside the United States.
However, the proposed rule specifies that the alien's failure to depart during the time allowed will result in forfeiture of the alien's bond posted pursuant to a grant of voluntary departure. The purpose of the bond was to ensure that the alien does depart during the time allowed, as the alien had promised to do at the time of the immigration judge's order granting voluntary departure, and the alien's decision not to depart within that period would preclude the alien from recouping the amount of the bond. This is currently the result if the alien simply remains in the United States in violation of the grant of voluntary departure. This rule would further provide that the same result would continue to apply if the alien files a post-order motion to challenge the final order or a petition for review.
Finally, the rule provides an exception if the alien is ultimately successful in overturning, reopening, or remanding the final administrative order that had denied the alien's claims on the merits relating to the alien's removability or eligibility for relief. Since, as discussed above, a grant of voluntary departure at the conclusion of removal proceedings is only relevant if the alien has already been found to be removable and ineligible for relief, a subsequent decision overturning, reopening, or remanding the denial of the alien's claims on the merits means that the issue of voluntary departure is rendered moot with respect to the voluntary departure bond.
The existing regulations provide that, if the required voluntary departure bond is not posted within 5 business days, the grant of voluntary departure shall vacate automatically and the alternate order of removal will take effect on the following day. 8 CFR 1240.26(c)(3).
Recently, the Board addressed issues relating to the failure to post a voluntary departure bond in
In its precedent decision in
Though it may be a permissible reading of the language of the current regulations, this result is not consistent with the statutory purpose and is not a sound policy approach because the alien's own default in failing to post a voluntary departure bond, as the alien was just ordered to do in connection with the order granting voluntary departure, should not be the trigger that exempts the alien from the penalties for failure to depart. The purpose of the bond requirement, as stated in the statute, is to “ensure that the alien departs within the time specified,” and the bond requirement should not be interpreted to stand this statutory purpose on its head by providing a ready means for aliens to exempt themselves from the penalties for failure to depart. Moreover, using the failure to post a bond as the trigger that vitiates the grant of voluntary departure does not make practical sense because it is not an open, discrete, affirmative step and there is no ready process for highlighting the absence of a bond. In particular, there is no reason to believe that the government counsel or the immigration judge would be made aware at the time in many or most cases that a default had even occurred and that the grant of voluntary departure had been vacated. In many such cases, the Board may be unaware at the time of a final order reinstating the period of voluntary departure that the alien's voluntary departure grant had already been terminated by default even before the alien filed the appeal with the Board. Under the approach of
The Attorney General has decided to amend the language regarding failure to post bond to make clear that the failure to post a voluntary departure bond does not exempt the aliens from the obligation to depart nor does it exempt them from the penalties for failure to depart voluntarily. An alien who is granted voluntary departure remains liable for the amount of the bond if he or she voluntarily fails to depart during the period of time allowed—whether or not the alien files a motion to reopen or reconsider or a petition for judicial review, or simply remains in the United States in violation of the grant of voluntary departure, except as noted above.
It is important, however, to have other provisions in place to ensure that the voluntary departure bond, when required, is posted within the period of 5 business days. Since the purpose of the voluntary departure bond is to ensure that the alien does depart from the United States, as promised, this proposed rule provides that the failure to post the bond, when required, within 5 business days is a violation of the requirement of section 240B(b)(3) of the Act and may be considered (i) in evaluating whether the alien should be detained based on risk of flight, and (ii) as a negative discretionary factor with respect to any discretionary form of relief.
In addition, we seek public comment on whether the rule should also provide additional sanctions for aliens who fail to post the required voluntary departure bond by the fifth business day. One such possibility may be to provide that an alien who posts a required voluntary departure bond after the fifth business day will not be able to get a full refund of the bond amount—e.g., a 20% reduction of the amount to be returned to the alien on account of a late posting of a required voluntary departure bond.
Finally, this proposal also amends 8 CFR 1241.1(f) with respect to an alien who waives appeal at the conclusion of the immigration judge proceedings, but fails to post the required voluntary departure bond within five business days, as he or she had agreed to do in connection with the grant of voluntary departure. The waiver of appeal by both parties means that the immigration judge's order is an administratively final order. If an alien who has waived appeal fails to post the required voluntary departure bond within the time allowed, the alternate order of removal will then take effect after the failure to timely post bond. This proposal ensures that aliens who waive appeal before the immigration judge still have an incentive to post bond as they agreed to do, since the alien's failure to do so would result in a final order after the fifth business day, and it preserves DHS's authority to detain an alien who fails to timely post bond, as he or she is then under a final order of removal. However, if the alien thereafter does depart within the voluntary departure period, the alien will not be subject to the penalties under 240B(d) of the Act (8 U.S.C. 1229a(c)(4)(B)) or inadmissibility under 212(a)(9)(A) of the Act.
As noted above, an alien whose request for voluntary departure is granted by an immigration judge at the conclusion of removal proceedings is required to post a voluntary departure bond within five business days in an amount necessary to ensure that the alien does depart the United States within the time allowed. The bond is posted at a DHS office, so under current practice neither the immigration judge nor the Board is aware of whether an alien has complied with the obligation to post a bond as he or she had promised to do at the time of the grant of voluntary departure.
This proposed rule would require that aliens who have been granted voluntary departure submit proof of having posted the required voluntary departure bond in connection with the filing of an appeal with the Board. Since the alien is obligated to post a bond within five business days of the immigration judge's order, but the appeal to the Board is due within 30 days of the immigration judge's order, the alien will have ample time available to obtain proof of the posting of the bond.
As in other respects, the burden of proof is on an alien to establish eligibility for a discretionary form of relief from removal, see section 240(c)(4)(B) of the Act; 8 CFR 1240.8(d), so it is reasonable to provide that aliens who are granted voluntary departure are expected to provide proof of compliance with one of the key obligations under the grant of voluntary departure. If the alien does not provide timely proof to the Board that the required voluntary departure bond has been posted, the Board will not include a grant of voluntary departure in its final order.
Section 240B(d)(1) of the Act provides that, in addition to being barred from eligibility for certain discretionary forms of relief for a period of 10 years, an alien who fails to depart voluntarily as required “shall be subject to a civil penalty of not less than $1,000 and not more than $5,000.” However, there is no process for the immigration judge to set the specific amount of the penalty, and the DHS regulations also do not provide a means to calculate the specific amount of the penalty. Thus, though the grants of voluntary departure issued by immigration judges and the Board routinely include warnings about the imposition of a civil penalty for failure to depart voluntarily, as a practical matter there appears to have been very little means actually to impose and collect such civil penalties on aliens who overstay their period of voluntary departure.
In order to give effect to the statutory provision providing for a civil penalty, and to simplify the administrative process and provide clear advance notice to the aliens who are seeking voluntary departure, the proposed rule would set a presumptive amount of $3,000 as the civil penalty for failure to depart. This amount—which is identical to provisions in the immigration bills passed by the House and Senate in the 109th Congress (S. 2611 and H.R. 4437)—would be applicable in every case in the future unless the immigration judge specifically set a higher figure at the time of granting voluntary departure.
The collection of the civil penalty is within the enforcement responsibility of DHS, and not the immigration judge or the Board. However, in any case where an alien is later seeking discretionary relief, the immigration judge or the Board may properly take account of evidence that the alien has failed to pay the required civil penalty, as a relevant discretionary factor.
The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects individual aliens and does not affect small entities, as that term is defined in 5 U.S.C. 601(6).
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year and also will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
The Attorney General has determined that this rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and, accordingly, this rule has been submitted to the Office of Management and Budget for review.
This rule will 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.
Administrative practice and procedure, Aliens.
Administrative practice and procedure, Aliens, Immigration.
Accordingly, for the reasons stated in the preamble, chapter V of title 8 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 1240 continues to read as follows:
8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 1229(c)(e), 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100, (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681); 8 CFR part 2.
2. Section 1240.11 is amended by adding a new sentence at the end of paragraph (b) to read as follows:
(b) * * * The immigration judge shall advise the alien of the consequences of filing a post-decision motion to reopen or reconsider prior to the expiration of the time specified by the immigration judge for the alien to depart voluntarily.
3. Section 1240.26 is amended by:
a. Adding new paragraphs (b)(3)(iii) and (b)(3)(iv);
b. Revising paragraph (c)(3);
c. Adding new paragraphs (e)(1) and (e)(2);
d. Adding a new sentence at the end of paragraph (f); and by
e. Adding new paragraphs (i) and (j), to read as follows:
(b) * * *
(3) * * *
(iii) If the alien files a post-decision motion to reopen or reconsider during the period allowed for voluntary departure, the grant of voluntary departure shall be terminated automatically, and the alternate order of removal will take effect immediately. The penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply if the alien has filed a post-decision motion to reopen or reconsider during the period allowed for voluntary departure. The immigration judge shall advise the alien of the provisions of this paragraph (b)(3)(iii).
(iv) The automatic termination of a grant of voluntary departure and the effectiveness of the alternative order of removal shall not affect, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter.
(c) * * *
(3)
(i) The alien shall be required to post a voluntary departure bond, in an amount necessary to ensure that the alien departs within the time specified, but in no case less than $500. The voluntary departure bond shall be posted with the ICE Field Office Director within 5 business days of the immigration judge's order granting voluntary departure, and the ICE Field Office Director may, at his or her discretion, hold the alien in custody until the bond is posted. Because the purpose of the voluntary departure bond is to ensure that the alien does depart from the United States, as promised, the failure to post the bond, when required, within 5 business days may be considered in evaluating whether the alien should be detained based on risk of flight, and also may be considered as a negative discretionary factor with respect to any discretionary form of relief. The alien's failure to post the required voluntary departure bond within the time required does not terminate the alien's obligation to depart within the period allowed or exempt the alien from the consequences for failure to depart voluntarily during the period allowed. However, if the alien had waived appeal of the immigration judge's decision, the alien's failure to post the required voluntary departure bond within the period allowed means that the alternate order of removal takes effect immediately pursuant to 8 CFR 1241.1(f), provided that if the alien does depart the United States during the period allowed for voluntary departure, he or she shall not be subject to the penalties at INA 240B(d)(1) or to inadmissibility under section 212(a)(9)(A) of the Act.
(ii) An alien who has been granted voluntary departure shall, in connection with the filing of an appeal with the Board, submit timely proof of having posted the required voluntary departure bond. If the alien does not provide timely proof to the Board that the required voluntary departure bond has been posted with DHS, the Board will not include a grant of voluntary departure in its final order.
(iii) If the alien files a post-order motion to reopen or reconsider during the period allowed for voluntary departure, the grant of voluntary departure shall terminate automatically and the alternate order of removal will take effect immediately. If the alien files a post-order motion to reopen or reconsider during the period allowed for voluntary departure, the penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply.
(iv) The automatic termination of an order of voluntary departure and the effectiveness of the alternative order of removal shall not impact, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter.
(v) If after posting the voluntary departure bond the alien satisfies the condition of the bond by departing the United States prior to the expiration of the period granted for voluntary departure, and if proof of the alien's departure is timely furnished to the ICE Field Office Director, the bond may be canceled. The bond also may be cancelled if, after filing a petition for review, the alien can establish that within 30 days after such filing he or she is physically outside the United States. In order for the bond to be cancelled, the alien must provide proof of departure by such methods as the ICE Field Office Director may prescribe.
(vi) Because the purpose of the voluntary departure bond is to ensure that the alien departs the United States within the time allowed, the automatic termination of a grant of voluntary departure, on account of a post-order motion to reopen or reconsider or a petition for review filed by the alien, does not result in the cancellation of the voluntary departure bond if the alien fails to depart within the time allowed. However, the voluntary departure bond may be canceled by such methods as the ICE Field Office Director may prescribe if the alien is subsequently successful in overturning, reopening, or remanding the final administrative order.
(e) * * *
(1)
(2)
(f) * * * The filing of a motion to reopen or reconsider or a petition for review has the effect of automatically terminating the grant of voluntary departure, and accordingly does not toll, stay, or extend the period allowed for voluntary departure.
(i)
(j)
4. The authority citation for part 1241 continues to read as follows:
5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, 227, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 4002, 4013(c)(4).
5. Section 1241.1 is amended by revising paragraph (f), to read as follows:
(f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period except as provided in the following sentence, or upon the failure to post a required voluntary departure bond if the respondent has waived appeal. If the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2007-13-17, which applies to all Air Tractor, Inc. (Air Tractor) Models AT-602, AT-802, and AT-802A airplanes. AD 2007-13-17 currently requires you to repetitively inspect the engine mount for any cracks, repair or replace any cracked engine mount, and report any cracks found to the FAA. Since we issued AD 2007-13-17, Air Tractor has learned of a Model AT-502B with a crack located where the lower engine mount tube is welded to the engine mount ring. In addition, Snow Engineering Co. has developed gussets that, when installed according to their service letter, terminate the repetitive inspection requirement. Consequently, this proposed AD would retain the inspection actions of AD 2007-13-17 for Model AT-602, AT-802, and AT-802A airplanes, including the compliance times and effective dates; establish new inspection actions for the AT-400 and AT-500 series airplanes; incorporate a mandatory terminating action for all airplanes; and terminate the reporting requirement of AD 2007-13-17. We are proposing this AD to detect and correct cracks in the engine mount, which could result in failure of the engine mount. Such failure could lead to separation of the engine from the airplane.
We must receive comments on this proposed AD by January 29, 2008.
Use one of the following addresses to comment on this proposed AD:
•
•
•
•
For service information identified in this proposed AD, contact Air Tractor Inc., P.O. Box 485, Olney, Texas 76374; telephone: (940) 564-5616; fax: (940) 564-5612.
Andy McAnaul, Aerospace Engineer, ASW-150, FAA San Antonio MIDO-43, 10100 Reunion Pl, San Antonio, Texas 78216; phone: (210) 308-3365; fax: (210) 308-3370.
We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Two reports of Model AT-802A airplanes with cracked engine mounts (at 2,815 hours time-in-service (TIS) and 1,900 hours TIS) caused us to issue AD 2007-13-17, Amendment 39-15121 (72 FR 36863, July 6, 2007). AD 2007-13-17 currently requires the following on all Air Tractor Models AT-602, AT-802, and AT-802A airplanes:
• Inspect (initially and repetitively) the engine mount for any cracks;
• Repair or replace any cracked engine mount; and
• Report any cracks found to the FAA.
Since we issued AD 2007-13-17, Air Tractor notified the FAA of a Model AT-502B airplane with a crack located where the lower engine mount tube is welded to the engine mount ring. The airplane had 8,436 total hours TIS. The cracking is similar to what prompted us to issue AD 2007-13-17.
The Model AT-502B engine mount is the same design used in the Models AT-400, AT-400A, AT-402, AT-402A, AT-402B, AT-502, and AT-503A airplanes. The Model AT-502A airplane uses the same engine mount design as the airplanes affected by AD 2007-13-17. Therefore, we determined that these airplane models should be subject to the actions of AD 2007-13-17.
Currently, the FAA is aware of the following airplanes that have had cracked engine mounts:
• 1 Model AT-502B;
• 3 Model AT-602; and
• 11 Model AT-802/802A.
This condition, if not corrected, could result in failure of the engine mount. Such failure could lead to separation of the engine from the airplane.
In addition, Snow Engineering Co. developed gussets for an FAA-approved repair scheme to AD 2007-13-17. Snow Engineering Co. tested the engine mount with the gussets installed; and based on their test data, which has been approved by the FAA, installation of the gussets terminates the repetitive inspection requirement.
We have reviewed Snow Engineering Co. Service Letter #253 Rev. A, dated October 16, 2007.
The service information describes procedures for:
• Performing a visual inspection of the engine mount for cracks;
• Repairing the engine mount if cracks are found; and
• Adding gussets to reinforce the engine mount and terminate the inspection requirement.
We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would supersede AD 2007-13-17 with a new AD that would retain the inspection actions of AD 2007-13-17 for Models AT-602, AT-802, and AT-802A airplanes, including the compliance times and effective dates; establish new inspection actions for the AT-400 and AT-500 series airplanes; incorporate a mandatory terminating action for all airplanes; and terminate the reporting requirement of AD 2007-13-17. This proposed AD would require you to use the service information described previously to perform these actions.
We estimate that this proposed AD would affect 1,264 airplanes in the U.S. registry, including those airplanes affected by AD 2007-13-17.
We estimate the following costs to do the proposed inspection:
We estimate the following costs to do the repair/modification:
The estimated total cost on U.S. operators includes the cumulative costs associated with AD 2007-13-17 and those airplanes and actions being added in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the 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.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2007-13-17, Amendment 39-15121 (72 FR 36863, July 6, 2007), and adding the following new AD:
(a) We must receive comments on this airworthiness directive (AD) action by January 29, 2008.
(b) This AD supersedes AD 2007-13-17, Amendment 39-15121.
(c) This AD applies to the following airplane models and serial numbers that are certificated in any category:
(d) This AD results from a report of a Model AT-502B airplane with a crack located where the lower engine mount tube is welded to the engine mount ring. The airplane had 8,436 total hours time-in-service (TIS). We are issuing this AD to detect and correct cracks in the engine mount, which could result in failure of the engine mount. Such failure could lead to separation of the engine from the airplane.
(e) To address this problem, you must do the following, unless already done:
(1)
(2)
(3)
As a terminating action to the repetitive inspections required in paragraphs (e)(1)(i), (e)(1)(ii), and (e)(1)(iii) of this AD, you may install the gussets before finding cracks or reaching 5,000 hours total TIS.
(f) The Manager, Forth Worth Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Andy McAnaul, Aerospace Engineer, ASW-150, FAA San Antonio MIDO-43, 10100 Reunion Pl, San Antonio, Texas 78216; phone: (210) 308-3365; fax: (210) 308-3370. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(g) To get copies of the service information referenced in this AD, contact Air Tractor Inc., P.O. Box 485, Olney, Texas 76374; telephone: (940) 564-5616; fax: (940) 564-5612. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at
Federal Emergency Management Agency, DHS.
Proposed rule; correction.
This document corrects the table to a proposed rule published in the
Comments to be submitted on or before January 31, 2008.
William R. Blanton, Jr., Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.
The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1-percent-annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
In proposed rule FR Doc. E7-21595, beginning on page 62182 in the issue of November 2, 2007, make the following corrections, in the table published under the authority of 44 CFR 67.4. On page 62182, in § 67.4, in the table with center heading Tulsa County, Oklahoma, and Incorporated Areas, the flooding source(s), location of referenced elevation, the effective and modified elevation in feet and the communities affected for flooding source “Horsepen Creek Tributary B”, needs to be corrected to read as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of a fishery management plan amendment; request for comments.
NMFS announces that the New England Fishery Management Council (Council) has submitted Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan (FMP) (Amendment 11), incorporating the Final Supplemental Environmental Impact Statement (FSEIS) and the Initial Regulatory Flexibility Analysis (IRFA), for review by the Secretary of Commerce. NMFS is requesting comments from the public on Amendment 11. Amendment 11 was developed by the Council to control the capacity of the open access general category fleet. Amendment 11 would establish a new management program for the general category fishery, including a limited access program with individual fishing quotas (IFQs) for qualified general category vessels, a specific allocation for general category fisheries, and other measures to improve management of the general category scallop fishery.
Comments must be received on or before January 29, 2008.
An FSEIS was prepared for Amendment 11 that describes the proposed action and its alternatives and provides a thorough analysis of the impacts of proposed measures and their alternatives. Copies of Amendment 11, including the FSEIS and the IRFA, are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. These documents are also available online at
You may submit comments, identified by 0648-AU32, by any one of the following methods:
•
• Fax: (978) 281-9135, Attn: Peter Christopher.
• Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Scallop Amendment 11.”
Instructions: All comments received are a part of the public record and will generally be posted to
Peter Christopher, Fishery Policy Analyst, phone 978-281-9288, fax 978-281-9135.
The general category scallop fishery is currently an open access fishery that allows any vessel to fish for up to 400 lb (181.44 kg) of scallops, provided the vessel has been issued a general category or limited access scallop permit. This open access fishery was established in 1994 by Amendment 4 to the FMP to allow vessels fishing in non-scallop fisheries to catch scallops as incidental catch, and to allow a small-scale scallop fishery to continue outside of the limited access and effort control programs aimed at the large-scale scallop fishery. Over time, the overall participation in the general category fishery has increased. In 1994, there were 1,992 general category permits issued. By 2005 that number had increased to 2,950. In 1994, there were 181 general category vessels that landed scallops, while in 2005 there were over 600.
Out of concern about the level of fishing effort and harvest from the general category scallop fleet, the Council recommended that a
Amendment 11 includes the following: A limited access program for the general category fishery establishing three new limited access general category (LAGC) scallop permits (IFQ scallop permit, Northern Gulf of Maine (NGOM) scallop permit, and Incidental scallop permit); initial application procedures for an LAGC scallop permit; LAGC scallop permit provisions (initial eligibility, landings history, confirmation of permit history (CPH), permit transfers, permit splitting, qualification restriction, appeal of LAGC scallop permit denial, vessel replacements, ownership cap, voluntary relinquishment of eligibility, and permit renewals and CPH issuance); provisions for limited access scallop vessels fishing under general category rules; allocation of the total annual projected scallop catch to the general category fishery under the IFQ program; IFQs for IFQ scallop vessels; measures for the transition period to IFQ; a mechanism to allow voluntary sectors in the general category fishery; separate management measures for a NGOM scallop management area; monitoring provisions, including a requirement for all LAGC scallop vessels to operate vessel monitoring systems (VMS) with catch reporting requirements; a change issuance date of general category permit; a measure to clarify the maximum trawl sweep size restriction under the scallop regulations; and an allowance for LAGC scallop vessels to possess up to 100 bu (35.24 hL) of in-shell scallops seaward of the VMS demarcation line.
Amendment 11 would establish the percentage of scallop catch allocated to the general category fleet and would
Public comments are being solicited on Amendment 11 and its incorporated documents through the end of the comment period stated in this notice of availability. A proposed rule that would implement Amendment 11 will be published in the
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule.
NMFS proposes to repeal regulations providing for a groundfish vessel incentive program (VIP) that was designed to reduce the rate at which Pacific halibut and red king crab are taken as incidental catch in Alaska groundfish trawl fisheries. The VIP has not performed as intended because of the cost associated with enforcement, the relatively small number of vessels impacted by the regulation, and the implementation of more effective bycatch reduction programs. This action is necessary to reduce a regulatory burden on the industry and to reduce the administrative costs necessary to support a program no longer considered an effective means to reduce bycatch rates.
Written comments must be received by December 31, 2007.
You may submit comments, identified by 0648-AV96, by any one of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal
• Mail: Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802; Attn: Ellen Sebastian, Records Officer;
• Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK; or
• Fax: 907-586-7557, Attention: Sue Salveson.
Instructions: All comments received are a part of the public record and will generally be posted to
Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for this action may be obtained from the addresses stated above or from the Alaska Region NMFS website at
Ben Muse, 907-586-7228, or
NMFS manages the U.S. groundfish fisheries of the exclusive economic zone off Alaska under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The North Pacific Fishery Management Council (Council) prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.
Fisheries off Alaska targeting groundfish incidentally catch other species as well. Some of these non-groundfish species are themselves the objects of valuable targeted fisheries and retention of these species is prohibited in the groundfish fishery. These prohibited species include Pacific halibut, Chinook and “Other” salmon, several crab species, and herring. Measures to restrict the catch of these species have been incorporated into the FMPs for the GOA and the BSAI and into regulation. Among these measures are prohibited species catch (PSC) limits. PSC limits restrict the amount of a prohibited species that may be taken incidentally in a groundfish fishery. Groundfish fisheries are routinely closed in all or part of a management area when a PSC limit is reached. These closures are expensive for industry because they mean that valuable groundfish are left unharvested.
Section 3.6.4 of the GOA FMP authorizes regulations to reduce halibut bycatch rates in fisheries subject to halibut PSC limits to increase the opportunity to fish groundfish TACs before established PSC limits are reached. Specifically, this provision is intended to encourage individual vessels to maintain average bycatch
Section 3.6.4 of the BSAI FMP allows for implementation of regulatory measures to provide incentives to individual vessels to reduce bycatch rates of prohibited species for which PSC limits are established. While the GOA provisions are limited to halibut, the BSAI provisions authorize the creation of, and have been used to create, incentive programs for red king crab, as well as halibut. This provision has the same purpose as the corresponding provision in the GOA FMP, which is to increase the opportunity to harvest groundfish TACs.
Regulations at 50 CFR 679.21(f) implement a vessel incentive program (VIP) under the authority of the FMPs. The program creates incentives for individual groundfish trawl operators to reduce their incidental catch rates of halibut and red king crab by imposing penalties on operations whose incidental catch rates exceed specified standards. Under the program, the Alaska Regional Administrator is required to publish fishery-specific bycatch rate standards for halibut in the GOA and BSAI, and red king crab in the BSAI two times a year. Observer data on the catch composition of harvests in subject fisheries is statistically analyzed. Vessels that appear to have exceeded the published bycatch rate standards are subject to prosecution. The program became effective in mid-1991.
Currently, vessels are subject to the VIP requirement if the groundfish catch of the vessel is observed on board the vessel, or on board a mothership that receives unsorted codends from the vessel, at any time during a weekly reporting period and the vessel is assigned to one of six trawl fisheries. As a practical matter, only groundfish trawl vessels carrying observers are subject to the VIP.
The trawl fisheries defined in the regulations that are subject to the VIP requirement include two GOA fisheries (GOA midwater pollock and GOA other trawl) and four BSAI fisheries (BSAI midwater pollock, BSAI yellowfin sole, BSAI bottom pollock, and BSAI other trawl). A vessel is assigned a fishery group based on the species composition in observed samples of its groundfish catch.
Regulations specify that a vessel's PSC rate during any fishing month may not exceed the bycatch rate standard specified by NMFS. Regulations require that bycatch rate standards for each fishery be published twice a year in the
Calculation of VIP bycatch rate standards and monitoring of PSC and target catch is dependent on data collected at-sea by observers. Observers sample hauls and gather information on the date and target species harvested, area of catch, total round weight of groundfish catch, total round weight of halibut PSC, and number of red king crab PSC. The Alaska Fisheries Science Center has developed observer sampling protocols, and algorithms for statistical analysis of bycatch information. The information is used to make statistical inferences about PSC rates for a vessel in a given month for a specific target species.
The VIP regulations require publication of the bycatch rate standards in the
Regulations governing the determination of halibut and red king crab bycatch rates for individual vessels are at 50 CFR 679.21(f)(7) and (f)(8). Observers sample hauls and collect information about the Federal reporting area of harvest, round weight of groundfish, round weight of halibut, and number of red king crab. For VIP PSC rate calculation, observers randomly predetermine the hauls to sample, and randomly sample a minimum of 100 kg of fish from throughout the haul. Observers report to NMFS at least weekly with the information from sampled hauls, and allow the vessel operator to examine the data.
At the end of a month in which an observer has sampled at least 50 percent of the vessel's total hauls (retrieved while an observer was onboard), the Regional Administrator calculates the vessel's PSC rate for halibut and red king crab based on observer data for each of the fisheries to which the vessel was assigned based on the vessel's catch composition during the month. The PSC rates reflect the weight of groundfish and halibut and the number of red king crab that were actually sampled. No extrapolations are made to the weight and numbers in sampled hauls, or the weight and numbers harvested in observed and unobserved hauls during the month.
Enforcement actions may be taken if a vessel's bycatch rate for a fishing month exceeds the bycatch rate standard established for that fishery.
The VIP imposes potential costs on fishermen with high observed prohibited species bycatch rates. This has created an incentive for fishermen to reduce these observed rates. They can do this by changing the patterns of their fishing behavior. They can also do this by manipulating the observer reported rates. For example, fishing operations may arrange to pre-sort their catches, to eliminate some or all of the prohibited species before these reach the observer station. These are illegal actions, and their incidence is unknown. However, it is known that the VIP increases the incentives for these actions. Anecdotal evidence from knowledgeable persons in the Observer Program and NOAA Enforcement suggests that the incidence of these activities may be serious. Pre-sorting may affect the accuracy of observer reports of halibut and red king crab bycatch and bycatch rates.
Effective enforcement of the VIP imposes significant costs on the observer program and NMFS. Resources for the management of the program and enforcement of the rule have to be taken from other high priority management and enforcement responsibilities. It also is not clear from experience with the program that it has had, or will have, a significant deterrent effect or has led to the harvest of significant additional amounts of target groundfish. Part of the problem may be the limited coverage of the program. As a practical matter, sufficient observations of hauls usually only occur on vessels with 100 percent observer coverage. This has a tendency to limit the program to trawl vessels equal to or greater than 125 feet length overall (LOA); these are the trawlers that are required to carry that level of coverage.
The authorizing provisions in both FMPs make clear that the purpose of a VIP is to enable industry to harvest larger proportions of groundfish TACs.
Furthermore, the establishment of fishery cooperatives and the stringent catch monitoring provisions implemented by NMFS to monitor cooperative-specific allocations of groundfish and prohibited species, including halibut and red king crab, are other means to reduce bycatch. Cooperative members receive a joint allocation of PSC, and this creates incentives and capabilities for cooperatives to control individual operation PSC bycatch rates to maximize the value of the cooperative's PSC allocation.
In June 2003 the Council initiated an amendment to repeal the VIP given concerns about its effectiveness, concerns over its potential to absorb resources that could be utilized by other, important management and enforcement functions, concerns about the incentive created for pre-sorting of bycatch, and developments in other bycatch reduction programs that have occurred since 1991. In October 2003, the Council reviewed a NMFS discussion paper and made a preliminary identification of alternatives for analysis. The Council requested that a discussion of alternatives for analysis be placed on the agenda in December 2003 for additional public testimony. In December 2003 the Council reiterated its approval of the alternatives it had adopted in October and scheduled initial review of the draft for its April 2004 meeting.
In October 2006 the Council initially reviewed the EA/RIR/IRFA and (a) identified repeal of the VIP regulations, without modification of authorizing language in the FMPs, as its preferred alternative; (b) approved release of the EA/RIR/IRFA for public review; and (c) scheduled final action for its December 2006 meeting in Anchorage, Alaska. In December 2006 the Council took final action, adopting the preferred alternative it had identified in October 2006.
This action would repeal 50 CFR 679.21(f), which imposes the requirement for compliance with the VIP and describes procedures for assignment of vessels to fisheries, notification of bycatch rate standards, analysis of the factors on which bycatch rate standards are to be based, public comment, publication of notification in the
This action also would repeal 50 CFR 679.7(a)(5) which specifically prohibits vessels from exceeding a bycatch rate standard specified under 50 CFR 679.21(f).
This proposed rule would not modify the BSAI and GOA FMPs, which contain language permitting the Council to adopt a VIP. Therefore, the Council would retain the authority to develop a new VIP if it chooses.
Regulations at 50 CFR 679.50(k) authorize NMFS Alaska Region to publish individual vessel bycatch rates for specified prohibited species. Nothing in this proposed action would affect this authority, and the Alaska Region will continue to publish these bycatch rates on its website.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared an IRFA as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A copy of the IRFA is available from NMFS (see
In 2005 a total of 78 catcher vessels and 3 catcher/processor vessels reported gross annual receipts of $4.0 million or less from fishing groundfish and other species using trawl gear in the GOA, and can therefore be characterized as small entities under the SBA size standards. Between 2002 and 2005, the total number of trawl vessels generating $4.0 million or less in revenue has ranged from a low of 81 in 2004 and 2005, to a high of 112 in 2002. Average gross revenue (from all fishing sources in Alaska) generated by these vessels was approximately $840,000 in 2005, which was an increase from $730,000 in 2004 and $590,000 in 2002. Thus, the proposed alternatives may directly regulate between 81 and 112 small entities in the GOA. There has been a general decline in the number of vessels that qualify as a small entity in the GOA, so the most recent (2005) estimate of 81 vessels was used for the analysis. This estimate is almost certainly an overestimate of the number of small entities actually directly regulated by this action since it does not take account of affiliations among the entities. Data necessary to fully assess such linkages are not currently available.
The BSAI management area has a larger number of trawl vessels considered small entities than the GOA. In 2005, 99 catcher vessels and 2 catcher/processor vessels reported gross annual receipts of $4.0 million or less, from all their fishery production off Alaska. Between 2002 and 2005, the total number of vessels categorized as small entities in these BSAI fisheries has ranged from a low of 101 in 2005 to a high of 123 in 2002. Between 2002 and 2003, the average gross revenue (from all Alaskan fishing sources) generated by these vessels has ranged from a low of $1.20 million in 2003 to a high of $1.60 million in 2005. Thus, the proposed alternatives may directly regulate, on average, 113 trawl vessels that are considered small entities. This estimate is almost certainly an overestimate of the number of small entities actually directly regulated by this action, since it does not take account of affiliations among the entities. As is the case for the GOA, data necessary to fully assess such linkages are not currently available.
Two alternatives to the proposed action were examined. Alternative 1 was the “No Action” alternative. Under this alternative the VIP would have remained in place. This alternative would have involved a renewed commitment to investigating violations, and prosecuting violators. As noted earlier, the Council and NMFS have had concerns about the effectiveness of this program and its potential to mislead estimates of PSC incidental catches. Moreover, cooperatives offer new methods to control PSC bycatch rates. Alternative 2 would retain the program, but would reduce the frequency with which PSC rates are published. This alternative would reduce the administrative costs of Alternative 1, but would retain its most serious consequences. Alternative 3, which would repeal the VIP provisions of regulation, was chosen as the proposed
This regulation would not impose new recordkeeping and reporting requirements on the regulated small entities.
The analysis did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action.
Alaska, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:
1. The authority citation for 50 CFR part 679 is revised to read as follows:
16 U.S.C. 773
2. In § 679.7, remove and reserve paragraph (a)(5).
3. In § 679.21, remove and reserve paragraph (f).
Animal and Plant Health Inspection Service, USDA.
Notice of solicitation for membership.
We are giving notice that we have reestablished the Secretary's National Wildlife Services Advisory Committee for a 2-year period. The Secretary is soliciting nominations for membership on this Committee.
Consideration will be given to nominations received on or before January 14, 2008.
Nominations should be addressed to the person listed under
Ms. Joanne Garrett, Director, Operational Support Staff, WS, APHIS, 4700 River Road, Unit 87, Riverdale, MD 20737-1234; (301) 734-5149.
The National Wildlife Services Advisory Committee (the Committee) advises the Secretary of Agriculture on policies, program issues, and research needed to conduct the Wildlife Services program. The Committee also serves as a public forum enabling those affected by the Wildlife Services program to have a voice in the program's policies. The Committee Chairperson and Vice Chairperson shall be elected by the Committee from among its members.
We are soliciting nominations from interested organizations and individuals. An organization may nominate individuals from within or outside of its membership. The Secretary will select members to obtain the broadest possible representation on the Committee, in accordance with the Federal Advisory Committee Act (5 U.S.C. App. II) and U.S. Department of Agriculture (USDA) Regulation 1041-1. Equal opportunity practices, in line with the USDA policies, will be followed in all appointments to the committee. To ensure that the recommendations of the Committee have taken into account the needs of the diverse groups served by the Department, membership should include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.
Rio Grande National Forest, USDA Forest Service.
Notice of New Fee Sites.
The Rio Grande National Forest is planning to charge a $50/night fee for the new overnight rentals of Stone Cellar Guard Station, Saguache Bunk House, Alder Creek Guard Station and Fitton Cabin; as well as a $75/night fee for Upper Crossing Guard Station, River Springs Guard Station and 2 cabins at Platoro Reservoir. These cabins have not been available for recreation use prior to this date. Rentals of other cabins on the Rio Grande National Forest have shown that people appreciate and enjoy the availability of historic rental cabins. The Rio Grande National Forest is also proposing that the fees for existing rental cabins be raised from $35/night to $50/night for Brewery Creek Guard Station, Carnero Guard Station, and Elwood Guard Station. Funds from the rental cabins will be used for the continued operation and maintenance of the cabins.
These cabins will become available for recreation rental after June 1, 2008 and contingent upon completion of certain improvements.
Forest Supervisor, Rio Grande National Forest, 1803 West Highway 160, Monte Vista, CO 81144.
John Murphy, Recreation Program Coordinator, 719-852-6221.
The Federal Lands Recreation Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six month advance notice in the
These new fees will be reviewed by a Recreation Resource Advisory Committee prior to a final decision and implementation.
The Rio Grande National Forest currently has three cabin rentals. These rentals are often fully booked throughout their rental season. A business analysis of these rental cabins have shown that people desire having this sort of recreation experience on the Rio Grande National Forest. A market analysis indicates that the $50/per night fee and $75/night fee are both reasonable and acceptable for this sort of unique recreation experience.
People wanting to rent these cabins will need to do so through the National Recreation Reservation Service, at
Natural Resources Conservation Service (NRCS), USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44
Comments on this notice must be received 60 days after publication in the
Questions and comments should be directed at Leah B. Ricke, Soil Conservationist, USDA, NRCS, Post Office Box 2890, Room 5238-South, Washington, DC 20250; telephone: (202) 720-6168; e-mail:
This request for revision reflects the Secretary of Agriculture's authority to continue with the conservation programs at authorized funding levels. Selected long-term contracting forms have been revised to facilitate their use in several different programs. Form CCC-1200 has been changed by splitting it into a new Form NRCS-CPA-1200 (Application) and a new Form NRCS-CPA-1202 (Contract). Forms utilized within business software applications have been modified to a consistent “NRCS-CPA-XXXX” identification format.
The information collected through this package is used by NRCS to ensure the proper use of program funds, including applications for participation, easement acquisition, contract implementation, conservation planning, and application for payment. NRCS will ask for a 3-year OMB approval, with revision, within 60 days of submitting the request.
All responses to this notice will be summarized and included in the request for OMB approval.
All comments will become a matter of public record.
Proposed addition to and deletions from the Procurement List.
The Committee is proposing to add to the Procurement List a service to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and to delete products and services previously furnished by such agencies.
Comments must be Received on or Before: December 30, 2007.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259.
Kimberly M. Zeich, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice for each service will be required to procure the service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the service to the Government.
2. If approved, the action will result in authorizing small entities to furnish the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the
The following service is proposed for addition to the Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for deletion from the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products and services are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds to the Procurement List products to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
December 30, 2007.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259
Kimberly M. Zeich, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On September 28 and October 5, 2007, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (72 FR 55173; 56983) of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the products listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the Government.
2. The action will result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products proposed for addition to the Procurement List.
Accordingly, the following products are added to the Procurement List:
This action does not affect current contracts awarded prior to the effective date of this addition or options that may be exercised under those contracts.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Publication of the quarterly update of the A-list and movement of products between the A-list, B-list and C-list as of January 1, 2008.
The Committee for Purchase From People Who Are Blind or Severely Disabled, in accordance with the procedures published on December 1, 2006 (71 FR 69535-69538), has updated the scope of the Program's procurement preference requirements for the products listed below between and among the Committee's A-list, B-list and C-list. A-list products are suitable for the Total Government Requirement as aggregated by the General Services Administration, the B-list are those products suitable for the Broad Government Requirement as aggregated by the General Services Administration, and C-list products are suitable for the requirements of one or more specified agency(ies). The lists below track changes to A-, B-, C-designations that occurred between August 27, 2007 and November 26, 2007. If not currently available, the A-List products listed below will be available for purchase through the GSA Global Supply system and JWOD-authorized commercial distributors on or about January 1, 2008.
The effective date for the quarterly update of the A-list and movement of products between and among the A-list, B-list and C-list is January 1, 2008.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259
Emily A. Covey,
The complete A-list is available at
Bureau of the Census, Commerce.
Notice of determination.
The Bureau of the Census (Census Bureau) is conducting the 2007 Annual Surveys in the Manufacturing Area. The 2007 Annual Surveys consist of the Current Industrial Reports surveys and the Survey of Industrial Research and Development. We have determined that annual data collected from these surveys are needed to aid the efficient performance of essential governmental functions and have significant application to the needs of the public and industry. The data derived from these surveys, most of which have been conducted for many years, are not publicly available from non-governmental or other governmental sources. As in prior years, these surveys will operate as separate collections of national statistical data on manufacturing. Because 2007 is an economic census year, the 2007 Annual Survey of Manufactures is being conducted as part of the economic census and is not covered in this notice of determination. The following two annual surveys in the manufacturing area will not be conducted in 2007: Survey of Plant Capacity Utilization, and the Survey of Pollution Abatement Costs and Expenditures.
The Census Bureau will furnish report forms to organizations included in each survey. Additional copies of the surveys are available upon written request to the Director, U.S. Census Bureau, Washington, DC 20233-0101.
Thomas E. Zabelsky, Chief, Manufacturing and Construction Division, on (301) 763-4598.
The Census Bureau is authorized to conduct mandatory surveys necessary to furnish current data on the subjects covered by the major censuses authorized by Title 13, United States Code, sections 61, 81, 131, 182, 193, 224, and 225. The data collected in the annual surveys in the manufacturing area will be similar to those collected in the past and within the general scope and nature of those inquiries covered in the economic census year; all the data collected in these surveys are mandatory under the authority of the sections of Title 13, U.S.C., mentioned above. In the interim years, most of these surveys are conducted under a mandatory basis as well.
As in prior years, these surveys will operate as separate collections of national statistical data on manufacturing. Because 2007 is an economic census year, the 2007 Annual Survey of Manufactures is being conducted as part of the economic census and is not covered in this notice of determination. Two annual surveys in the manufacturing area will not be conducted in 2007. First, because the assessment of plant capacity utilization will be made on a quarterly basis for 2007, the Annual Survey of Plant Capacity Utilization will not be conducted this year. Second, the Annual Survey of Pollution Abatement Costs and Expenditures will not be conducted this year because the partnering agency for this survey has determined not to collect these data for 2007.
Most of the following commodity or product surveys provide data on shipments or production, stocks, unfilled orders, orders booked, consumption, and so forth. Reports will be required of all, or a sample of, establishments engaged in the production of the items covered by the following list of surveys:
The following list of surveys represent annual counterparts of monthly and quarterly surveys and will cover only those establishments that are not canvassed, or do not report, in the more frequent surveys. Accordingly, there will be no duplication in reporting. The content of these annual reports (listed below) will be identical with that of the monthly and quarterly reports:
The Survey of Industrial Research and Development measures spending on research and development activities in private U.S. businesses. The Census Bureau collects and compiles this information in accordance with a joint project agreement between the National Science Foundation (NSF) and the Census Bureau. The NSF publishes the results in its publication series. All data items are collected on a mandatory basis under the authority of the sections of Title 13,U.S.C., mentioned above.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a current, valid Office of Management and Budget (OMB) control number. In accordance with the PRA, 44 U.S.C., Chapter 35, the OMB approved the 2007 Annual Surveys under the following OMB control numbers: Current Industrial Reports—0607-0392, 0607-0395, and 0607-0476; and Survey of Industrial Research and Development—0607-0912.
Based upon the foregoing, I have directed that the Annual Surveys in the Manufacturing Area be conducted for the purpose of collecting these data.
Bureau of the Census, Commerce.
Notice of Determination.
In accordance with Title 13, United States Code (U.S.C.), sections 182, 224, and 225, the Bureau of the Census (Census Bureau) has determined that limited financial data (revenue, expenses, and the like) for selected service industries are needed to provide a sound statistical basis for the formation of policy by various governmental agencies. These data also apply to a variety of public and business needs. To obtain the desired data, the Census Bureau announces the administration of the 2007 Service Annual Survey (SAS).
The Census Bureau will furnish report forms to respondents included in the survey, and additional copies are available upon written request to the Director, Census Bureau, Washington, DC 20233-0101.
Ron Farrar, Chief, Health Care and Consumer Services Branch, Service Sector Statistics Division, at (301) 763-6782.
The Census Bureau conducts surveys necessary to furnish current data on subjects covered by the major censuses authorized by Title 13, U.S.C. The SAS provides continuing and timely national statistical data each year. Data collected in this survey are within the general scope, type, and character of those inquiries covered in the Economic Census. For 2007, the economic census year, the SAS will, as it has in the past, operate as a separate sample of selected service industries.
The Census Bureau needs reports only from a limited sample of service sector firms in the United States. The SAS now covers all or some of the following nine sectors: Transportation and Warehousing; Information; Finance and Insurance; Real Estate and Rental and Leasing; Professional, Scientific, and Technical Services; Administrative and Support and Waste Management and Remediation Services; Health Care and Social Assistance; Arts, Entertainment, and Recreation; and Other Services. The probability of a firm's selection is based on its revenue size (estimated from payroll); that is, firms with a larger payroll will have a greater probability of being selected than those with smaller ones. We are mailing report forms to the firms covered by this survey and require their submission within 30 days after receipt. These data are not publicly available from non-government or other government sources. Based upon the foregoing, the Census Bureau is conducting the 2007 SAS for the purpose of collecting these data.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a current valid Office of Management and Budget (OMB) control number. In accordance with the PRA, Title 44 U.S.C., Chapter 35, the OMB approved the SAS under OMB Control Number 0607-0422.
Import Administration, International Trade Administration, Department of Commerce.
November 30, 2007.
Cindy Lai Robinson, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone: (202) 482-3797.
On April 27, 2007, the Department published a notice of initiation of antidumping duty administrative review of glycine from the People's Republic of China (“China”), covering the period March 1, 2006, through February 28, 2007.
Given that it is not practicable to complete the review within the statutory time period, and in accordance with section 751(a)(3)(A) of the Act, we are extending the time period for issuing the preliminary results of review by 120 days. Since a 120-day extension would result in the deadline for the preliminary results falling on March 30, 2008, which is Sunday, the new deadline for the final results will be the next business day, March 31, 2008.
This notice is published pursuant to section 751(a)(3)(A) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
November 30, 2007.
Hilary E. Sadler, Esq., AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-4340.
The Department of Commerce(“Department”) published an antidumping duty order on hand trucks and certain parts thereof (“hand trucks”) from the People's Republic of China (“PRC”) on December 2, 2004.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), requires the Department to issue the preliminary results within 245 days after the last day of the anniversary month of an order for which a review is requested and the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the 245-day time period to a maximum of 365 days. Although we previously extended the 245-day period by 90 days for completion of the review, we have determined that completion of the preliminary results of this review within the extended 335-day period is not practicable because the Department needs additional time to analyze information pertaining to the respondents' sales practices, factors of production, and corporate relationships, to evaluate certain issues raised by the petitioners, and to issue and review responses to supplemental questionnaires.
Because it is not practicable to complete this review within the extended 335-day time period, we are fully extending the time period for issuing the preliminary results of review by an additional 30 days until December 31, 2007, in accordance with section 751(a)(3)(A) of the Act. The final results continue to be due 120 days after the publication of the preliminary results. This notice is published pursuant to section 751(a)(3)(A) of the Act and 19 C.F.R. 351.213(h)(2).
Import Administration, International Trade Administration, Department of Commerce.
On July 3, 2007, the Department of Commerce (“the Department”) published the preliminary results of its new shipper review of the antidumping duty order on honey from the People's Republic of China (“PRC”) for the period December 1, 2005, through June 30, 2006.
November 30, 2007.
Erin Begnal or Michael Quigley, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1442 or (202) 482-4047, respectively.
On July 3, 2007, the Department of Commerce (“Department”) published the preliminary results of the new shipper review of the antidumping duty order on honey from the People's Republic of China for the period December 1, 2005, through June 30, 2006.
The products covered by this order are natural honey, artificial honey containing more than 50 percent natural honey by weight, preparations of natural honey containing more than 50 percent natural honey by weight, and flavored honey. The subject merchandise includes all grades and colors of honey whether in liquid, creamed, comb, cut comb, or chunk form, and whether packaged for retail or in bulk form.
The merchandise subject to this order is currently classifiable under subheadings 0409.00.00, 1702.90.90, and 2106.90.99 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise under order is dispositive.
In the case and rebuttal briefs received from the parties after the
In our preliminary results, we found that Shanghai Bloom had met the criteria for the application of a separate antidumping duty rate.
Based on the comments received from the interested parties, we have made no changes to the preliminary results. For the final results, we have adopted our positions in the preliminary results. We continue to find that the application of total adverse facts available is warranted for Shanghai Bloom pursuant to sections 776(a)(2)(A), (C), and (D) and 776(b) of the Tariff Act of 1930, as amended (“the Act”). For a discussion, see the
We determine that the following margin exists during the period December 1, 2005, through June 30, 2006:
The Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this new shipper review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for subject merchandise exported by Shanghai Bloom, the cash-deposit rate will be equal to 221.02 percent; (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These reviews and notice are in accordance with sections 751(a)(1), 751(a)(2) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce preliminarily determines that countervailable subsidies are being provided to producers and exporters of light-walled rectangular pipe and tube from the People's Republic of China. For information on the estimated subsidy rates, see the “Suspension of Liquidation” section of this notice.
November 30, 2007.
Damian Felton or Shane Subler, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0133 and (202) 482-0189, respectively.
The following events have occurred since the publication of the Department of Commerce's (the Department) notice of initiation in the
On August 7, 2007, the Department selected the two largest Chinese producers/exporters of light-walled rectangular pipe and tube (LWRP), Qingdao Xiangxing Steel Pipe Co., Ltd. (Qingdao) and Zhangjiagang Zhongyuan Pipe-Making Co., Ltd. (ZZPC), as mandatory respondents.
On August 22, 2007, the International Trade Commission (ITC) issued its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is materially injured by reason of allegedly subsidized imports of LWRP from the People's Republic of China (PRC).
On August 24, 2007, we published a postponement of the preliminary determination of this investigation until November 26, 2007.
Petitioners
We received responses to our CVD questionnaires from ZZPC, the GOC, and a voluntary respondent, Kunshan Lets Win Steel Machinery Co., Ltd. (“Lets Win”) on September 27, 2007, September 28, 2007, October 1, 2007, October 2, 2007, and October 3, 2007. Qingdao, however, did not respond to the Department's CVD questionnaire. The petitioners filed comments on the responses from ZZPC and Lets Win on October 9, 2007, and comments on the GOC's responses on October 17, 2007.
On October 15, 2007, the Department accepted Lets Win as a voluntary respondent to the proceeding pursuant to 19 CFR 351.204(d).
We issued supplemental questionnaires as follows: the GOC on October 16, 2007, October 24, 2007, and November 19, 2007; Lets Win on October 17, 2007; and ZZPC on October 17 and October 18, 2007. We received responses to these supplemental questionnaires as follows: the GOC on October 23, 2007, November 7, 2007 and November 21, 2007; ZZPC on November 5, 2007, and November 14, 2007; and Lets Win on October 31, 2007. We received a corrected response from ZZPC on November 23, 2007, but are not considering this submission for the purposes of this preliminary determination. This submission came three days before the preliminary
The GOC and petitioners filed comments in advance of the preliminary determination on November 13 and 14, 2007, respectively. Finally, Lets Win submitted an updated questionnaire response on November 16, 2007, which was filed after the deadline originally set by the Department.
In accordance with the preamble to the Department's regulations, we set aside a period of time in our initiation notice for parties to raise issues regarding product coverage, and encouraged all parties to submit comments within 20 calendar days of publication of that notice.
The merchandise that is the subject of this investigation is certain welded carbon-quality light-walled steel pipe and tube, of rectangular (including square) cross section (LWR), having a wall thickness of less than 4mm.
The term carbon-quality steel includes both carbon steel and alloy steel which contains only small amounts of alloying elements. Specifically, the term carbon-quality includes products in which 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 vanadium, or 0.15 percent of zirconium. The description of carbon-quality is intended to identify carbon-quality products within the scope. The welded carbon-quality rectangular pipe and tube subject to this investigation is currently classified under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 7306.61.50.00 and 7306.61.70.60. While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive.
Sections 776(a)(1) and (2) of the Tariff Act of 1930, as amended (the Act), provide that the Department shall apply “facts otherwise available” if,
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information if it can do so without undue difficulties.
In this case, Qingdao did not provide information we requested that is necessary to determine a countervailing duty rate for this preliminary determination. Specifically, Qingdao did not respond to the Department's requests on August 7, 2007, and October 24, 2007, to respond to the CVD questionnaire. Thus, in reaching our preliminary determination, pursuant to sections 776(a)(2)(A) and (C) of the Act, we have based Qingdao's countervailing duty rate on facts otherwise available.
We have also identified one program for which the GOC did not provide the requested information. Specifically, in our questionnaire, we asked the GOC to provide information about the hot-rolled steel industry in the PRC (including a description of the industry, users of hot-rolled steel in the PRC, and whether hot-rolled steel producers are state-owned enterprises (SOEs)). The GOC limited its response to the “hot-rolled steel narrow strip” industry, claiming that LWRP is produced chiefly from this form of hot-rolled steel. In our supplemental questionnaire, we asked the GOC to provide the requested information for the hot-rolled steel industry as a whole. While some limited information was provided in the GOC's supplemental questionnaire response (November 7, 2007), the GOC did not provide a breakdown of the production accounted for by SOEs or that accounted for by private producers. Thus, in reaching our preliminary determination, pursuant to sections 776(a)(2)(A) and (C) of the Act, we are relying on facts otherwise available to determine the countervailable subsidy conferred by the government's provision of hot-rolled steel for less than adequate remuneration.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Section 776(b) of the Act also authorizes the Department to use as adverse facts available (AFA) information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “{i}nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
In selecting from among the facts available for Qingdao, the Department has determined that an adverse inference is warranted, pursuant to section 776(b) of the Act. By failing to submit a response to the Department's CVD questionnaire, Qingdao did not cooperate to the best of its ability in this investigation. Accordingly, we find that an adverse inference is warranted to ensure that Qingdao will not obtain a more favorable result than had it fully complied with our request in this investigation.
Similarly, we are applying an adverse inference in selecting among the facts available for valuing the benefit conferred by the GOC's provision of hot-rolled steel for less than adequate remuneration. In its response, the GOC stated, “it is difficult to provide a definitive assessment” of the share of hot-rolled production accounted for by SOEs and private suppliers because there are so many producers in China.
In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from (1) the petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any information placed on the record. It is the Department's practice to select, as AFA, the highest calculated rate in any segment of the proceeding.
The Department's practice when selecting an adverse margin from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the purpose of the facts available role to induce respondents to provide the Department with complete and accurate information in a timely manner.”
Because Qingdao failed to act to the best of its ability, as discussed above, for each program examined, we made the adverse inference that Qingdao benefitted from the program unless the record evidence made it clear that Qingdao could not have received benefits from the program because, for example, we have preliminarily found the program not countervailable.
Thus, for programs based on the provision of goods at less than adequate remuneration, we have used the ZZPC rate for the provision of hot-rolled steel for less than adequate remuneration. For value added tax (VAT) and grant programs, we are unable to utilize company-specific rates from this proceeding because neither Lets Win nor ZZPC received any countervailable subsidies from these subsidy programs. Therefore, for VAT and grant programs we are applying the highest subsidy rate for any program otherwise listed, which in this instance is ZZPC's rate for the provision of hot-rolled steel for less than adequate remuneration.
Finally, for the seven alleged income tax programs pertaining to either the reduction of the income tax rates or the payment of no income tax, we have applied an adverse inference that Qingdao paid no income tax during the period of investigation (
We do not need to corroborate the calculated subsidy rates we are using as AFA because they are not considered secondary information as they are based on information obtained in the course of this investigation.
Regarding the GOC's failure to provide requested information regarding the hot-rolled steel industry in the PRC, the Department is preliminarily rejecting prices in the PRC as possible benchmarks for determining whether hot-rolled steel is being provided for less than adequate remuneration. Instead, as described in the
Because this information is taken from the petition, it is secondary information and must be corroborated to the extent practicable. We have compared the world-market prices being used to the prices of hot-rolled steel imports into the PRC during the POI, and find that the world-market prices are reliable and relevant.
On July 24, 2007, the Department initiated the countervailing duty and antidumping duty investigations of LWRP from the PRC.
On November 16, 2007, petitioners submitted a letter, in accordance with section 705(a)(1) of the Act, requesting alignment of the final countervailing duty determination with the final determination in the companion antidumping duty investigation of LWRP from the PRC. Therefore, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), we are aligning the final countervailing duty determination with the final determination in the companion antidumping duty investigation of LWRP from the PRC. The final countervailing duty determination will be issued on the same date as the final antidumping duty determination, which is currently scheduled to be issued on April 7, 2008.
On October 25, 2007, the Department published
More recently, the Department preliminarily determined that it is appropriate and administratively desirable to identify a uniform date from which the Department will identify and measure subsidies in the PRC for purposes of the CVD law.
The period for which we are measuring subsidies, or the period of investigation (POI), is calendar year 2006.
The average useful life (AUL) period in this proceeding as described in 19 CFR 351.524(d)(2) is 15 years according to the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System for assets used to manufacture primary steel mill products. No party in this proceeding has disputed this allocation period.
The Department's regulations at 19 CFR 351.525(b)(6)(i) state that the Department will normally attribute a subsidy to the products produced by the corporation that received the subsidy. However, 19 CFR 351.525(b)(6)(ii) directs that the Department will attribute subsidies received by certain other companies to the combined sales of those companies if (1) cross-ownership exists between the companies, and (2) the cross-owned companies produce the subject merchandise, are a holding or parent company of the subject company, produce an input that is primarily dedicated to the production of the downstream product, or transfer a subsidy to a cross-owned company. The Court of International Trade (CIT) has upheld the Department's authority to attribute subsidies based on whether a company could use or direct the subsidy benefits of another company in essentially the same way it could use its own subsidy benefits.
According to 19 CFR 351.525(b)(6)(vi), cross-ownership exists between two or more corporations where one corporation can use or direct the individual assets of the other corporation(s) in essentially the same ways it can use its own assets. This regulation states that this standard will normally be met where there is a majority voting interest between two corporations or through common ownership of two (or more) corporations.
The details of the affiliations between ZZPC, Group, JZS, ZZSP, and Jiaqi are proprietary and, hence, addressed separately.
Because they are cross-owned and because Group is the parent company of
ZZPC's other input suppliers, JZS and ZZSP, provide ZZPC with steel strip. These companies are not trading companies: both produce cold-rolled steel. The types of inputs they provide to ZZPC are proprietary and are addressed separately.
In its November 13, 2007, submission, the GOC argues,
However, for any hot-rolled steel products which ZZPC purchased from JZS or ZZSP, we preliminarily determine that these companies are not input suppliers as described in 19 CFR 351.525(b)(6)(iv). Instead, as with the trading company, Jiaqi, we are treating any subsidies conferred by the government's provision of hot-rolled steel for less than adequate remuneration as having been transferred to ZZPC through JZS' and ZZSP's sale of hot-rolled steel products to ZZPC, consistent with 19 CFR 351.525(b)(6)(v).
Petitioners alleged that Baosteel received countervailable loans and that it was uncreditworthy (
Based upon our analysis of the petition and the responses to our questionnaires, we determine the following:
FIEs are encouraged to locate in designated coastal economic zones, special economic zones, and economic and technical development zones in the PRC through preferential tax rates. This program was originally created in 1988 under the
Lets Win is located in a coastal economic development zone and paid income tax at the reduced rate of 24 percent during the POI.
We preliminarily determine that the reduced income tax rate paid by “productive” FIEs under this program confers a countervailable subsidy. The reduced rate is a financial contribution in the form of revenue forgone by the GOC and it provides a benefit to the recipient in the amount of the tax savings.
To calculate the benefit, we treated the income tax savings enjoyed by Lets Win as a recurring benefit, consistent with 19 CFR 351.524(c)(1), and divided the company's tax savings received during the POI by the company's total sales during that period. To compute the amount of the tax savings, we compared the rate Lets Win would have paid in the absence of the program (30 percent) with the rate it paid (24 percent).
On this basis, we preliminarily determine that Lets Win received a countervailable subsidy of 0.27 percent
Hot-rolled steel suppliers in the PRC have varying ownership structures including state ownership, joint stock companies with state and foreign ownership, collective ownership, and wholly private ownership. According to the GOC, prices for hot-rolled steel are not set by regulation. Instead, Chinese producers set prices taking into account their production costs and supply and demand considerations. The GOC further claims that prices are differentiated in the hot-rolled steel market, with both state-owned and private producers pricing at different levels for the same product and that, at any given point in time, pricing leaders can be private or state-owned producers.
During the POI, the ZZPC companies purchased from state-owned suppliers, collectives, and privately-owned companies. Lets Win provided information that it purchased hot-rolled steel only from privately-owned suppliers.
We preliminarily determine that the GOC provided hot-rolled steel to certain of the ZZPC companies during the POI for less than adequate remuneration through the GOC-owned steel companies. In its response, the GOC listed the industries that use hot-rolled steel: construction, machinery and equipment (including industrial boilers, internal combustion engines, machine tools, electrical tools, smelter equipment, chemical equipment, feedstock processing machinery, packaging machinery, tractors, pollution prevention and remediation equipment, electricity generators and electrical motors, among others), automotive, pipe and tube, shipbuilding, railway industries (including profiled bar for rail construction and locomotive engines), petrochemical (including oil country tubular goods), household appliances, and freight containers.
We further determine preliminarily that the GOC's provision of hot-rolled steel through its state-owned producers is a government financial contribution within the meaning of section 771(5)(D)(iii) of the Act and that it confers a benefit on ZZPC because the good is being sold for less than adequate remuneration as described in section 771(5)(E)(iv) of the Act. In determining what constitutes adequate remuneration, the Department is not relying on prices in the PRC, as explained in the
We have rejected internal prices in the PRC because we do not know the share of steel produced and sold by SOEs in the PRC. As explained in the preambular language addressing 19 CFR 351.511(a), “While we recognize that government involvement in a market may have some impact on the price of the good or service in that market, such distortion will normally be minimal unless the government provider constitutes a majority, or in certain circumstances, a substantial portion of the market.”
To calculate the benefit, we compared the monthly weighted-average prices paid by the ZZPC companies for hot-rolled steel purchased from SOEs to the average monthly prices reported in
In its November 14, 2007 submission, ZZPC reported that the hot-rolled steel strip purchased by JZS from the SOE, Shangahi Baosteel Steel Products Trade Co., Ltd., Wuxi Branch is used to produce electronic pipe, which ZZPC claims is non-subject merchandise. ZZPC provided no evidence to support these claims. Therefore, for the preliminary determination, we are treating this steel as having been used as an input for LWRP.
According to the GOC, water suppliers in the PRC are highly localized. Many suppliers are SOEs, particularly in cities, but there is also private ownership. Water prices generally are regulated by the local governments.
The GOC has provided the water rate schedules in effect during the POI for Zhangjiagang, where ZZPC is located. Rate changes were effected during the POI and both sets of rates were submitted.
The GOC states that all users within a given rate category pay the same fixed rate per ton. However, based on our comparison, the rates actually paid by ZZPC are lower than the published rates for industrial users. In our supplemental questionnaire to ZZPC, we asked about this discrepancy and, while ZZPC claims it did not receive a discount, it did not adequately explain why its rates diverged from the published rates.
Based on this, we preliminarily determine that the GOC's provision of water to ZZPC during the POI confers a countervailable subsidy. The provision of water to this company is
We further determine preliminarily that the GOC's provision of water is a financial contribution within the meaning of section 771(5)(D)(iii) of the Act and that it confers a benefit on ZZPC because the good is being sold for less than adequate remuneration as described in section 771(5)(E)(iv) of the Act. In determining what constitutes adequate remuneration, the Department is relying on the schedules of prices paid by other industrial users in Zhangjiagang City during the POI. We are using this benchmark because no market-determined prices for water have been provided for this jurisdiction and we have no information indicating that there is a world-market price for water.
To calculate the benefit, we compared the monthly weighted-average prices paid by ZZPC for water with the published rates for industrial users of water in Zhangjiagang City. We treated the difference in the amounts that ZZPC would have paid using the published rates to the amounts actually paid as the benefit, and divided the benefit by ZZPC's total sales. On this basis, we preliminarily determine that ZZPC received a countervailable benefit of less than 0.005 percent
Where the countervailable subsidy rate for a program is less than .005 percent, the program is not included in the total countervailing duty rate.
Regarding Lets Win, the GOC provided the rate schedule that came into effect on September 10, 2006, for the water authority in Kunshan. Subsequent to that date, the rates actually paid by Lets Win were less than, equal to, or in excess of the newly established rates for industrial water users, suggesting that it took some time for the new rates to be reflected in the bills and payments. We intend to request an explanation from Lets Win and to request the rate schedule for the period prior to September 10, 2006, and will address whether the GOC provided water to Lets Win for less than adequate remuneration in our final determination.
In
In this investigation, the evidence submitted to date does not support a finding that the LWRP industry in the PRC received preferential financing pursuant to the GOC's Iron and Steel Policy. Therefore, we preliminarily determine that producers and exporters of LWRP in the PRC did not receive government policy loans. We will, however, continue to investigate whether the GOC's Iron and Steel Policy or other plans apply to the LWRP industry, and, if so, the purpose of those policies and whether preferential lending was provided to the LWRP industry pursuant to those policies.
Electricity consumers are divided into broad categories such as residential, commercial, large-scale industry and agriculture. The rates charged vary across customer categories and within customer categories based on the amount of electricity consumed. Moreover, among industrial users, certain industries are specifically broken out and these industries receive special, discounted rates. Based on our review of the rate schedules submitted for Jiangsu Province (where both Lets Win and ZZPC are located), discounted rates are established for producers of calcium carbide, electrolyte caustic soda, synthetic ammonia, yellow phosphorus with electric furnace, chlorine alkali, electrolyzed aluminum, and fertilizer. Thus, there is not a discounted rate for LWRP producers and, according to the GOC, the types of industries in Jiangsu province that fall into the large-scale industry category (which includes the LWRP producers) cover virtually all economic sectors outside of agriculture and services.
Based on the record evidence, we preliminarily determine that the provision of electricity to large-scale enterprises in the PRC is neither
On this basis, we preliminarily determine that the GOC's provision of electricity does not confer a countervailable subsidy.
According to the GOC, the “exemption, deduction and refund” of VAT applies if a manufacturer exports its self-produced goods by itself or via a trading company.
The Department's regulations state that in the case of an exemption upon export of indirect taxes, a benefit exists only to the extent that the Department determines that the amount exempted “exceeds the amount levied with respect to the production and distribution of like products when sold for domestic consumption.” 19 CFR 351.517(a);
To determine whether a benefit was provided under this program, the Department analyzed whether the amount of VAT exempted during the POI exceeded the amount levied with respect to the production and distribution of like products when sold for domestic consumption. Because the VAT rate levied on LWRP in the domestic market (17 percent) exceeded the amount of VAT exempted upon the export of LWRP (13 percent), the Department preliminarily determines that, for the purposes of this investigation, the VAT refund received upon the export of LWRP does not confer a countervailable benefit.
The GOC has additionally reported that effective July 1, 2007, the VAT refund rate for exports of LWRP was set at zero percent.
In its response, the GOC provided the
The POI for this investigation is January 1, 2006, through December 31, 2006, and the export restraints allegedly giving rise to a subsidy were announced on May 30, 2007,
In this investigation, Lets Win submitted its monthly purchase prices for hot-rolled steel and zinc for periods prior to and following the May 30, 2007 announcement. ZZPC did not purchase zinc, but ZZPC submitted its purchase prices for hot-rolled steel. The data show fluctuations in the prices of these inputs both before and after the announcement of the export duties. Moreover, the data available for the months after the announcement are limited. For these reasons, we cannot measure the subsidy, if any, arising from the imposition of the export duties, and we are not including these alleged subsidy programs in our cash-deposit rates.
The Department has determined that this program was terminated on January 1, 2002, with no residual benefits.
We preliminarily determine that Lets Win and ZZPC did not apply for or receive benefits during the POI under the programs listed below.
For purposes of this preliminary determination, we have relied on the GOC's and responding companies' responses to preliminarily determine non-use of the programs listed above. During the course of verification, the Department will further investigate whether these programs were used by respondent companies during the POI.
Citing Article 29 of the
Lets Win reported that it purchased its land use rights from its local county government in March 2001. ZZPC reported that it owns land use rights for three lots. For two lots, the land use rights were purchased prior to December 11, 2001. Because these purchases occurred prior to December 11, 2001, we preliminarily determine that the GOC's provision of these land use rights does not confer a countervailable subsidy.
ZZPC purchased its third lot from the Zhangjiagang Jingang Town Assets Management Company after December 11, 2001. According to ZZPC and the GOC, no appraisals or valuations of the land use rights were conducted to support this purchase.
It is difficult for the Department to reconcile the GOC's claim that the local land authority took into consideration “the prices of land in the neighboring area, local economic development level, and the specific conditions of the land”
We intend to seek further information on these questions and to issue an interim analysis describing our preliminary findings with respect to this program before the final determination so that parties will have the opportunity to comment on our findings before the final determination. In the meantime, we invite parties to submit information and argument on the basis for making a specificity determination with respect to the provision of land and how adequate remuneration should be determined. These submissions should be made no later than December 21, 2007.
In accordance with section 782(i)(1) of the Act, we will verify the information submitted by the respondents prior to making our final determination.
In accordance with section 703(d)(1)(A)(i) of the Act, we calculated an individual rate for each exporter/manufacturer of the subject merchandise. We preliminarily determine the total estimated net countervailable subsidy rates to be:
Sections 703(d) and 705(c)(5)(A) of the Act state that for companies not investigated, we will determine an all-others rate by weighting the individual company subsidy rate of each of the companies investigated by each company's exports of the subject merchandise to the United States. However, the all-others rate may not include zero and
In accordance with sections 703(d)(1)(B) and (2) of the Act, we are directing CBP to suspend liquidation of all entries of LWRP from the PRC that are entered, or withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the
In accordance with section 703(f) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Import Administration.
In accordance with section 705(b)(2) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination.
In accordance with 19 CFR 351.224(b), we will disclose to the parties the calculations for this preliminary determination within five days of its announcement.
Case briefs for this investigation must be submitted no later than one week after the issuance of the last verification report.
Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the deadline for submission of the rebuttal briefs, pursuant to 19 CFR 351.310(d), at the U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice, pursuant to 19 CFR 351.310(c). Requests should contain: (1) the party's name, address, and telephone; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
This determination is published pursuant to sections 703(f) and 777(i) of the Act.
International Trade Administration, Department of Commerce.
Notice of Application for an Export Trade Certificate of Review from Glokle, Inc.
Export Trading Company Affairs (“ETCA”), International Trade Administration, Department of Commerce, has received an application for an Export Trade Certificate of Review (“Certificate”). This notice summarizes the conduct for which certification is sought and requests comments relevant to whether the Certificate should be issued.
Jeffrey Anspacher, Director, Export
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether a Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 7021-H, Washington, DC 20230. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 07-00006.” A summary of the application follows.
GINC seeks a Certificate to cover the following specific Export Trade, Export Markets, and Export Trade Activities and Methods of Operations.
1.
All Products.
2.
All Services.
3.
Technology rights, including, but not limited to, patents, trademarks, copyrights, and trade secrets that relate to Products and Services.
4.
Export Trade Facilitation Services, including, but not limited to, professional services and assistance relating to: Government relations; state and federal export programs; foreign trade and business protocol; consulting; market research and analysis; collection of information on trade opportunities; marketing; negotiations; joint ventures; shipping and export management; export licensing; advertising; documentation and services related to compliance with customs requirements; insurance and financing; trade show exhibitions; organizational development; management and labor strategies; transfer of technology; transportation services; and the formation of shippers' associations.
The Export Markets include all parts of the world except the United States (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands).
1. With respect to the sale of Products and Services, licensing of Technology Rights and provision of Export Trade Facilitation Services, GINC may:
a. Provide and/or arrange for the provisions of Export Trade Facilitation Services;
b. Engage in promotional and marketing activities and collect information on trade opportunities in the Export Markets and distribute such information to clients;
c. Enter into exclusive and/or non-exclusive licensing and/or sales agreements with Suppliers for the export of Products, Services, and/or Technology Rights to Export Markets;
d. Enter into exclusive and/or non-exclusive arrangements with distributors and/or sales representatives in Export Markets;
e. Allocate export sales or divide Export Markets among Suppliers for the sale and/or licensing of Products, Services, and/or Technology Rights;
f. Allocate export orders among Suppliers;
g. Establish the price of Products, Services, and/or Technology Rights for sales and/or licensing in Export Markets;
h. Negotiate, enter into, and/or manage licensing agreements for the export of Technology Rights; and
i. Enter into contracts for shipping.
2. GINC and its individual Suppliers may regularly exchange information on a one-on-one basis regarding that Supplier's inventories and near-term production schedules so that GINC may determine the availability of Products for export and effectively coordinate with its distributors in Export Markets.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for information.
We, NMFS, announce the initiation of a status review for shortnose sturgeon (
Written information regarding the status of, and factors and threats affecting, shortnose sturgeon must be received by January 29, 2008.
You may submit comments, identified by “RIN 0648-XE02,” by any one of the following methods:
• Electronic submissions: Submit all electronic public comments via the
• Fax: 978-281-9394, Attention: Dana Hartley.
• Mail: Information on paper, disk or CD-ROM should be addressed to the Assistant Regional Administrator for Protected Resources, NMFS Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930.
Instructions: All comments received are a part of the public record and will generally be posted to
NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Dana Hartley, NMFS, Northeast Regional Office (978) 281-9300 ext. 6514; Stephania Bolden, NMFS, Southeast Regional Office (727) 824-5312; or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-1410.
NMFS has Endangered Species Act (ESA) jurisdiction of species listed at 50 CFR 223.102 and 224.101. The U.S. Fish and Wildlife Service (USFWS) adds species under NMFS jurisdiction to its official list (List), published at 50 CFR 17.11 (for animals) and 17.12 (for plants). Shortnose sturgeon was listed as an “endangered species threatened with extinction” under the Endangered Species Preservation Act on March 11, 1967. Shortnose sturgeon as a species remained on the endangered species list with the enactment of the ESA. We are conducting a status review to update the biological information on the status of the species. The status review will not only compile and analyze the best available information on the status of and threats to the species, it will also consider if shortnose sturgeon should be identified and assessed as Distinct Population Segments (61 FR 4722; February 1, 1996). Listing or reclassifying distinct vertebrate population segments may allow us to protect and conserve species and the ecosystems upon which they depend before large-scale decline occurs; it may also allow for more timely and less costly protection and recovery on a smaller scale. Any change in the List would require a separate rulemaking process. The regulations at 50 CFR 424.21 state that we will publish a notice in the
To support this status review, we are soliciting information relevant to the status of, and factors and threats affecting, the species, including, but not limited to, information on the following topics: (1) river-specific historical and current abundance and distribution of the species throughout its range; (2) potential factors affecting the species' current status and past or ongoing decline throughout its range by river; (3) rates of capture and release of the species from both recreational and commercial fisheries; (4) life history information (size/age at maturity, growth rates, fecundity, reproductive rate/success, preferred prey, etc.); (5) molecular information to assist in determining within-species genetic structure and distinctiveness; (6) factors and threats affecting the species' status, particularly: (a) present or threatened destruction, modification, or curtailment of habitat or range; (b) over-utilization for commercial, recreational, scientific, or educational purposes; (c) disease or predation; (d) inadequacy of existing regulatory mechanisms; or (e) other natural or manmade factors affecting its continued existence; and (7) any ongoing conservation efforts for the species.
If you wish to provide information for this review, see
If we determine that a change to the way shortnose sturgeon is entered on the List is appropriate, we will consider the critical habitat provisions of the ESA, such as Section 3 (defining critical habitat) and Section 4 (outlining the procedural and substantive considerations regarding critical habitat) and make the necessary determinations required by those provisions. If you would like to provide information regarding the physical or biological features of shortnose sturgeon habitat, the role they play in the conservation of shortnose sturgeon, and whether any natural or human-induced factors may negatively affect those features, we will accept it at this time. Please note, however, that this notice and request for information should not be construed as an indication that we have made any statutory determinations regarding shortnose sturgeon, including whether to change the List or whether the designation of critical habitat for any newly listed entity is prudent or determinable.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of three applications and proposed incidental take authorizations; request for comments.
NMFS has received applications from CGGVeritas (Veritas) and Shell Offshore, Inc. (SOI) for Incidental Harassment Authorizations (IHAs) to take marine mammals, by harassment, incidental to conducting an on-ice marine geophysical and seismic programs in the U.S. Beaufort Sea from February to May, 2008. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue two authorizations to Veritas and one authorization to SOI to incidentally take, by harassment, small numbers of three species of pinnipeds.
Comments and information must be received no later than December 31, 2007.
Comments on the applications should be addressed to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning one of the contacts listed here. The mailbox address for providing email comments is
Shane Guan, Office of Protected Resources, NMFS, (301) 713-2289, ext 137 or Brad Smith, Alaska Region, NMFS, (907) 271-5006.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Permission shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except for certain categories of activities not pertinent here, the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.
On August 8 and 14, 2007, NMFS received two applications from Veritas for the taking, by harassment, of three species of marine mammals incidental to conducting on-ice seismic surveys in Smith Bay and Pt. Thomson areas of the U.S. Beaufort Sea. On September 10, 2007, NMFS received an application from SOI for the taking, by harassment, of three species of marine mammals incidental to conducting an on-ice marine geophysical survey program offshore west of Simpson Lagoon, U.S. Beaufort Sea. Veritas plans to acquire 3D seismic data within the months of February - May, 2008. The energy source for the proposed activity will be vibroseis. The proposed SOI on-ice seismic survey will also use vibroseis as energy sources, and is scheduled to begin in early March 2008 with camp mobilization expected to begin approximately March 11 from Oliktok Point. Data acquisition will begin in mid-March and continue for approximately 60 days until mid-May, followed by camp demobilization to Oliktok Point.
The proposed Veritas projects would consist of laying recording cables with geophones on the frozen sea ice; using vibroseis techniques as the source of energy to acquire the seismic data. Seismic operations will be conducted utilizing 8 - 10 wheeled/tracked vibrators supported by Tucker SnoCats and the Challenger 95 recording cable transport vehicles. A Challenger 95 or Tucker SnoCat vehicle will travel along a pre-surveyed route and lay receiver cable lines that extend between 3 - 10 miles (4.8 - 16.1 km) long. Receiver (i.e., geophone) lines will be spaced 1,320 ft (402 m) apart; a group of 3 - 6 geophones would be located every 220 ft (67 m) along each of these lines. Ten to fifteen receiver lines will be placed on the ground at any one time all interconnected to a recording device known as a “recorder.” Vibroseis vehicles will then move along a pre-determined route most often nearly perpendicular to the recording lines. Positioning of the cables, vibroseis and recording vehicles all use Tiger Nav technology, a specialized navigation and positioning software. The Tiger Nav system integrates with GPS and Inertial Technology with Real Time Positioning, Stake-less Source, Receiver Surveying and Vehicle Tracking. The Vibrators (usually 3 - 4 that travel together) move to a pre-determined GPS point location and begin vibrating in synchrony via a radio signal. The Vibrators will vibrate usually 2 - 4 times at each location, move up to the next location about 330 ft (101 m), and continue the vibrating technique until the end of the line. This activity will occur two lines at a time. Veritas utilizes satellite imagery, existing bathymetry, drill grids and ground penetrating radar (GPR) to interpret ice integrity for proper planning. To support vibroseis and recording vehicle units, an ice thickness of at least 4 feet is required.
The first specified geographic region of Veritas activities is: (1) a 569-km
The proposed SOI on-ice marine geophysical (seismic) program would be conducted over 10 to 20 U.S. Minerals Management Service (MMS) Outer Continental Shelf (OCS) lease blocks located offshore from Oliktok Point in the Alaskan Beaufort Sea. The proposed program location is in the vicinity of Thetis and Spy Islands, north-northwest of Oliktok Point. The majority of the OCS blocks covered in the proposed program are surrounding the 33 ft (10 m) water depth contour. Assuming seismic acquisition occurred over up to 20 OCS blocks, the proposed on-ice seismic project would cover a maximum estimated 3,000 line-miles (4,828 km) of surveying within a 265 mi
Surface sources will be two types of industry-standard vibrator vehicles. Vibrators will include up to: (1) Five, 68,000-lb (30,800-kg) gross vehicle weight (GVW) Input/Output wheeled vibrators (“heavy vibes”) capable of 49,440 ft-lbs of force; and (2) nine, 20,000-lb (9,072-kg) GVW Envirovibs (modified to accommodate tracks), capable of 15,000 ft-lbs of force. Seismic data production is proposed to be collected by groups of four vibrators in series using either the heavy vibes or Envirovibs. Fewer than four vibrators per group may be used, but as a conservative assumption four are assumed for the maximum estimated exposure to marine mammals. Not all 14 Envirovibs and heavy vibes will be used at the same time. It is assumed that the Envirovibs will conduct approximately 75 percent of the program, with the “heavy vibes” accounting for approximately 25 percent.
The recording unit is comprised of approximately 13 tracked vehicles for crew transport and technical support, two tracked recording trailers, and several ice drilling units.
The SOI on-ice marine seismic program will also require a temporary, mobile camp facility geared to accommodate up to 120 people and will be composed of purpose-built accommodations which are largely self-sufficient for normal operations. Camp facilities are proposed to include as many as 30 to 40 sled trailers including medical facilities, crew quarters, offices, kitchen and dining facilities, laundry facilities, technical work spaces, generators, and fuel storage units. Tracked vehicles will be available for camp site support and access trail maintenance. Prospective mobile camp locations will be chosen based on ice conditions and safety of access to ice. These locations will be moved along with the project as it progresses within the area. The temporary, mobile camp will be stationed on grounded ice alongside the project. Mobilization and demobilization of the camp and equipment will take place from Oliktok Point. Resupply operations will periodically be required for fuel and provisions, and will come from Deadhorse through Oliktok Dock to the mobile field camp.
Four marine mammal species are known to occur within the proposed survey areas: ringed seal (
Ringed seals are widely distributed throughout the Arctic basin, Hudson Bay and Strait, and the Bering and Baltic seas. Ringed seals inhabiting northern Alaska belong to the subspecies
During winter and spring, ringed seals inhabit landfast ice and offshore pack ice. Seal densities are highest on stable landfast ice but significant numbers of ringed seals also occur in pack ice (Wiig
The seasonal distribution of ringed seals in the Beaufort Sea is affected by a number of factors but a consistent pattern of seal use has been documented since aerial survey monitoring began over 20 years ago. Recent studies indicate that ringed seals show a strong seasonal and habitat component to structure use (Williams
A reliable estimate for the entire Alaska stock of ringed seals is currently not available (Angliss and Outlaw, 2007). A minimum estimate for the eastern Chukchi and Beaufort Sea is 249,000 seals, including 18,000 for the Beaufort Sea (Angliss and Outlaw, 2007). The actual numbers of ringed seals are substantially higher, since the estimate did not include much of the geographic range of the stock, and the estimate for the Alaska Beaufort Sea has not been corrected for animals missed during the surveys used to derive the abundance estimate (Angliss and Outlaw, 2007). Estimates could be as high as or approach the past estimates of 1 - 3.6 million ringed seals in the Alaska stock (Frost, 1985; Frost
Frost and Lowry (1999) reported an observed density of 0.61 ringed seals/km
The bearded seal has a circumpolar distribution in the Arctic, and it is found in the Bering, Chukchi, and Beaufort seas (Jefferson
Seasonal movements of bearded seals are directly related to the advance and retreat of sea ice and to water depth (Kelly, 1988). During winter they are most common in broken pack ice and in some areas also inhabit shorefast ice (Smith and Hammill, 1981). In Alaska waters, bearded seals are distributed over the continental shelf of the Bering, Chukchi, and Beaufort seas, but are more concentrated in the northern part of the Bering Sea from January to April (Burns, 1981). Recent spring surveys along the Alaskan coast indicate that bearded seals tend to prefer areas of between 70 and 90 percent sea ice coverage, and are typically more abundant greater than 20 nm (37 km) off shore, with the exception of high concentrations nearshore to the south of Kivalina in the Chukchi Sea (Bengtson
There are no reliable population estimates for bearded seals in the Beaufort Sea or in the proposed project area (Angliss and Outlaw, 2007). Aerial surveys conducted by MMS in fall 2000 and 2001 sighted a total of 46 bearded seals during survey flights conducted between September and October (Treacy, 2002a; 2002b). Bearded seal numbers are considerably higher in the Bering and Chukchi seas, particularly during winter and early spring. Early estimates of bearded seals in the Bering and Chukchi seas range from 250,000 to 300,000 (Popov, 1976; Burns, 1981). Surveys flown from Shismaref to Barrow during May-June 1999 and 2000 resulted in an average density of 0.07 seals/km
Spotted seals occur in the Beaufort, Chukchi, Bering, and Okhotsk seas, and south to the northern Yellow Sea and western Sea of Japan (Shaughnessy and Fay, 1977). Based on satellite tagging studies, spotted seals migrate south from the Chukchi Sea in October and pass through the Bering Strait in November and overwinter in the Bering Sea along the ice edge (Lowry
A small number of spotted seal haul-outs are documented in the central Beaufort Sea near the deltas of the Colville and Sagavanirktok rivers (Johnson
A reliable abundance estimate for spotted seal is not currently available (Angliss and Outlaw, 2005), however, early estimates of the size of the world population of spotted seals was 335,000 to 450,000 animals and the size of the Bering Sea population, including animals in Russian waters, was estimated to be 200,000 to 250,000 animals (Burns, 1973). The total number of spotted seals in Alaskan waters is not known (Angliss and Outlaw, 2007), but the estimate is most likely between several thousand and several tens of thousands (Rugh
Incidental harassment to marine mammals could result from physical activities associated with on-ice seismic operations, which have the potential to disturb and temporarily displace some seals. For ringed seals, pup mortality could occur if any of these animals were nursing and displacement were protracted. However, it is unlikely that a nursing female would abandon her pup given the normal levels of disturbance from the proposed activities, potential predators, and the typical movement patterns of ringed seal pups among different holes. Ringed seals also use as many as four lairs spaced as far as 3,437 m (11,276 ft) apart. In addition, seals have multiple breathing holes. Pups may use more holes than adults, but the holes are generally closer together than those used by adults. This indicates that adult seals and pups can move away from seismic activities, particularly since the seismic equipment does not remain in any specific area for a prolonged time. Given those considerations, combined with the small proportion of the population potentially disturbed by the proposed activity, impacts are expected to be negligible for the ringed, bearded, and spotted seal populations.
The seismic surveys would only introduce acoustic energy into the water column and no objects would be released into the environment. In addition, the total footprint of the proposed seismic survey areas represent only a small fraction of the Beaufort Sea pinniped habitat. Sea-ice surface rehabilitation is often immediate, occurring during the first episode of snow and wind that follows passage of the equipment over the ice.
NMFS estimates that up to 984 ringed seals (0.39 percent of estimated total Alaska population of 249,000) could be taken by Level B harassment due to Veritas′ Smith Bay on-ice seismic survey, up to 477 seals (0.19 percent of total population) by Veritas′ Pt. Thomson on-ice seismic surveys, and up to 1,187 seals (0.47 percent of total population) by SOI′s on-ice geographical program. The estimated take numbers are based on consideration of the number of ringed seals that might be disturbed within each of the proposed project areas, calculated from the adjusted ringed seal density of 1.73 seal per km
Due to the unavailability of reliable bearded and spotted seals densities within the proposed project area, NMFS is unable to estimate take numbers for these two species. However, it is expected much fewer bearded and spotted seals would subject to takes by Level B harassment since their occurrence is very low within the proposed project areas, especially during spring (Moulton and Lawson, 2002; Treacy, 2002a; 2002b; Bengtson
In addition, NMFS expects that the actual take by Level B harassment from the proposed on-ice seismic programs would be much lower than the estimates
The affected pinniped species are all taken by subsistence hunters of the Beaufort Sea villages. However, on-ice seismic operations in the activity areas are not expected to have an unmitigable adverse impact on availability of these stocks for taking for subsistence uses because:
(1) Operations would end before the spring ice breakup, after which subsistence hunters harvest most of their seals; and
(2) The areas where on-ice seismic operations would be conducted are small compared to the large Beaufort Sea subsistence hunting area associated with the extremely wide distribution of ringed seals.
In addition, trained dogs will be used to locate ringed seal lairs before the onset of seismic activities. Subsistence advisors will be used as marine mammal observers during performance of the seismic program. During the seal pupping season, planned seismic line segments will be surveyed via the research biologists teamed with lair sniffing dogs; these teams will be accompanied by Inupiat subsistence hunters experienced in the area of the project.
For the two proposed Veritas on-ice seismic projects, most of the anticipated program areas are within 3 - 4 miles (4.8 - 6.4 km) of the coast on the proposed surveys. The proposed on-ice seismic surveys are not thought to hinder subsistence harvest greatly during the timing of the programs. For the proposed Smith Bay project, Nuiqsut and Barrow are the closest communities to the area of the proposed activity; while for the proposed Pt. Thomson project, Kaktovik is the closest community to the area of the proposed activity. Veritas will consult with the potentially affected subsistence communities of Barrow, Nuiqsut, Kaktovik, and other stakeholder groups to develop a Plan of Cooperation. Veritas' joint venture partner on the North Slope is the Kuukpik Corporation.
For the proposed SOI on-ice geophysical program, Plan of Cooperation meetings in the communities of Nuiqsut and Barrow are being held during October 2007. Additional following up meetings are tentatively scheduled for early winter 2008 in the affected communities to ensure that there will be no unmitigable impacts to subsistence use of marine mammal species/stocks resulting from the proposed on-ice geophysical program.
The following mitigation and monitoring measures are proposed for the subject on-ice seismic surveys. All activities will be conducted as far as practicable from any observed ringed seal lair and no energy source will be placed over a seal lair.
Trained seal lair sniffing dogs will be employed by Veritas and SOI for areas of sea ice beyond 3 m (9.8 ft) depth contour to locate seal structures under snow (subnivean) before the seismic program begins. The areas for the proposed projects will be surveys for the subnivean seal structures using trained dogs running together. Transects will be spaced 250 m (820 ft) apart and oriented 90o to the prevailing wind direction. The search tracks of the dogs will be recorded and marked. Subnivean structures will be probed by a steel rod to check if each is open (active), or frozen (abandoned). Structures will be categorized by size, structure and odor to ascertain whether the structure is a birth lair, resting lair, resting lair of rutting male seals, or a breathing hole. Any locations of seal structures will be marked and protected by a with 150 m (490 ft) exclusion distance from any existing routes and on-ice seismic activities. During active seismic vibrator source operations, the 150-m (490-ft) exclusion zone will be monitored for entry by any marine mammals.
In addition, NMFS proposes to require applicants' vehicles to avoid any pressure ridges, ice ridges, and ice deformation areas where seal structures are likely to be present.
NMFS proposes to require annual reports that must be submitted to NMFS within 90 days of completing the year's activities.The reports would contain detail descriptions of any marine mammal, by species, number, age class, and sex if possible, that is sighted in the vicinity of the proposed project areas; description of the animal's observed behaviors and the activities occurring at the time.
NMFS has determined that no species listed as threatened or endangered under the ESA will be affected by issuing the incidental harassment authorizations under section 101(a)(5)(D) of the MMPA to Veritas and SOI for these three proposed on-ice seismic survey projects.
The information provided in the Final Programmatic Environmental Assessment (EA) on the
In summary, the anticipated impact of the proposed on-ice seismic programs on the species or stocks of ringed, bearded, and spotted seals is expected to be negligible for the following reasons:
(1) The proposed activities would only occur in a small area which supports a small proportion (approximately 1 percent) of the Alaska stock of ringed seals. The numbers of bearded and spotted seals within the proposed project area is expected to be even lower than that of ringed seals.
(2) The following mitigation and monitoring procedures would be implemented: (a) using trained seal lair sniffing dogs to conduct pre-operational surveys in areas of sea ice beyond 3 m (9.8 ft) and monitoring of ringed seal lairs and breathing holes within the proposed action areas; (b) conducting activities as far away from any observed seal structures as possible; (c) establishing exclusion zones with 150 m (490 ft) from locations of seal structures; (d) vehicles to avoid any pressure ridges, ice ridges, and ice deformation areas where seal structures are likely to be present.
NMFS believes the effects of the three on-ice seismic surveys by Veritas and SOI are expected to be limited to short-term and localized behavioral changes involving relatively small numbers of ringed seals, and may also potentially affect any bearded and spotted seals in the vicinity. Also, the potential effects of the proposed on-ice seismic survey projects during 2008 will not have an
NMFS proposes to issue two IHAs to Veritas and one IHA to SOI for conducting on-ice seismic surveys in the U.S. Beaufort Sea, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. NMFS has preliminarily determined that the proposed activities each would result in the harassment of small numbers of ringed seals, and potentially any bearded and spotted seals in the vicinity; would have no more than a negligible impact on the affected pinniped species and stocks; and would not have an unmitigable adverse impact on the availability of seals for subsistence uses.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The North Pacific Fishery Management Council's (Council) Crab Committee will meet December 17-18, 2007, in Anchorage, AK.
The meeting will be held on December 17, from 8:30 a.m. to 5 p.m., and on December 18, from 8:30 a.m. until 12 noon.
The meeting will be held at the Hilton Hotel, Iliamna Room, 500 West 3rd Avenue, Anchorage, AK.
Mark Fina, North Pacific Fishery Management Council, telephone: (907) 271-2809.
The Committee will focus on programmatic issues and the effects of policy decisions related to the Bering Sea Aleutian Island crab rationalization program. The Committee will also discuss potential solutions to concerns that may arise from any adjustments to the A share/B share split, including compensation to processors from harvesters for lost economic opportunity from a shift in market power, change in landing distribution, the remaining need and necessary changes to the binding arbitration program, use and effectiveness of regional landing requirements to protect communities, and respective impacts on crew; potential solutions to existing data needs, including the need for exvessel prices, by share type and region, and first wholesale price information.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified 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 Council'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 Gail Bendixen, (907) 271-2809, at least 5 working days prior to the meeting date.
Committee for the Implementation of Textiles Agreements (CITA).
Directive to Commissioner, U.S. Customs and Border Protection (CBP) establishing agreed levels.
January 1, 2008.
Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to U.S. Customs and Border Protection website (
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
In the Memorandum of Understanding (MOU) between the Governments of the United States of America and the People's Republic of China concerning Trade in Textile and Apparel Products, signed and dated November 8, 2005, and Paragraph 242 of the
The agreed levels published below may be adjusted during the course of the year for “carryover,” or “carryforward” used in 2007, under the terms of the MOU. The limits for Categories 345/645/646 and 352/652 below have been adjusted for carryforward applied to the 2007 limits.
Baby socks in HTS numbers 6111.20.6050, 6111.30.5050 and 6111.90.5050 shall be counted in dozen pairs. These baby socks are subject to the quota level for 332/432/632-T and the sublevel for 332/432/632-B but the correct category designation 239 will be required at the time of entry for quota purposes.
In the letter published below, the Chairman of CITA directs the Commissioner, U.S. Customs and Border Protection (CBP), to establish the 2008 limits.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (refer to
Dear Commissioner: Pursuant to the Memorandum of Understanding between the Governments of the United States of America and the People's Republic of China, Concerning Trade in Textiles and Apparel Products, dated November 8, 2005, you are directed to prohibit, effective on January 1, 2008, entry into the United States for consumption and withdrawal from warehouse for consumption of cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products in the following categories and HTS numbers 6111.20.6050, 6111.30.5050 and 6111.90.5050, produced or manufactured in China and exported during the twelve-month period beginning on January 1, 2008 and extending through December 31, 2008, in excess of the following agreed levels:
Baby socks in HTS numbers 6111.20.6050, 6111.30.5050 and 6111.90.5050 shall be counted in dozen pairs for quota purposes. These baby socks are subject to the quota level for 332/432/632-T and the sublevel for 332/432/632-B but the correct category designation 239 will be required at the time of entry for quota purposes.
The agreed levels set forth above are subject to adjustment pursuant to the current MOU between the Governments of the United States and China.
Products in the above categories and HTS numbers 6111.20.6050, 6111.30.5050, and 6111.90.5050 exported during 2007 shall be charged to the applicable category limits for that year (see directive dated October 23, 2006) to the extent of any unfilled balances. In the event the limits established for that period have been exhausted by previous entries, such products shall be charged to the limits set forth in this directive.
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, U.S. Customs and Border Protection adjusting limits.
November 30, 2007.
Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of this limit, refer to the Bureau of Customs and Border Protection website (
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
Pursuant to the Memorandum of Understanding between the Governments of the United States and the People's Republic of China concerning Trade in Texile and Apparel Products, signed and dated on November 8, 2005, the current limits for certain categories are being increased for carryforward.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on October 23, 2006, as amended on November 2, 2006, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products, produced or manufactured in China and exported during the twelve-month period which began on January 1, 2007 and extends through December 31, 2007.
Effective on November 30, 2007, you are directed to adjust the current limits for the following categories, as provided for under the terms of the Memorandum of Understanding between the Governments of the United States and the People's Republic of China concerning Trade in Texile and Apparel Products, signed and dated on November 8, 2005:
The Committee for the Implementation of Textile Agreements has determined that this action falls within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Department of Education.
The Acting Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before January 29, 2008.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Acting Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before January 29, 2008.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2004-0081, by one of the following methods:
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Carrie Wheeler, Office of Air Quality Planning and Standards, Air Quality Policy Division (C504-05), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-9771; fax number: (919) 541-5509; e-mail address:
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2004-0081 which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it 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, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID numbers assigned to these actions in the subject line on the first page of your response. You may also provide the name, date, and
Reviewing authorities, either State, local or Federal, review the permit application and provides for public review of the proposed project and issues the permit based on its consideration of all technical factors and public input. The EPA, more broadly, reviews a fraction of the total applications and audits the State and local programs for their effectiveness. Consequently, information prepared and submitted by the source is essential for the source to receive a permit, and for Federal, State and local environmental agencies to adequately review the permit application and thereby properly administer and manage the NSR programs.
Information that is collected and handled according to EPA's policies set forth in title 40, chapter 1, part 2, subpart B—Confidentiality of Business Information (
The annual public reporting and recordkeeping burden for this collection of information is broken down as follows:
Since the last renewal of this ICR (November 2, 2004; 69 FR 63530), the estimated number of respondents has increased by 51 due to the decision by the U.S. Court of Appeals for the D.C. Circuit to vacate the Clean Units and Pollution Control Project Exclusion provisions of the NSR program.
EPA will consider the comments received and amend the ICRs as appropriate. The final ICR packages will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167. An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 6, 2007 (72 FR 17156).
Rating EO2.
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces two public teleconferences of the SAB Radiation Advisory Committee (RAC) augmented with additional experts to review the draft document entitled “Multi-Agency Radiation Survey and Assessment of Materials and Equipment (MARSAME) Manual,” December 2006.
The SAB Radiation Advisory Committee (RAC) MARSAME Review Panel will hold public teleconferences on Friday, December 21, 2007 from 11 a.m. to 2 p.m. (Eastern Standard Time) and Monday, March 10, 2008 from 1 p.m. to 4 p.m. (Eastern Standard Time).
The public teleconferences on Friday, December 21, 2007 and Monday, March 10, 2008 will take place via telephone only.
Members of the public who wish to obtain the call-in number and access code for the public teleconferences may contact Dr. K. Jack Kooyoomjian, Designated Federal Officer (DFO), by mail at the EPA SAB Staff Office (1400F), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; by telephone at (202) 343-9984; by fax at (202) 233-0643; or by e-mail at:
Pursuant to the Federal Advisory Committee Act (FACA), Public Law 92-463, the SAB Staff Office hereby gives notice of two public teleconferences of the SAB Radiation Advisory Committee (RAC) augmented to deal with this subject. The SAB was established by 42 U.S.C. 4365 to provide independent scientific and technical advice, consultation, and recommendations to the EPA Administrator on the technical basis for Agency positions and regulations. The augmented RAC will comply with the provisions of FACA and all appropriate SAB procedural policies.
Environmental Protection Agency (EPA).
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, the Environmental Protection Agency, Office of Research and Development (ORD), gives notice of one meeting of the Board of Scientific Counselors (BOSC) Computational Toxicology Subcommittee.
The meeting will be held on Monday, December 17, 2007, from 1 p.m. to 5 p.m. The meeting will continue on Tuesday, December 18, 2007, from 8:30 a.m. to 3 p.m. All times noted are eastern time. The meeting may adjourn early if all business is finished. Requests for the draft agenda or for making oral presentations at the meeting will be accepted up to 1 business day before the meeting.
The meeting will be held at the U.S. EPA Research Triangle Park (RTP) Campus, EPA Main Building (Room C114 on December 17 and Room C111C on December 18), 109 T. W. Alexander Dr., Research Triangle Park, North Carolina 27711. Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2007-1148, by one of the following methods:
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This is not a mailing address. Such deliveries are only accepted during the
The Designated Federal Officer via mail at: Lorelei Kowalski, Mail Code 8104-R, Office of Science Policy, Office of Research and Development, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; via phone/voice mail at: (202) 564-3408; via fax at: (202) 565-2911; or via e-mail at:
Any member of the public interested in receiving a draft BOSC agenda or making a presentation at the meeting may contact Lorelei Kowalski, the Designated Federal Officer, via any of the contact methods listed in the
Proposed agenda items for the meeting include, but are not limited to: overview of National Center for Computational Toxicology (NCCT) activities; presentations of NCCT work on ToxCast, IM/IT (information management/information technology)—informatics, a Virtual Liver, developmental systems biology, and arsenic biologically-based dose response model (BBDR); wrap up with presentation of preliminary findings; and discussion of the draft letter report. The meeting is open to the public.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than December 14, 2007.
Board of Governors of the Federal Reserve System, November 26, 2007.
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
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 December 26, 2007.
Board of Governors of the Federal Reserve System, November 26, 2007.
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before December 20, 2007.
Interested parties are invited to submit written comments. Comments should refer to “Budget Rent-A-Car System, File No. 062 3042,” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission/Office of the Secretary, Room 135-H, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Comments containing confidential material must be filed in paper form, must be clearly labeled “Confidential,” and must comply with Commission Rule 4.9(c). 16 CFR 4.9(c) (2005).
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments, whether filed in paper or electronic form, will be considered by the Commission, and will be available to the public on the FTC website, to the extent practicable, at
Lisa Rosenthal or Sarah Schroeder, FTC Western Region, San Francisco, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, (415) 848-5100.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 of the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for November 20, 2007), on the World Wide Web, at
Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the
The Federal Trade Commission has accepted an agreement to a proposed consent order with Budget Rent-A-Car System, Inc. (“Budget”), one of the nation’s largest rental car agencies.
The proposed consent order has been placed on the public record for thirty (30) days for reception of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement or make final the agreement’s proposed order.
This matter concerns deceptive practices by Budget with respect to an automatic, flat “EZ Fuel” fee it charges to renters who drive fewer than 75 miles, regardless of whether they return their rental with a full gas tank, unless they present a receipt. Budget has failed to adequately disclose the EZ Fuel fee or how renters can have the fee reversed.
The complaint alleges that Budget engaged in deceptive practices relating to its EZ-Fuel program. The complaint alleges that Budget has falsely represented that, if consumers return their rental vehicle with a full gas tank, they will not have to pay any fuel-related charge, fee, or cost. In numerous instances, however, consumers who drive their vehicle fewer than 75 miles
The complaint further alleges that Budget failed to disclose and failed to disclose adequately that consumers who drive their rental vehicle fewer than 75 miles and refuel can have the EZ Fuel fee reversed only if they present a fuel receipt. In addition, Budget failed to disclose that consumers without corporate accounts would have to present their fuel receipt inside at the rental counter after returning their rental vehicle and checking out on the return lot. These facts would be material to consumers in their rental transaction. The failure to disclose these facts, in light of the representations made, was a deceptive practice.
The proposed order contains provisions designed to prevent Budget from engaging in similar acts and practices in the future. Part I prohibits Budget from misrepresenting (A) that renters who return their vehicle with a full tank of gas will not incur any fuel-related charges; (B) any fuel-related charge, fee, cost, or requirement; or, (C) any charge, fee, or cost, or term or condition, relating to the rental of any vehicle.” Part II of the proposed order requires that Budget disclose, clearly and conspicuously, at the time of rental transaction: (A) any fuel related charges, fee, or costs; (B) any material requirements related to the fuel-related charge; and (C) the manner, if any, in which the renter can avoid such fuel-related charges. Finally, Part III of the proposed order prohibits Budget from making any representation about the benefits, costs, or parameters of any fuel-related option unless it discloses clearly and conspicuously, and in close proximity to the representation, any material terms or conditions relating to that fuel option. These conduct provisions prohibit the deceptive practices alleged in the complaint, but do not prohibit Budget from imposing fuel-related charges, so long as such charges are disclosed as required by the proposed order.
Parts IV through VII of the proposed order are reporting and compliance provisions. Part IV requires Budget to retain documents relating to its compliance with the order. Part V requires dissemination of the order now and in the future to persons with responsibilities relating to the subject matter of the order. Part VI ensures notification to the FTC of changes in corporate status. Part VII mandates that Budget submit compliance reports to the FTC. Part VIII is a provision “sunsetting” the order after twenty (20) years, with certain exceptions.
The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to modify the terms of the proposed order in any way.
By direction of the Commission.
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before December 19, 2007.
Interested parties are invited to submit written comments. Comments should refer to “Schering-Plough, File No. 071 0132,” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission/Office of the Secretary, Room 135-H, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Comments containing confidential material must be filed in paper form, must be clearly labeled “Confidential,” and must comply with Commission Rule 4.9(c). 16 CFR 4.9(c) (2005).
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments, whether filed in paper or electronic form, will be considered by the Commission, and will be available to the public on the FTC website, to the extent practicable, at
Jacqueline K. Mendel, Bureau of Competition, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, (202) 326-2603.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 of the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for November 16, 2007), on the World Wide Web, at
Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) from Schering-Plough Corporation (“Schering-Plough”), which is designed to remedy the anticompetitive effects of its acquisition of Organon BioSciences N.V. (“Organon BioSciences”) from Akzo-Nobel N.V. (“Akzo-Nobel”). Under the terms of the proposed Consent Agreement, Schering-Plough would be required to divest to Wyeth: (1) the Schering-Plough rights and assets necessary to develop, manufacture, and market live vaccines for the prevention and treatment of the Georgia 98 strain of infectious bronchitis virus in poultry; (2) the rights and assets necessary to develop, manufacture, and market live vaccines for the prevention and treatment of fowl cholera due to
The proposed Consent Agreement has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the proposed Consent Agreement and the comments received, and will decide whether it should withdraw from the proposed Consent Agreement, modify it, or make final the Decision and Order (“Order”).
Pursuant to the terms of a Letter of Intent dated March 12, 2007, Schering-Plough proposes to acquire from Akzo Nobel 100 percent of the outstanding shares of Organon BioSciences voting stock. The Commission’s Complaint alleges that the proposed acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 45, by lessening competition in the U.S. markets for the manufacture and sale of the following poultry vaccines: (1) live vaccines for the prevention and treatment of the Georgia 98 strain of infectious bronchitis virus in poultry; (2) live vaccines for the prevention and treatment of fowl cholera due to
The markets for the Georgia 98 strain of infectious bronchitis, fowl cholera, and live MG vaccines are highly concentrated, with Schering-Plough and Intervet accounting for significant market shares in each of these markets. The proposed acquisition would create a monopolist in the live Georgia 98 vaccine market and would give Schering-Plough shares of approximately eighty-five percent and seventy-two percent in the markets for live fowl cholera and live MG vaccines, respectively.
The Georgia 98 strain of infectious bronchitis is a highly contagious respiratory disease in poultry spread by contact with infected respiratory discharge and feces. Live Georgia 98 vaccines are the only vaccines that can effectively prevent and treat the Georgia 98 strain of infectious bronchitis virus. Other infectious bronchitis virus vaccine strains, administered either individually or in multiple-antigen combination vaccines, do not provide adequate protection against the Georgia 98 serotype to act as a sufficient alternative to the live Georgia 98 vaccines. The relevant market for the manufacture, distribution, and sale of live vaccines for the prevention and treatment of the Georgia 98 strain of infectious bronchitis virus in poultry in the United States is highly concentrated. Respondent Schering-Plough and Organon BioSciences are the only suppliers of live vaccines for the prevention and treatment of the Georgia 98 strain of infectious bronchitis virus in poultry in the United States. Schering-Plough’s Avimune IB98 product is the market leader with an estimated seventy-nine percent market share, while Intervet competes with its MILDVAC GA-98 product, selling the remaining twenty-one percent in the United States. The acquisition would create a monopoly by combining the only two companies with products on the market.
Live fowl cholera vaccines prevent an infectious bacterial disease in poultry caused by a common pathogenic bacterium,
MG is a respiratory disease that is transmitted laterally between chickens or through infected eggs. The relevant market for the manufacture, distribution, and sale of live
Entry into any relevant line of commerce would not be timely, likely, or sufficient to deter or counteract the anticompetitive effects of the Acquisition. Entry into any of these markets would require overcoming three major obstacles: lengthy development periods, USDA approval requirements, and customer acceptance. As a result, new entry into any of these markets sufficient to achieve a significant market impact within two years is unlikely.
The markets for the Georgia 98 strain of infectious bronchitis, fowl cholera, and MG live vaccines are highly concentrated, with Schering-Plough and Intervet accounting for substantial shares of sales in each of these markets. The proposed acquisition would create a monopolist in the live Georgia 98
The competitive concerns can be characterized as unilateral in nature. Schering-Plough and Organon BioSciences are each other’s closest competitors in all of the relevant markets. Consumers have benefitted from the price competition between Schering-Plough and Organon BioSciences. If unremedied, the proposed acquisition would likely cause higher prices and reduce incentives to improve service or product quality, resulting in significant harm to consumers in the U.S. markets for these vaccines.
The proposed Consent Agreement remedies the competitive harm caused by the proposed transaction. Pursuant to the Consent Agreement, Schering-Plough must divest or license all of the assets relating to Schering-Plough’s live vaccine for the Georgia 98 strain of infectious bronchitis (Avimune IB98), Intervet’s live fowl cholera vaccine (CHOLERVAC-PM-1) and Schering-Plough’s live MG vaccine (F VAX-MG)(“the assets to be divested”), to the Fort Dodge division of Wyeth, within ten days after the date Schering-Plough acquires Organon BioSciences. The assets to be divested include research and development, customer, supplier and manufacturing contracts and any intellectual property including existing licenses, but excluding trademarks. Fort Dodge plans to bring all manufacturing of the three vaccines in-house to its own manufacturing facilities and to add the three to its own portfolio of poultry vaccines. While Fort Dodge undertakes the process of obtaining USDA regulatory approvals and bringing vaccine production in-house, Schering-Plough will provide Fort Dodge with the vaccines pursuant to a supply and transition services agreement with a term of two years, and an option to extend it another year, individually for each of the three vaccines, if required.
The acquirer of the divested assets must receive the prior approval of the Commission. The Commission’s goal in evaluating possible purchasers of divested assets is to maintain the competitive environment that existed prior to the acquisition. A proposed acquirer of divested assets must not itself present competitive problems.
Wyeth, headquartered in Madison, New Jersey, is a global leader in pharmaceuticals, consumer health care products and animal health care products. In 2006, it had net sales of $20 billion. Wyeth’s Fort Dodge Animal Health division offers a broad range of biological and pharmaceutical products for the companion animal, equine, livestock, swine and poultry industries. Significantly, Wyeth already has an established poultry vaccine line comprised of internally developed vaccines as well as several vaccines that it has acquired and transferred to its manufacturing facilities. Fort Dodge has its own distribution network and an experienced sales force with existing relationships with major poultry producers. The three vaccines being divested to Fort Dodge are all established products that have been on the market for at least two years. Fort Dodge has its own manufacturing facilities with excess capacity and intends to bring the manufacturing of all of the products it is acquiring from Schering-Plough in-house. For these reasons, Wyeth is a strong buyer that appears well positioned to replace the competition lost by the acquisition.
If the Commission determines that Wyeth is not an acceptable acquirer of the assets to be divested, the parties must unwind the sale and divest the Products within six months of the date the Order becomes final to another Commission-approved acquirer. If the parties fail to divest within six months, the Commission may appoint a trustee to divest the Product assets.
The proposed remedy contains several provisions to ensure that the divestitures are successful. The Order requires Schering-Plough to provide transitional services to enable the Commission-approved acquirer to obtain all of the necessary approvals from the USDA. These transitional services include technology transfer assistance to manufacture the Products in substantially the same manner and quality employed or achieved by Schering-Plough and Akzo-Nobel.
The Commission has appointed Dr. David A. Espeseth to oversee the implementation of the Order as the Interim Monitor Trustee. Dr. Espeseth retired in 1998 from a career at the USDA, where his last position was as Special Assistant to the Deputy Administrator of Veterinary Services and where he spent the majority of his 37 years regulating veterinary biologic products (vaccines). Today, he is a consultant to animal health companies, assisting with regulatory issues before the USDA and technology transfers. Dr. Espeseth’s strengths are his strong regulatory background, his experience overseeing technology transfers, and experience resolving disputes between companies and the USDA.
Dr. Espeseth is an excellent candidate to handle the expected duties and responsibilities of the Interim Monitor Trustee in this matter. He has the requisite capability and applicable knowledge to ensure the proper transfer of the divested assets, oversee the transfer of the relevant technology, monitor the critical manufacturing and supply activities of the Respondent, ensure the Respondent’s compliance with the Order and related agreements, respond to Commission needs, and perform other related services as may be required. Accordingly, the Commission has appointed Dr. Espeseth as the Interim Monitor Trustee.
The purpose of this analysis is to facilitate public comment on the proposed Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Order or to modify its terms in any way.
By direction of the Commission.
Office of the Secretary, Department of Health and Human Services.
Notice.
As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services is hereby giving notice that the National Biodefense Science Board (NBSB) will be holding its inaugural meeting. The meeting is open to the public.
The meeting will be held on December 17, 2007, from 9 a.m. to 5 p.m., and on December 18, 2007, from 9 a.m. to 5 p.m.
The Ronald Reagan Building and International Trade Center, Atrium Ballroom, 1300 Pennsylvania Avenue, NW., Washington, DC 2004. Phone: 202-312-1300.
CAPT Leigh A. Sawyer, DVM, MPH, Executive Director, National Biodefense Science Board, Office of the Assistant Secretary for Preparedness and Response, U.S. Department of Health and Human Services, 200 Independence
Pursuant to section 319M of the Public Health Service Act (42 U.S.C. 247d-7f) as added by section 402 of the Pandemic and All-Hazards Preparedness Act (Pub. L. 109-417) the Secretary of Health and Human Services is required to establish the National Biodefense Science Board and hold the inaugural meeting of the Board prior to December 19, 2007.
The Board shall provide expert advice and guidance to the Secretary on scientific, technical and other matters of special interest to the Department of Health and Human Services regarding current and future chemical, biological, nuclear, and radiological (CBRN) agents, whether naturally occurring, accidental, or deliberate.
The agenda will include topics related to current and future challenges to national preparedness related to CBRN agents, and will include discussions regarding matters that the Board will consider in greater depth. A tentative schedule will be made available on December 2, 2007 at the NBSB Web site,
Any member of the public interested in presenting oral comments at the meeting may notify the Contact person listed on this notice by December 10, 2007. Interested individuals and representatives of an organization may submit a letter of intent and a brief description of the organization represented. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee. All written comments must be received prior to December 10, 2007 and should be sent by e-mail with “NBSB Public Comment” as the subject line or by regular mail to the Contact person listed above. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the designated Contact person by December 10, 2007.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
On the morning of the second day the Committee will hear an update from the Office of the National Coordinator for Health Information Technology (ONCHIT) followed by Committee actions on selected topics from the subcommittees. In the afternoon there will be a follow up discussion to the ONCHIT presentation and an update from the subcommittees on current and planned activities. There will be a short discussion of future agendas before the meeting adjourns.
The times shown above are for the full Committee meeting. Subcommittee breakout sessions are scheduled for late in the afternoon of the first day in the morning prior to the full Committee meeting on the second day. Agendas for these breakout sessions will be posted on the NCVHS Web site (URL below) when available.
Substantive program information as well as summaries of meetings and a roster of committee members may be obtained from Marjorie S. Greenberg, Executive Secretary, NCVHS, National Center for Health Statistics, Centers for Disease Control and Prevention, 3311 Toledo Road, Room 2402, Hyattsville, Maryland 20782, telephone (301) 458-4245. Information also is available on the NCVHS home page of the HHS Web Site:
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (301) 458-4EEO (4336) as soon as possible.
National Institute of Environmental Health Sciences (NIEHS); National Institutes of Health (NIH).
Announcement of report availability and request for comment.
CERHR announces the availability of the final bisphenol A expert panel report on November 26, 2007, from the CERHR Web site (
The final bisphenol A expert panel report will be available for public comment on November 26, 2007. Written public comments on this report should be received by January 25, 2008.
Comments on the expert panel report and any other correspondence should be sent to Dr. Michael D. Shelby, CERHR Director, NIEHS, P.O. Box 12233, MD EC-32, Research Triangle Park, NC 27709, fax: (919) 316-4511, or e-mail:
Bisphenol A (CAS RN: 80-5-07) is a high production volume chemical used in the production of epoxy resins, polyester resins, polysulfone resins, polyacrylate resins, polycarbonate plastics, and flame retardants. Polycarbonate plastics are used in food and drink packaging; resins are used as lacquers to coat metal products such as food cans, bottle tops, and water supply pipes. Some polymers used in dental sealants and tooth coatings contain bisphenol A. Exposure to the general population can occur through direct contact to bisphenol A or by exposure to food or drink that has been in contact with a material containing bisphenol A. CERHR selected this chemical for evaluation because of (1) high production volume, (2) widespread human exposure, (3) evidence of reproductive toxicity in laboratory animal studies, and (4) public concern.
The CERHR convened an expert panel on March 5-7, 2007, and on August 6-8, 2007, to review and revise the draft and interim draft expert panel reports and reach conclusions regarding whether exposure to bisphenol A is a hazard to human development or reproduction. The expert panel also identified data gaps and research needs. CERHR solicited public comments on drafts of the expert panel report several times (FR, December 12, 2006, Vol. 71, No. 238 pp. 74534-74536; FR, April 2, 2007, Vol. 72, No. 62 pp. 15695-15696; FR, May 1, 2007, Vol. 72, No. 83 pp. 23833-23834).
Following receipt of public comments on the final bisphenol A expert panel report, CERHR staff will prepare the NTP-CERHR monograph. NTP-CERHR monographs are divided into four major sections: (1) The NTP Brief that provides the NTP's interpretation of the potential for the chemical to cause adverse reproductive and/or developmental effects in exposed humans, (2) a roster of expert panel members, (3) the final expert panel report, and (4) public comments received on that report. The NTP Brief is based on the expert panel report, public comments on that report, public and peer review comments on the draft NTP Brief, and any new, relevant information that becomes available after the expert panel meetings.
CERHR invites written public comments on the bisphenol A expert panel report. Written comments should be sent to Dr. Michael Shelby (see
The NTP established the CERHR in June 1998 [FR, December 14, 1998 (Vol. 63, No. 239, pp. 68782)]. CERHR is a publicly accessible resource for information about adverse reproductive and/or developmental health effects associated with exposure to environmental and/or occupational exposures. Expert panels conduct scientific evaluations of agents selected by CERHR in public forums.
CERHR invites the nomination of agents for review or scientists for its expert registry. Information about CERHR and the nomination process can be obtained from its Web site (
CERHR follows a formal, multi-step process for review and evaluation of selected chemicals. A description of the evaluation process is available on the CERHR Web site under “About CERHR” or in printed copy from CERHR.
Office of the Assistant Secretary for Preparedness and Response (ASPR), HHS.
Amendment (to the January 26, 2007 Declaration under the Public Readiness and Emergency Preparedness Act).
Declaration pursuant to section 319F-3 of the Public Health Service Act (42 U.S.C. 247d-6d) to provide targeted liability protections for pandemic countermeasures based on a credible risk that avian influenza viruses spread and evolve into strains capable of causing a pandemic of human influenza.
First “whereas” clause, first sentence, insert “H7 and H9 vaccines” following “(H5N1).”
Second “whereas” clause, first sentence, insert “H7 and H9” following “H5N1” to read “Whereas an H5N1, [H7 and H9] avian influenza viruse[s] may evolve into strain[s] * * *.”
In Section I, paragraph 2, first sentence insert “H7 and H9” following “(H5N1)” to read “* * * pandemic countermeasure influenza A (H5N1, [H7 and H9]) vaccine[s].”
In Section I, paragraph 2, third sentence insert “H7 and H9” following “(H5N1)” to read “* * * pandemic countermeasure influenza A (H5N1, [H7 and H9]) vaccine[s] * * *.”
In Section II, paragraph 1, insert “or an H7 or H9” following “(H5N1).”
In Section VIII, strike the sentence “This Declaration has not previously been amended.” and replace it with: “This is the first amendment to this Declaration. The Original Declaration was published in the
All other provisions of the Original declaration remain in full force.
This amendment to the Declaration will be published in the
This notice and the attached declaration are effective November 30, 2007.
RADM W. Craig Vanderwage, MD, Assistant Secretary for Preparedness and Response, Office of the Secretary, Department of Health and Human Services, 200 Independence Avenue, SW., Washington, DC 20201, Telephone (202) 205-2882 (this is not a toll-free number).
Agency for Healthcare Research and Quality, Department of Health and Human Services.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) allow the renewal of the generic information collection project: “AHRQ Grants Reporting System (GRS).” In accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)), AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by December 31, 2007.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, 540 Gaither Road, Room #5036, Rockville, MD 20850, or by e-mail at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from AHRQ's Reports Clearance Officer.
Doris Lefkowitz, AHRQ, Reports Clearance Officer, (301) 427-1477.
AHRQ has identified the need to establish a systematic method for its grantees to report project progress and important preliminary findings for grants funded by the Agency. The proposed system will address the shortfalls in the current reporting process and establish a consistent and comprehensive grants reporting solution for AHRQ. Currently, AHRQ receives grants continuation applications on an annual basis from all grantees. The progress report, which represents a portion of the annual continuation application, is inadequate because it is too infrequent and does not necessarily capture the information that AHRQ requires to respond to internal and external inquiries. The reporting system will also provide a centralized repository of grants research information that can be used to support initiatives within the Agency's research plans for the future and to support activities such as performance monitoring, budgeting, knowledge transfer as well as strategic planning. AHRQ currently conducts quarterly conference calls with some grantees. The content, frequency, and focus of these calls vary. In some grant programs, the number of participants on these calls may be so large as to prohibit quarterly updates from all participants in order to avoid creating an extremely lengthy conference call and to allow the Agency to address other important issues during these calls. The GRS will support the timely collection of important information related to the life cycle of a grant. This information includes: Significant changes in project goals, methods, study design, sample or subjects, interventions, evaluation, dissemination, training, key personnel, key preliminary findings; significant problems and resolutions; publications and presentations; tools and products; and new collaborations/partnerships with AHRQ grantees or others conducting related research. Collecting this information in a systematic manner will:
• Promote the transfer of critical information more frequently and efficiently which will enhance the Agency's ability to support research designed to improve the outcomes and quality of health care, reduce its costs, and broaden access to effective services.
• Increase the efficiency of the Agency in responding to ad-hoc information requests, Freedom of Information Act requests, and producing responses related to federally mandated programs and regulations.
• Establish a consistent approach throughout the Agency for information collection about grant progress and a systematic basis for oversight and for facilitating potential collaboration with or among grantees.
• Decrease the inconvenience and burden on grantees of unanticipated adhoc requests for information by the Agency in response to particular (one-time) internal and external requests for information.
This proposed information collection was previously published in the
Confidential commercial information will be protected in accordance with 18 U.S.C. 1905. Information about Principal Investigators will be maintained in accordance with the Privacy Act, 5 U.S.C. 552a. Also, individuals and organizations will be assured of the confidentiality of their data under section 934(c) of the Healthcare Research and Quality Act of 1999. The submitted reports will be printed and included in the official file for each grant. All of these files will be retained according to existing agency policies and procedures and archived as required. The data will be collected using a Web based reporting interface developed specifically for the purpose of collecting information quarterly. To reduce burden and to the extent possible, these forms will be prepopulated with reoccurring information needed to specifically identify the institution, project, principal investigator, and other similar information.
This information collection will not impose a cost burden on the respondents beyond that associated with their time to provide the required data. There will be no additional costs for capital equipment, software, computer services, etc.
The annual cost to the government is $100,000 for licensing, support and maintenance.
In accordance with the above-cited Paperwork Reduction Act legislation, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by December 31, 2007.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-6974, or e-mailed to
Karen L. Nelson, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4816.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under section 510 of the Federal Food, Drug, and Cosmetic Act (the act), (21 U.S.C. 360), FDA is authorized to establish a system for registration of producers of drugs and for listing of drugs in commercial distribution. To implement section 510 of the act, FDA issued part 207 (21 CFR part 207). Under current
Under current §§ 207.21 and 207.22, establishments, both domestic and foreign, must register with FDA by submitting Form FDA-2656 (Registration of Drug Establishment) within 5 days after beginning the manufacture of drugs or biologicals, or within 5 days after the submission of a drug application or biological license application. In addition, establishments must register annually by returning, within 30 days of receipt from FDA, Form FDA-2656e (Annual Update of Drug Establishment) (Note: This form is no longer mailed to registrants by FDA; updating registration information is estimated in the table in this document by the information submitted annually on Form FDA-2656). Changes in individual ownership, corporate or partnership structure, location, or drug-handling activity must be submitted as amendments to registration under current § 207.26 within 5 days of such changes. Distributors that elect to submit drug listing information must submit a Form FDA-2656 to FDA and a copy of the completed form to the registered establishment that manufactured the product to obtain a labeler code. Establishments must, within 5 days of beginning the manufacture of drugs or biologicals, submit to FDA a listing for every drug or biological product in commercial distribution at that time by using Form FDA-2657 (Drug Product Listing). Private label distributors may elect to submit to FDA a listing of every drug product they place in commercial distribution. Registered establishments must submit to FDA drug product listing for those private label distributors who do not elect to submit listing information by using Form FDA-2658 (Registered Establishments' Report of Private Label Distributors).
Under current § 207.25, product listing information submitted to FDA by domestic and foreign manufacturers must, depending on the type of product being listed, include any new drug application number or biological establishment license number, copies of current labeling and a sampling of advertisements, a quantitative listing of the active ingredient for each drug or biological product not subject to an approved application or license, the National Drug Code number, and any drug imprinting information.
In addition to the product listing information required on Form FDA-2657, FDA may also require, under current § 207.31, a copy of all advertisements and a quantitative listing of all ingredients for each listed drug or biological product not subject to an approved application or license; the basis for a determination, by the establishment, that a listed drug or biological product is not subject to marketing or licensing approval requirements; and a list of certain drugs or biological products containing a particular ingredient. FDA may also request, but not require, the submission of a qualitative listing of the inactive ingredients for all listed drugs or biological products, and a quantitative listing of the active ingredients for all listed drugs or biological products subject to an approved application or license.
Under current § 207.30, establishments must update their product listing information by using Form FDA-2657 and/or Form FDA-2658 every June and December or, at the discretion of the establishment, when any change occurs. These updates must include the following information: (1) A listing of all drug or biological products introduced for commercial distribution that have not been included in any previously submitted list; (2) all drug or biological products formerly listed for which commercial distribution has been discontinued; (3) all drug or biological products for which a notice of discontinuance was submitted and for which commercial distribution has been resumed; and (4) any material change in any information previously submitted. No update is required if no changes have occurred since the previously submitted list.
In the
FDA estimates the annual information collection burden for current part 207 as follows:
Food and Drug Administration, HHS.
Notice of public hearing; reopening of comment period.
The Food and Drug Administration (FDA) is reopening to January 15, 2008, the comment period for the notice of public hearing that published in the
Submit written or electronic comments by January 15, 2008.
You may submit comments, identified by Docket No. 2007N-0277, by any of the following methods:
Submit electronic comments in the following ways:
• Federal eRulemaking Portal:
• Agency Web site:
Submit written submissions in the following ways:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal or the agency Web site, as described previously in the
Juanita Yates, Center for Food Safety and Applied Nutrition (HFS-555), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-1731.
In the
The agency has received a request for a 60-day extension of the comment period for the notice of public hearing. The request conveyed concern that the comment period, which closed 60 days subsequent to the public hearing held September 10 and 11, 2007, did not allow sufficient time to develop a meaningful or thoughtful response to the request for comments on the issues and questions presented in section III of the notice.
FDA has considered the request and is reopening the comment period for the notice of public hearing, which closed November 12, 2007, for 60 days, until January 15, 2008. The agency believes that reopening the comment period for 60 days allows adequate time for interested persons to submit comments on the issues and questions presented in section III of the notice without significantly delaying the agency's consideration of the use of symbols to communicate nutrition information on food labels.
Interested persons may submit to the Division of Dockets Management (see
Please note that in January 2008, the FDA Web site is expected to transition to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. After the transition date, electronic submissions will be accepted by FDA through the FDMS only. When the exact date of the transition to FDMS is known, FDA will publish a
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a document entitled “Guidance for Industry and FDA Staff: Class II Special Controls Guidance Document: Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Separation Principle” dated November 2007. The guidance document serves as the special control for the automated blood cell separator device operating on a centrifugal or filtration separation principle intended for the routine collection of blood and blood components, and describes a means by which the device may comply with the requirement of special controls for class II devices. Elsewhere in this issue of the
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of the guidance to the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 301-827-1800. See the
Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to either
Nathaniel L. Geary, Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448, 301-827-6210.
FDA is announcing the availability of a document entitled “Guidance for Industry and FDA Staff: Class II Special Controls Guidance Document: Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Separation Principle” dated November 2007. This special controls guidance identifies the relevant classification regulation that provides a description of the applicable automated blood cell separator device. In addition, other sections of this special control guidance list the risks to health identified by FDA and describe measures that, if followed by manufacturers and combined with general controls, will ordinarily address the risks associated with these automated blood cell separators.
In the
The guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents FDA's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirement of the applicable statutes and regulations.
This guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collection of information in this guidance was approved under OMB control number 0910-0594.
Interested persons may, at any time, submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the guidance at either
Under the provisions of section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institute of Allergy and Infectious Diseases (NIAID), the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request to review and approve the information collection listed below. This proposed information collection was previously published in the
In compliance with the requirement of section 3506©(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the Fogarty International Center (FIC), the National Institutes of Health (NIH), will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Dr. Linda Kupfer, Fogarty International Center, National Institutes of Health, 16 Center Drive, Bethesda, MD 20892, or call non-toll-free number 301-496-3288, or e-mail your request, including your address to:
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
NIH inventors have developed small molecules that simulate the structure of the amino acid sequence that Wip1 recognizes. The structure of the small molecules allows for specific targeting to Wip1. These small molecules have the ability to significantly inhibit Wip1 phosphatase activity at the micromolar level. As a result, these small molecules can be used in the design of therapeutics for cancers that overexpress Wip1.
Can be used either alone or in combination with other known anti-cancer therapeutics.
Small molecules are stable and have the ability to effectively penetrate cells.
Can be applied to many different types of cancer.
The successful inhibition of a new target in cancer therapy could provide far-reaching social benefit in the treatment of multiple cancers.
This invention identifies two polymorphic genetic markers in the
U.S. Patent No. 5,556,763 issued 17 Sep 1996 (HHS Reference No. E-231-1995/3-US-01);
U.S. Patent No. 5,889,143 issued 10 Dec 1996 (HHS Reference No. E-231-1995/3-US-02);
U.S. Patent Application No. 09/280,655 filed 29 Mar 1999 (HHS Reference No. E-231-1995/3-US-03);
U.S. Patent No. 5,658,744 issued 19 Aug 1997 (HHS Reference No. E-232-1995/0-US-01);
U.S. Patent No. 5,965,366 issued 12 Dec 1999 (HHS Reference No. E-232-1995/1-US-01); and any foreign equivalent patents and patent applications.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the United States in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
This invention regards the development of hybridomas (C4H3) for the production of antibodies that are highly specific for a particular pMHC complex consisting of hen egg lysozyme peptide 46-61 (HEL) and the I-A
Quantitation and distribution of pMHC complexes on cells.
Study antigen processing in experimental immunological research systems.
HEL-I-A
2. A Porgador
Available for licensing is a novel chemical compound which is bifunctional and binds to AR. This compound is comprised of tubulin-binding and steroid receptor-binding moieties. This compound is designed to antagonize AR function in a nonclassical manner by several mechanisms and kills hormone-refractory prostate cells better than both functional moieties. This compound is a first-in-class of bifunctional steroid receptor binding agents that can antagonize steroid receptors in a variety of hormone-dependent diseases, such as breast and prostate cancer.
Method to treat hormone resistant prostate cancer and potentially other steroid receptor dependent diseases such as breast cancer.
An estimated 218,890 new cases of prostate cancer and 27,050 deaths due to prostate cancer in the United States in 2007.
An estimated 180,510 new cases of breast cancer and 40,060 deaths due to breast cancer in the United States in 2007.
The technology relates to the SSIP immunotoxin that can be used to kill cells expressing mesothelin on their surfaces, such as mesothelioma, ovarian cancer, lung cancer, ovarian cancer and stomach cancer. Additionally, it can be used for the detection of mesothelin expressing cells present in a biological sample.
The SSIP immunotoxin is a recombinant immunotoxin generated by the fusion of a high affinity anti-mesothelin Fv (SS1) with a 38 kDa portion of
The immunotoxin can be used as a stand alone treatment and in combination with standard chemotherapy.
Phase 2 studies to begin shortly for combination therapy using SS1P and standard chemotherapy.
2. Y Zhang
2. U.S. Patent Nos. 6,051,405, 5,863,745, and 5,696,237 “Recombinant Antibody-Toxin Fusion Protein” [HHS Ref. No. E-135-1989/0];
3. U.S. Patents 5,747,654, 6,147,203, and 6,558,672 entitled “Recombinant Disulfide-Stabilized Polypeptide Fragments Having Binding Specificity” [HHS Ref. No. E-163-1993/0];
4. U.S. Patent No. 6,153,430, and U.S. Patent Application No. 09/684,599 “Nucleic Acid Encoding Mesothelin, a Differentiation Antigen Present on Mesothelium, Mesotheliomas and Ovarian Cancers” [HHS Ref. No. E-002-1996/0];
5. U.S. Patent 6,083,502 entitled “Mesothelium Antigen and Methods and Kits for Targeting It” [HHS Ref. No. E-002-1996/1];
6. U.S. Patent Application 09/581,345: “Antibodies, Including Fv Molecules, and Immunoconjugates Having High Binding Affinity for Mesothelin and Methods for Their Use” [HHS Ref. No. E-021-1998/0];
7. PCT Application No. PCT/US01/18503, “Pegylation of Linkers Improves Antitumor Activity and Reduces Toxicity of Immunoconjugates” [HHS Ref. No. E-216-2000/2];
8. PCT Application No. PCT/US2006/018502 and U.S. Patent Application No. 60/681,104, entitled “Anti-Mesothelin Antibodies Useful For Immunological Assays” [HHS Ref. No. E-015-2005/0-US-01]; and
9. Any related foreign filed national stage applications claiming priority to such patent applications and patents listed above.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health, Public Health Service, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i), that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of an exclusive license to practice the invention embodied in U.S. Patent No. 5,714,313, issued February 03, 1998, entitled “Simple Method For Detecting Inhibitors Of Retroviral Replication” (HHS Ref. E-054-1991/1-US-01) (
Only written comments and/or application for a license, which are received by the NIH Office of Technology Transfer on or before January 29, 2008 will be considered.
Requests for a copy of the patent application, inquiries, comments and other materials relating to the contemplated license should be directed to: Sally Hu, Ph.D., M.B.A., Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; E-mail:
The subject technology discloses a DNA vector comprised of a selectable marker gene inserted into a retrotransposon for use in identifying and selecting cells in which retrotransposition has occurred. This novel method uses a retrotransposon comprised of a retroviral reverse transcriptase/RNAse H gene domain, which creates a unique restriction enzyme site wherever reverse transcription occurs. This novel system offers a means of identifying compounds or agents that can inhibit retrotransposition or retroviral replication. Previous methods developed to detect retrotransposition have not been able to accurately identify DNA in which reverse transcription has occurred. Certain types of retrotransposition are similar to retroviral replication. Thus, this method is applicable to identifying antiretroviral compounds as well as inhibitors of retrotransposition.
The field of use may be limited to the development of FDA approved HIV resistance diagnosis kit through the combination of the subject technology and AmiKana's proprietary yeast based HIV protease phenotyping procedure (Patent Publication No. WO2006000693).
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within 60 days from the date of this published Notice, NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Properly filed competing applications for a license filed in response to this notice will be treated as objections to the contemplated license. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Federal Emergency Management Agency, DHS.
Notice of teleconference meeting.
The National Advisory Council (NAC) will be holding a teleconference meeting for purposes of discussing governance and standard operating procedures. The teleconference meeting will be open to the public.
The meeting will be held via teleconference only. Members of the public who wish to obtain the call-in number, access code, and other information for the public teleconference may contact Alyson Price as listed in the
All written comments must be received by December 14, 2007. All submissions received must include the docket number FEMA-2007-0013 and may be submitted by any one of the following methods:
Alyson Price, Designated Federal Officer, Federal Emergency Management Agency, 500 C Street, SW., (E Street, 3rd Floor), Washington, DC 20472, telephone 202-646-3746, fax 202-646-3061, and e-mail
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), Public Law 92-463, as amended (5 U.S.C. App. 1
The tentative agenda will include discussions on governance and standard operating procedures for the NAC. A final agenda will be available on the NAC Web site at
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, Department of Housing and Urban Development, Room 7262, 451 Seventh Street, SW., Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 1-800-927-7588.
In accordance with the December 12, 1988 court order in
The U.S. Department of the Interior, on behalf of the interdepartmental National Invasive Species Council, proposes to appoint new members to the Invasive Species Advisory Committee (ISAC). The Secretary of the Interior, acting as administrative lead, is requesting nominations for qualified persons to serve as members of the ISAC.
Nominations must be postmarked by January 14, 2008.
Nominations should be sent to Lori Williams, Executive Director, National Invasive Species Council (OS/NISC), Regular Mail: 1849 C Street, NW., Washington, DC 20240; Express Mail: 1201 Eye Street, NW., 5th Floor, Washington, DC 20005.
Kelsey Brantley, Program Analyst, at (202) 513-7243, fax: (202) 371-1751, or by e-mail at
The purpose and role of the ISAC are to provide advice to the National Invasive Species Council (NISC), as authorized by Executive Order 13112, on a broad array of issues including preventing the introduction of invasive species, providing for their control, and minimizing the economic, ecological, and human health impacts that invasive species cause. NISC is Co-chaired by the Secretaries of the Interior, Agriculture, and Commerce, and is charged with providing coordination, planning and leadership regarding invasive species issues. Pursuant to the Executive Order, the Council developed a National Invasive Species Management Plan, which is available on the Web at
The role of ISAC is to maintain an intensive and regular dialogue regarding the aforementioned issues. ISAC provides advice in cooperation with stakeholders and existing organizations addressing invasive species. The ISAC meets up to three (3) times per year.
Terms for many of the current members of the ISAC will expire in June 2008. After consultation with the other members of NISC, the Secretary of the Interior will actively solicit new nominees and appoint members to ISAC. Prospective members of ISAC should be knowledgeable in and represent one or more of the following communities of interests: weed science, fisheries science, rangeland management, forest science, entomology, nematology, plant pathology, veterinary medicine, the broad range of farming or agricultural practices, biodiversity issues, applicable laws and regulations relevant to invasive species policy, risk assessment, biological control of invasive species, public health/epidemiology, industry activities, international affairs or trade, tribal or State government interests, environmental education, ecosystem monitoring, natural resource database design and Integration, and internet-based management of conservation issues.
Prospective nominees should also have practical experience in one or more of the following areas: representing sectors of the national economy that are significantly threatened by biological invasions (e.g., agriculture, fisheries, public utilities, recreational users, tourism, etc.); representing sectors of the national economy whose routine operations may pose risks of new or expanded biological invasions (e.g., shipping, forestry, horticulture, aquaculture, pet trade, etc.); developing natural resource management plans on regional or ecosystem-level scales; addressing invasive species issues, including prevention, control and monitoring, in multiple ecosystems and on multiple scales; integrating science and the human dimension in order to create effective solutions to complex conservation issues including education, outreach, and public relations experts; coordinating diverse groups of stakeholders to resolve complex environmental issues and conflicts; and complying with NEPA and other Federal requirements for public involvement in major conservation plans. Members will be selected in order to achieve a balanced representation of viewpoints, so to effectively address invasive species issues under consideration. No member may serve on the ISAC for more than two (2) consecutive terms. All terms will be limited to three (3) years in length.
Members of the ISAC and its subcommittees serve without pay. However, while away from their homes or regular places of business in the performance of services of the ISAC, members shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the government service, as authorized by section 5703 of Title 5, United States Code.
Employees of the Federal Government are not eligible for nomination or appointment to ISAC.
Nominations should be typed and must include each of the following:
1. A brief summary of no more than two (2) pages explaining the nominee's suitability to serve on the ISAC.
2. A resume or curriculum vitae.
3. At least two (2) letters of reference.
Incomplete nominations (missing one or more of the items described above) will not be considered. Nominations should be postmarked no later than January 14, 2008, to Lori Williams, Executive Director, National Invasive Species Council (OS/NISC), Regular Mail: 1849 C Street, NW., Washington, DC 20240; Express Mail: 1201 Eye Street, NW., 5th Floor, Washington, DC 20005.
The Secretary of the Interior, on behalf of the other members of NISC, is actively soliciting nominations of qualified minorities, women, persons with disabilities and members of low income populations to ensure that recommendations of the ISAC take into account the needs of the diverse groups served.
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (Fish and Wildlife Service) have sent an Information Collection Request (ICR) to OMB for review and approval. The ICR, which is summarized below, describes the nature of the collection and the estimated burden and cost. We are combining three surveys in this ICR because the surveys are interrelated and/or dependent upon each other:
(1) Migratory Bird Hunter Surveys, currently approved under OMB Control No. 1018-0015, which expires February 28, 2008.
(2) Parts Collection Survey, also approved under OMB Control No. 1018-0015.
(3) Sandhill Crane Harvest Survey, currently approved under OMB Control No. 1018-0023, which expires November 30, 2007.
We 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. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must submit comments on or before December 31, 2007.
Send your comments and suggestions on this ICR to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-6566 (fax) or OIRA_DOCKET@OMB.eop.gov (e-mail). Please provide a copy of your comments to Hope Grey, Information Collection Clearance Officer, Fish and Wildlife Service, MS 222-ARLSQ, 4401 North Fairfax Drive, Arlington, VA 22203 (mail); (703) 358-2269 (fax); or hope_grey@fws.gov (e-mail).
To request additional information about this ICR, contact Hope Grey by mail, fax, or e-mail (see ADDRESSES) or by telephone at (703) 358-2482.
Under the Migratory Bird Harvest Program, State licensing authorities collect the name and address information needed to provide a sample frame of all licensed migratory bird hunters. Since Federal regulations require that the States collect this information, we are including the associated burden in our approval request to OMB.
The Migratory Bird Hunter Survey is based on the Migratory Bird Harvest Information Program, under which each State annually provides a list of all migratory bird hunters in the State. We randomly select migratory bird hunters; send them either a waterfowl questionnaire, a dove and band-tailed pigeon questionnaire, a woodcock questionnaire, or a snipe, rail, gallinule and coot questionnaire; and ask them to report their harvest of those species. The resulting estimates of harvest per hunter are combined with the complete list of migratory bird hunters to provide estimates of the total harvest of those species.
The Parts Collection Survey estimates the species, sex, and age composition of the harvest, and the geographic and temporal distribution of the harvest. Randomly selected successful hunters who responded to the Migratory Bird Hunter Survey the previous year are asked to complete and return a postcard if they are willing to participate in the Parts Collection Survey. We provide postage-paid envelopes to respondents before the hunting season and ask them to send in a wing or the tail feathers from each duck, goose, or coot they harvest, or a wing from each woodcock, band-tailed pigeon, snipe, rail, or gallinule they harvest. We use the wings and tail feathers to identify the species, sex, and age of the harvested sample. We also ask respondents to report on the envelope the date and location of harvest for each bird. We combine the results of this survey with the harvest estimates obtained from the Migratory Bird Hunter Survey to provide species-specific national harvest estimates.
The combined results of these surveys enable us to evaluate the effects of season length, season dates, and bag limits on the harvest of each species, and thus help us determine appropriate hunting regulations.
The Sandhill Crane Harvest Survey is an annual questionnaire survey of people who obtained a sandhill crane hunting permit. At the end of the hunting season, we randomly select a sample of permit holders and ask them to report the date, location, and number of birds harvested for each of their sandhill crane hunts. Their responses provide estimates of the temporal and geographic distribution of the harvest as well as the average harvest per hunter, which, combined with the total number of permits issued, enables us to estimate the total harvest of sandhill cranes. Based on information from this survey, we adjust hunting regulations as needed to optimize harvest at levels that provide a maximum of hunting recreation while keeping the population at the desired level.
We are also seeking approval to add a mourning dove wing collection to the Parts Collection Survey on an experimental basis. We will use the wings to identify the age of each sample, thereby providing estimates of annual mourning dove productivity at the management unit level. Those estimates of annual productivity are needed to improve the mourning dove population models that we have developed for each management unit. We will compare the results and costs of our experimental mail survey with results and costs of mourning dove wing collection methods that are currently employed by some, but not all, States that have dove hunting seasons. If mourning dove productivity estimates are similar for the two methods, we would propose to adopt the more cost-effective method on a national scale.
We again invite comments concerning this information collection on:
(1) whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2) the accuracy of our estimate of the burden for this 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.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Fish and Wildlife Service, Interior.
Notice of teleconference.
We, the Fish and Wildlife Service (Service), announce a public teleconference of the Sport Fishing and Boating Partnership Council (Council).
We will hold the teleconference on Monday, December 17, 2007, 2-4 p.m. (Eastern time). If you wish to listen to the teleconference proceedings, submit written material for the Council to consider, or give a 2-minute presentation during the teleconference, notify Douglas Hobbs by Friday, December 7, 2007. If you wish to submit a written statement for Council consideration during the teleconference, we must receive it no later than December 13, 2007. See instructions under
Douglas Hobbs, Council Coordinator, 4401 N. Fairfax Dr., Mailstop 3103-AEA, Arlington, VA 22203; (703) 358-2336 (phone); (703) 358-2548 (fax), or
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we give notice that the Council will hold a teleconference on Monday, December 17, 2007, from 2 to 4 p.m.
The Council was formed in January 1993 to advise the Secretary of the Interior, through the Director of the U.S. Fish and Wildlife Service, on nationally significant recreational fishing, boating, and aquatic resource conservation issues. The Council represents the interests of the public and private sectors of the sport fishing, boating, and conservation communities and is organized to enhance partnerships among industry, constituency groups, and government. The 18-member Council, appointed by the Secretary of the Interior, includes the Service Director and the president of the Association of Fish and Wildlife Agencies, who both serve in ex officio capacities. Other Council members are directors from State agencies responsible for managing recreational fish and wildlife resources and individuals who represent the interests of saltwater and freshwater recreational fishing, recreational boating, the recreational fishing and boating industries, recreational fisheries resource conservation, Native American tribes, aquatic resource outreach and education, and tourism. Background information on the Council is available at
The Council will convene to: (1) Approve recommendations to the Director of the Fish and Wildlife Service for funding Fiscal Year 2008 Boating Infrastructure Grant proposals; and (2) to consider other Council business. We will post the final agenda on the Internet at
Whether you wish to comment orally or in written form, you must provide us with written copies of your comments. All written statements must be supplied to the Council Coordinator in
• One hard copy with original signature, and
• One electronic copy via e-mail (acceptable file format: Adobe Acrobat PDF, WordPerfect, MS Word, MS PowerPoint, or Rich Text files in IBM-PC/Windows 98/2000/XP format).
Individuals or groups may request to give an oral presentation during the Council teleconference. Oral presentations will be limited to 2 minutes per speaker, with no more than half an hour total for all speakers. Interested parties must contact Douglas Hobbs, Council Coordinator, in writing (preferably via e-mail; see
Speakers who wish to expand upon their oral statements or those who had wished to speak but could not be accommodated on the agenda are invited to submit written statements to the Council. Interested members of the public may submit relevant written information for the Council to consider during the public teleconference. We must receive all written statements by Thursday, December 13, 2007, so that we can make the information available to the Council for their consideration prior to the teleconference.
The Council Coordinator will maintain the teleconference's summary minutes, which will be available for public inspection at the location under
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) has examined and found suitable for classification for lease and subsequent conveyance under the provision of the Recreation and Public Purposes (R&PP) Act, as amended, 43 U.S.C. 869
Interested parties may submit comments regarding the proposed lease/conveyance or classification of the lands until January 14, 2008.
Mail written comments to Pagosa Springs Field Manager, Bureau of Land Management, P.O. Box 310, Pagosa Springs, Colorado 81147.
Charlie Higby, BLM Realty Specialist, 15 Burnett Court, Durango, Colorado 81301 or phone (970) 385-1374.
The following described public lands in Archuleta County, Colorado have been examined and found suitable for classification for lease and subsequent conveyance under the provisions of the Recreation and Public Purposes (R&PP) Act, as amended, 43 U.S.C. 869
1. A right-of-way thereon for ditches and canals constructed by the authority of the United States pursuant to the Act of August 30, 1890 (43 U.S.C. 945).
2. All mineral deposits in the lands shall be reserved to the United States together with the right to prospect for, mine and remove such deposits from the same under applicable law and such regulations as the Secretary of the Interior may prescribe, including all necessary access and exit rights.
3. All valid existing rights
4. A right-of-way, across the above described lands, for access road purposes granted to Williams Family Trust, its successors or assigns, by right-of-way COC-56189, pursuant to the Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761).
Only written comments submitted by postal service or overnight mail to the Field Manager, BLM Pagosa Springs Field Office, will be considered properly filed. Electronic mail, facsimile or telephone comments will not be considered properly filed. Documents related to this action are on file at the BLM Pagosa Springs Field Office at the address above and may be reviewed by the public at their request. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so. If you wish to have your name or address withheld from public disclosure under the Freedom of Information Act, you must state it prominently at the beginning of your comments. Any determination by the BLM to release or withhold the names and/or addresses of those who comment will be made on a case-by-case basis. Such requests will be honored to the extent allowed by law. BLM will make available for public review, in their entirety, all comments submitted by businesses or organizations, including comments by individuals in their capacity as an official or representative of an organization or business.
43 Code of Federal Regulations (CFR) 2741.5.
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321
The BLM Planning Regulations set forth the provisions applicable to protests (43 CFR 1610.5-2). A person who meets the conditions as described in the regulations cited above, and who wishes to file a protest must file said protest within 30 days of the date this notice is published in the
For further information and/or to have your name added to the mailing list, contact
The Ely RMP planning area is located in east-central Nevada in Lincoln, White Pine and a portion of Nye counties. The planning area addressed in the RMP/EIS contains approximately 11,500,000 acres of public lands administered by the BLM Ely Field Office and the Caliente Field Station. The PRMP/FEIS focuses on the principles of multiple use and sustained yield as prescribed by section 202 of the FLPMA. The following entities participated in development of the RMP as cooperating agencies with special expertise: Great Basin National Park; Humboldt-Toiyabe National Forest; Nellis Air Force Base; Nevada Department of Transportation; Nevada Division of Minerals; Nevada Department of Wildlife; Nevada State Historic Preservation Office; Lincoln County; Nye County; White Pine County; Duckwater Shoshone Tribe; Ely Shoshone Tribe; Moapa Band of Paiutes; and the Yomba Shoshone Tribe.
The public involvement and collaboration process implemented for this effort included six open houses during scoping; presentations to interested organizations upon their invitation; presentations to and suggestions from the Mojave/Southern Great Basin and the Northeastern Great Basin resource advisory councils; distribution of information via the Ely RMP website and periodic newsletters; six public meetings on the Draft RMP/EIS; and public and agency review and comment on the Draft RMP/EIS. A copy of the PRMP/FEIS will be sent to individuals, groups, and agencies who requested a copy, or as required by regulation or policy.
The PRMP/FEIS considers and analyzes five (5) alternatives, including the BLM's Proposed RMP, the No Action Alternative (continuation of existing management), and alternatives that emphasize restoration of ecological systems, commodity production, and exclusion of permitted discretionary uses. These alternatives were developed based on public input including public scoping comments; numerous meetings with local, county, state, tribal, and federal agencies (cooperating agencies); informal meetings with interested organizations upon their request; and public and agency comments on the Draft RMP/EIS. The alternatives provide for an array of alternative land use allocations and variable levels of commodity production and resource protection and restoration. After any protests are resolved and any pertinent adjustments are made, an approved RMP and Record of Decision are expected to be available by the end of 2007.
The issues addressed in the formulation of alternatives include maintenance and restoration of resiliency of vegetation within the Great Basin and Mojave Desert, protection and management of habitats for special status species, upland and riparian habitat management, noxious weed control, commercial uses (including livestock grazing, special recreation permits, mineral development, oil and gas leasing, rights-of-way, and communication use areas), designation of areas of critical environmental concern (ACECs), travel management, land disposal, and management of wild horses.
The Proposed RMP would retain three existing ACECs: Beaver Dam Slope ACEC (36,800 acres), Kane Springs ACEC (61,680 acres), Mormon Mesa ACEC (109,680 acres) and would designate 17 new ACECs (114,270 acres) for a total of 322,430 acres, which is less than 3 percent of the planning area. The new ACECs include:
Baker Archaeological Site ACEC (80 acres).
Baking Powder Flat ACEC (13,640).
Blue Mass Scenic Area ACEC (950 acres).
Condor Canyon ACEC (4,500 acres).
Hendry's Creek/Rock Animal Corral ACEC (3,650 acres).
Highland Range ACEC (6,900 acres).
Honeymoon Hills/City of Rocks ACEC (3,900 acres).
Lower Meadow Valley Wash ACEC (25,000 acres).
Mount Irish ACEC (15,100 acres).
Pahroc Rock Art ACEC (2,400 acres).
Rose Guano Bat Cave ACEC (40 acres).
Schlesser Pincushion ACEC (4,930 acres).
Shooting Gallery ACEC (15,600 acres).
Shoshone Ponds ACEC (1,240 acres).
Snake Creek Indian Burial Cave ACEC (40 acres).
Swamp Cedar ACEC (3,200 acres).
White River Valley ACEC (13,100 acres).
The following types of resource use limitations would generally apply to these ACECs: (1) Motorized travel would be limited to designated roads and trails; (2) limited collection of plants in ACECs designated for the protection of special status plants; (3) limitations on livestock grazing in ACECs designated for protection of special status plants and animals; (4) limits on land disposal and rights-of-way; and (5) closure or limits on new mineral development (mineral leasing, locatable minerals and mineral material disposal) to protect unique cultural values, special status plants and animals. For detailed information, see Section 2.4.22 of the PRMP/FEIS.
Documents pertinent to the PRMP/FEIS will be available for public review at the Ely Field Office, 702 North Industrial Way, Ely, Nevada during regular business hours, 7:30 a.m. to 4:30 p.m., Monday through Friday, except holidays. Review copies of the PRMP/FEIS are available at the following locations in and near the planning area:
BLM Caliente Field Station.
BLM Elko Field Office.
BLM Ely Field Office.
BLM Las Vegas Field Office.
BLM Nevada State Office.
Forest Service Ely Ranger District.
Great Basin National Park.
Lincoln County Courthouse.
Lincoln County Public Library.
Nye County Courthouse.
Nye County Public Library.
White Pine County Courthouse.
White Pine County Public Library.
The PRMP/FEIS may also be viewed and downloaded in PDF format at the Ely RMP Web site at
As noted above, instructions for filing a protest with the Director of the BLM regarding the PRMP/FEIS may be found at 43 CFR 1610.5-2. Electronic mail and facsimile protests will be considered only if the protesting party provides BLM with the original letter by either regular or overnight mail postmarked by the close of the protest period. Under those conditions, the BLM will consider the electronic or facsimile version as an advance copy and it will receive full consideration. If you wish to provide the BLM with such advance notification, please direct faxed protests to the attention of the BLM protest coordinator at (202) 452-5112, and e-mails to
As provided in 43 CFR 1610.5-2(a)(3), “The Director shall promptly render a decision on the protest. The decision shall be in writing and shall set forth the reasons for the decision. The decision shall be sent to the protesting party by certified mail, return receipt requested. The decision of the Director shall be the final decision of the Department of the Interior.”
Department of Interior, National Park Service.
Notice and request for comments.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507 et seq.) and 5 CFR Part 1320, Reporting and Recordkeeping Requirements, the National Park Service (NPS) invites public comments on a revision of a currently approved collection (OMB 1024-0038).
Public comments on this Information Collection Request (ICR) will be accepted on or before December 31, 2007.
You may submit comments directly to the Desk Officer for the Department of the Interior (OMB #1024-0038), Office of Information and Regulatory Affairs, OMB, by fax at 202/395-6566, or by electronic mail at
John W. Renaud, Project coordinator, Historic Preservation Grants, Heritage Assistance Programs, NPS, 1849 C St., NW. (2256), Washington, DC 20240; or via fax at 202/371-1961; or via e-mail at
This request includes information collections related to HPF grants to States and to Tribal Historic Preservation Officers/Offices (THPOs). NPS is seeking the revision to reflect the increased number of partners participating in the NHPP and consequently in the previously approved information collections. In addition, a revision is needed because some information collections had not been recognized as such during preparation for earlier OMB approvals. Section 101(b) of the National Historic Preservation Act, as amended, (16 U.S.C. 470a(b)) specifies the role of States in the NHPP program. Section 101(c), section 103(c), and section 301 of the Act (16 U.S.C. 470a(c), 16 U.S.C. 470c(c), and 16 U.S.C. 470w) specify the role of local governments in the NHPP program. Section 101(d) of the Act (16 U.S.C. 470a(d)) specifies the role of tribes in the NHPP program. Section 108 of the Act (16 U.S.C. 470h) created the HPF to support activities that carry out the purposes of the Act. Section 101(e)(1) of the Act (16 U.S.C. 470a(e)) directs the Secretary of the Interior through the NPS to “administer a program of matching grants to the States for the purposes of carrying out” the Act. Similarly, sections 101(d) and 101(e) of the Act direct a program of grants to THPOs for carrying out their responsibilities under the Act. Each year Congress directs NPS to use part of the annual appropriation from the HPF for the State grant program and the tribal grant program. The purpose of both the HPF State grants program and the HPF THPO grants program is to assist States and tribes in carrying out their statutory role in the national historic preservation program. HPF grants to States and THPOs are program grants; i.e., each State/THPO selects its own HPF-eligible activities and projects. Each HPF grant to a State/THPO has two years of fund availability. At the end of the first year, NPS employs a “Use or Lose” policy to ensure efficient and effective use of the grant funds. All 59 States, territories, and the District of Columbia participate in the NHPP program. Almost 1,600 local governments have become Certified Local Governments (CLGs) in order to participate in the NHPP program. Approximately 54 local governments become CLGs each year. Fifty-seven federally-recognized tribes have joined formally the NHPP and have established Tribal Historic Preservation Officers and tribal historic preservation offices. Typically, each year five to seven tribes join the partnership. NPS developed the information collections associated with 36 CFR Part 61 in consultation with State, Tribal, and local government partners. The obligation to respond is required to provide information to
Comments are invited on: (1) Practical utility of the information being gathered; (2) the accuracy of the burden hour estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden to respondents, including use of automated information collection techniques or other forms of information technology. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information, we cannot guarantee that we will be able to do so.
Bureau of Reclamation, Interior.
Notice.
Notice is hereby given of contractual actions that have been proposed to the Bureau of Reclamation (Reclamation) and are new, modified, discontinued, or completed since the last publication of this notice on August 22, 2007. This notice is one of a variety of means used to inform the public about proposed contractual actions for capital recovery and management of project resources and facilities consistent with section 9(f) of the Reclamation Project Act of 1939. Additional announcements of individual contract actions may be published in the
The identity of the approving officer and other information pertaining to a specific contract proposal may be obtained by calling or writing the appropriate regional office at the address and telephone number given for each region in the
Sandra L. Simons, Manager, Contract Services Office, Bureau of Reclamation, P.O. Box 25007, Denver, Colorado 80225-0007; telephone 303-445-2902.
Consistent with section 9(f) of the Reclamation Project Act of 1939 and the rules and regulations published in 52 FR 11954, April 13, 1987 (43 CFR 426.22), Reclamation will publish notice of proposed or amendatory contract actions for any contract for the delivery of project water for authorized uses in newspapers of general circulation in the affected area at least 60 days prior to contract execution. Announcements may be in the form of news releases, legal notices, official letters, memorandums, or other forms of written material. Meetings, workshops, and/or hearings may also be used, as appropriate, to provide local publicity. The public participation procedures do not apply to proposed contracts for the sale of surplus or interim irrigation water for a term of 1 year or less. Either of the contracting parties may invite the public to observe contract proceedings. All public participation procedures will be coordinated with those involved in complying with the National Environmental Policy Act. Pursuant to the “Final Revised Public Participation Procedures” for water resource-related contract negotiations, published in 47 FR 7763, February 22, 1982, a tabulation is provided of all proposed contractual actions in each of the five Reclamation regions. When contract negotiations are completed, and prior to execution, each proposed contract form must be approved by the Secretary of the Interior, or pursuant to delegated or redelegated authority, the Commissioner of Reclamation or one of the regional directors. In some instances, congressional review and approval of a report, water rate, or other terms and conditions of the contract may be involved.
Public participation in and receipt of comments on contract proposals will be facilitated by adherence to the following procedures:
1. Only persons authorized to act on behalf of the contracting entities may negotiate the terms and conditions of a specific contract proposal.
2. Advance notice of meetings or hearings will be furnished to those parties that have made a timely written request for such notice to the appropriate regional or project office of Reclamation.
3. Written correspondence regarding proposed contracts may be made available to the general public pursuant to the terms and procedures of the Freedom of Information Act, as amended.
4. Written comments on a proposed contract or contract action must be submitted to the appropriate regional officials at the locations and within the time limits set forth in the advance public notices.
5. All written comments received and testimony presented at any public hearing will be reviewed and summarized by the appropriate regional office for use by the contract approving authority.
6. Copies of specific proposed contracts may be obtained from the appropriate regional director or his designated public contact as they become available for review and comment.
7. In the event modifications are made in the form of a proposed contract, the appropriate regional director shall determine whether republication of the notice and/or extension of the comment period is necessary.
Factors considered in making such a determination shall include, but are not limited to (i) the significance of the modification, and (ii) the degree of public interest which has been expressed over the course of the negotiations. At a minimum, the regional director shall furnish revised contracts to all parties who requested the contract in response to the initial public notice.
15. Six irrigation districts of the Arrowrock Division, Boise Project, Idaho: Repayment agreements with districts with spaceholder contracts for repayment, per legislation, of reimbursable share of costs to rehabilitate Arrowrock Dam Outlet Gates under the O&M program. Five letter agreements have been executed.
7. Trendwest Resorts, Yakima Project, Washington: Long-term water exchange contract for assignment of Teanaway River and Big Creek water rights to Reclamation for instream flow use in exchange for annual use of up to 3,500 acre-feet of water from Cle Elum Reservoir for a proposed resort development.
46.
47.
48.
49.
50.
51.
52.
53.
17.
34.
15. Jessen Family Limited Partnership (now JRJ Partners, LLC), BCP, Arizona: Contract for delivery of 1,080 acre-feet of Colorado River water for agricultural purposes. Contract was executed on September 27, 2007.
1.(f)
36.
37.
1.(e)
22.
30.
1.(d)
28.
33.
34.
57.
12.
27.
56.
50.
5.
6.
10.
17.
United States Section, International Boundary and Water Commission, United States and Mexico.
Notice of Availability of Final Environmental Assessment (EA) and Final Finding of No Significant Impact (FONSI).
Pursuant to Section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, the Council on Environmental Quality Final Regulations (40 CFR parts 1500 through 1508), and the United States Section, International Boundary and Water Commission's (USIBWC) Operational Procedures for Implementing Section 102 of NEPA, published in the
Daniel Borunda, Environmental Protection Specialist, Environmental Management Division, United States Section, International Boundary and Water Commission; 4171 N. Mesa, C-100; El Paso, Texas 79902. Telephone: (915) 832-4767; e-mail:
The Final EA and FONSI will be available November 30, 2007.
The USIBWC is authorized to construct, operate, and maintain any project or works projected by the United States of America on the Lower Rio Grande Flood Control Project (LRGFCP), as authorized by the Act of the 74th Congress, Sess. I Ch. 561 (H.R. 6453), approved August 19, 1935 (49 Stat. 660), and codified at 22 U.S.C. Section 277, 277a, 277b, 277c, and Acts amendatory thereof and supplementary thereto. The LRGFCP was constructed to protect urban, suburban, and highly developed irrigated farmland along the Rio Grande delta in the United States and Mexico.
The USIBWC, in cooperation with the Texas Parks and Wildlife Department, prepared this EA for the proposed action to improve flood control along sections of the Main and North Floodways Levee System located in Hidalgo, Cameron, and Willacy Counties, Texas. This levee system is part of the LRGFCP that extends approximately 180 miles from the Town of Peñitas in south Texas to the Gulf of Mexico. The Main and North Floodway Levee system extends approximately 75 levee miles, downstream from Anzalduas Dam, and extending near the town of Mercedes to the Laguna Madre northwest of Arroyo City, Texas.
The Proposed Action would increase the flood containment capacity of the Main and North Floodways Levee System by raising the elevation of a number of levee segments for improved flood protection. Fill material would be added to the existing levee to bring height to its original design specifications, or to meet a 2 feet freeboard design criterion. Typical height increases in improvement areas would be less than 1 foot and would not require expansion of the existing levee footprint.
In some locations, up to 2 feet of fill material would be placed on top of the
Pursuant to NEPA guidance (40 Code of Federal Regulations 1500-1508), the President's Council on Environmental Quality issued regulations for NEPA implementation which included provisions for both the content and procedural aspects of the required Environmental Assessment. The USIBWC completed an EA of the potential environmental consequences of raising the Main and North Floodways Levee System to meet current requirements for flood control. The EA, which supports this Finding of No Significant Impact, evaluated the Proposed Action and No Action Alternative.
The No Action Alternative was evaluated as the single alternative action to the Proposed Action. The No Action Alternative would retain the current configuration of the Main and North Floodways Levee System, with no impacts to biological and cultural resources, land use, community resources, or environmental health issues. In terms of flood protection, however, current containment capacity under the No Action Alternative may be insufficient to fully control Rio Grande flooding under severe storm events, with associated risks to personal safety and property.
Improvements to the levee system require placement of fill material that would affect grassed areas at levee footprint expansion locations. All expansion would take place along the current levee service corridor, limiting vegetation removal to invasive-species grasslands; this grass cover is expected to be rapidly re-established after project completion.
No significant effects are anticipated on wildlife habitat in the vicinity of the levee system, including potential habitat for threatened and endangered species. While approximately 17 percent of levee system is adjacent to natural resources conservation areas, only a small fraction would fall within levee improvement areas. In areas requiring levee footprint expansion, no woodland communities would be impacted; impacts on vegetation would be limited to non-native grasslands along the levee, of very limited value as wildlife habitat. No wetlands are located within the potential levee expansion area.
Improvements to the Main and North Floodways Levee System are not expected to adversely affect known archaeological or historical resources. Typically, placement of fill material over the existing levee would not expand the levee footprint; when levee footprint expansion is needed, expansion would take place within the service corridor currently used for levee maintenance. High-Probability Areas (HPAs) identified along the levee system would be located outside the improvement areas, with minor exceptions. In areas where HPAs are located near improvement areas, the need for footprint expansion would be eliminated by adjusting levee slope to retain current location of the toe of the levee.
Cultural resources located in the general vicinity of the levee system include historic age structures. Potential historic-age resources near the levee system would not be affected because most of those resources are located outside of the floodway, and away from potential levee footprint expansion areas. Only irrigation canals and minor irrigation structures, such as weir gates and standpipes, are located within or near the levee service corridor where footprint expansion would take place; irrigation canals and nearly all irrigation structures would be retained in their current condition.
Improvements to the levee system would increase flood containment capacity to control the design flood event with a negligible increase in water surface elevation. Levee footprint expansion would not affect water resources.
Footprint levee expansion, where required, would take place completely within the existing floodway and along the levee service corridor. No urban or agricultural lands would be affected. Impacts to natural resources conservation areas would be limited to grassland areas.
In terms of socioeconomic resources, the influx of federal funds into Hidalgo, Cameron, and Willacy Counties from the levee improvement project would have a positive but minor local economic impact. The impact would be limited to the construction period, and represent less than 1 percent of the annual county employment, income and sales values. No adverse impacts to disproportionately high minority and low-income populations were identified for construction activities. A moderate increase in utilization of public roads would be required during construction; a temporary increase in access road use would be required for equipment mobilization to staging areas.
Estimated air emissions of five criteria pollutants during construction represent less than 1.1 percent of the annual emissions inventory of Hidalgo, Cameron, and Willacy Counties. There would be a moderate increase in ambient noise levels due to construction activities. No long-term and regular exposure is expected above noise threshold values. A database search indicated that no waste storage and disposal sites were within the proposed Main and North Floodway Levee Project area, and none would affect, or be affected, by the levee improvement project.
When warranted due to engineering considerations, or for protection of biological or cultural resources, the need for levee footprint expansion would be eliminated by levee slope adjustment. Best management practices during construction would include development of a storm water pollution prevention plan to avoid impacts to receiving waters, and use of sediment barriers and soil wetting to minimize erosion and dust.
To protect vegetation cover, both the modified levee and construction corridor would be re-vegetated with native herbaceous species. To protect wildlife, construction activities would be scheduled to occur, to the extent possible, outside the March to August bird migratory season.
Single hard copies of the Final Environmental Assessment and Finding of No Significant Impact may be
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On September 28, 2007, a petition was filed with the Commission and Commerce by DuPont Teijin Films, Hopewell, VA; Mitsubishi Polyester Film of America, Greer, SC; SKC America, Inc., Covington, GA; and Toray Plastics (America), Inc., North Kingston, RI, alleging that an industry in the United States is materially injured and threatened with further material injury by reason of LTFV imports of polyethylene terephthalate film, sheet, and strip from Brazil, China, Thailand, and the United Arab Emirates. Accordingly, effective September 28, 2007, the Commission instituted antidumping duty investigation Nos. 731-TA-1131-1134 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on November 13, 2007. The views of the Commission are contained in USITC Publication 3962 (November 2007), entitled
By order of the Commission.
United States International Trade Commission.
Institution of investigation and scheduling of hearing.
Following receipt on October 23, 2007, of a request from the United States Trade Representative (USTR) under section 332(g) of the Tariff Act of 1930 (19 U.S.C. 1332(g)), the Commission instituted investigation No. 332-494,
All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street, SW., Washington, DC. All written submissions, including requests to appear at the hearing, should be addressed to the Secretary, United States International Trade Commission, 500 E Street, SW., Washington, DC 20436.
Project leader Mark Simone (202-205-2049 or
To assist USTR in preparing for these negotiations, the USTR requested, under authority delegated by the President and pursuant to section 332(g) of the Tariff Act of 1930, that the Commission initiate an investigation and prepare a report that provides advice as to the probable economic effect on both the U.S. and Israeli agricultural industries, respectively, if U.S.-Israel agricultural trade was conducted in a free trade environment. The USTR asked that the Commission, to the extent practicable, include the following in its report:
• Advice at the industry level that focuses on the main products traded or likely to be traded between the United States and Israel. The USTR asked that the Commission, in preparing its advice, assume that the new ATAP would include elimination of tariffs and tariff-rate quotas (TRQs) on all agricultural products so as to calculate its maximum potential impact. The USTR asked that the Commission seek to measure these effects, to the extent data permit, through the use of partial equilibrium analysis or other quantitative methods.
• A list of the principal existing Israeli non-tariff barriers to agricultural trade, whether or not justified (such as technical barriers to trade, sanitary and phytosanitary measures, and TRQ administration) and information on TRQ fill rates, compiled from publicly available sources, and an analysis of their impact on U.S. agricultural exports to Israel.
• A description of Israeli agricultural trade, covering the major products and trading partners during 2002-2006, focusing on the countries and regions that have free trade agreements in effect with Israel.
• A description of the Israeli agricultural sector compiled from publicly available sources, including, to the extent possible, regional production and employment patterns, and principal factors affecting the competitiveness of the Israeli agricultural sector in domestic and international markets.
As requested by the USTR, the Commission expects to deliver its report by April 23, 2008. The USTR indicated that portions of the report will be classified as confidential.
The Commission may include some or all of the confidential business information submitted in the course of this investigation in the report it sends to the USTR. If the Commission publishes a public version of the report, the published version will not include portions of the report that the USTR has classified as confidential and will also not include any confidential business information.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 5) granting respondent's motion to terminate the investigation due to a pending arbitration.
Clint Gerdine, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-2310. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on September 21, 2007, based on a complaint filed by Nokia Inc. of Irving, Texas and Nokia Corporation of Espoo, Finland (collectively “Nokia”). 72 FR 54069. The complaint, as supplemented, alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain wireless communication chips and chipsets, and products containing same, including wireless handsets and network interface cards, by reason of infringement of certain claims of U.S. Patent Nos. 7,236,761; 6,714,091; 6,292,474; 5,896,562; and 5,752,172. The complaint further alleges the existence of a domestic industry. The Commission's notice of investigation named QUALCOMM, Inc. (“Qualcomm”) of San Diego, California as the respondent.
On October 18, 2007, the ALJ issued an ID (Order No. 5) granting respondent's motion to terminate the investigation due to a pending arbitration. On October 25, 2007, Nokia filed a petition for review of the ALJ's ID. On November 1, 2007, Qualcomm and the Commission investigative attorney filed briefs in opposition to Nokia's petition for review. The Commission has determined not to review the subject ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.21(a)(2) and 210.42(h) of the Commission's Rules of Practice and Procedure, 19 CFR 210.21(a)(2), 210.42(h).
By order of the Commission.
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this section to a bulk manufacturer of a controlled substance in schedule I or II and prior to issuing a registration under 21 U.S.C. 952(a)(2) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with title 21 Code of Federal Regulations (CFR), 1301.34(a), this is notice that on May 8, 2007, American Custom Chemicals Corporation, 6650 Lusk Boulevard, Suite B102, San Diego, California 92121, made application to the Drug Enforcement Administration (DEA) to be registered as an importer of Sufentanil (9740), a basic class of controlled substance listed in schedule II.
The company plans to import the listed controlled substance for research purposes only.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic class of controlled substance may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control,
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice published in the
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this section to a bulk manufacturer of a controlled substance in schedule I or II and prior to issuing a registration under 21 U.S.C. 952(a)(2) authorizing the importation of
Therefore, in accordance with Title 21 Code of Federal Regulations (CFR), 1301.34(a), this is notice that on August 16, 2007, Clinical Supplies Management, Inc., 4733 Amber Valley Parkway, Fargo, North Dakota 58104, made application to the Drug Enforcement Administration (DEA) to be registered as an importer of the basic classes of controlled substances listed in schedule I and II:
The company plans to import the listed controlled substances for clinical trials, research, analytical purposes, and distribution to its customers.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic class of controlled substance may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, VA 22152; and must be filed no later than December 31, 2007.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in schedule I or II and prior to issuing a registration under 21 U.S.C. 952(a)(2) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with Title 21 Code of Federal Regulations (CFR), 1301.34(a), this is notice that on October 12, 2007, Lipomed Inc., One Broadway, Cambridge, Massachusetts 02142, made application to the Drug Enforcement Administration (DEA) to be registered as an importer of the basic classes of controlled substances listed in schedule I:
The company plans to import the listed controlled substances for clinical trials, research, analytical purposes, and distribution to its customers.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic classes of controlled substances may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, VA. 22152; and must be filed no later than December 31, 2007.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on November 1, 2007, Norac Inc., 405 S. Motor Avenue, P.O. Box 577, Azusa, California 91702-3232, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of Tetrahydrocannabinols (7370), a basic class of controlled substance listed in schedule I.
The company plans to manufacture the listed controlled substance in bulk for formulation into the pharmaceutical controlled substance Marinol®.
Any other such applicant and any person who is presently registered with DEA to manufacture such substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administrator, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to
Office of Justice Programs (OJP), Justice.
Notice of meeting.
This is an announcement of a meeting of the Public Safety Officer Medal of Valor Review Board to review applications for the 2006-2007 Medal of Valor Awards and to discuss upcoming activities. Due to the late scheduling of this meeting, publication 15 days prior to the meeting was not possible. This notice will be published less than 15 days prior to the meeting pursuant to 41 CFR 102-3.105(b). The meeting time and location are located below.
December 13, 2007, 10 a.m. to 3 p.m.
The meeting will take place at the Office of Justice Programs, 810 7th Street, NW., Washington, DC 20531.
Greg Joy, Policy Advisor, Bureau of Justice Assistance, Office of Justice Programs, 810 7th Street, NW., Washington, DC 20531, by telephone at (202) 514-1369, toll free (866) 859-2687, or by e-mail at
The Public Safety Officer Medal of Valor Review Board carries out those advisory functions specified in 42 U.S.C. 15202. Pursuant to 42 U.S.C. 15201, the President of the United States is authorized to award the Public Safety Officer Medal of Valor, the highest national award for valor by a public safety officer. The purpose of this meeting is to review applications for the 2006-2007 Public Safety Officer Medal of Valor Awards and to discuss upcoming activities related thereto.
This meeting will be open to the public. For security purposes, members of the public who wish to attend must register at least five (5) days in advance of the meeting by contacting Mr. Joy. All attendees will be required to sign in at the front desk.
Access to the meeting will not be allowed without prior registration. Anyone requiring special accommodations should contact Mr. Joy at least five (5) days in advance of the meeting.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Civil Rights Center within the Office of the Assistant Secretary for Administration and Management is soliciting comments concerning the proposed extension of the collection of the Compliance Information Report—29 CFR part 31 (Title VI of the Civil Rights Act), Nondiscrimination—Disability—29 CFR part 32 (section 504 of the Rehabilitation Act), and Nondiscrimination—Workforce Investment Act—29 CFR part 37 (section 188 of the Workforce Investment Act). A copy of the proposed information collection request (ICR) can be obtained by contacting the office listed below in the addresses section of this notice. In addition, a copy of the ICR in alternate formats of large print and electronic file on computer disk are available upon request.
Written comments must be submitted to the office listed in the addresses section below on or before January 30, 2008.
Comments should be sent to Annabelle T. Lockhart, Director of the Civil Rights Center. Electronic mail is the preferred method of submittal of comments. Comments by electronic mail must be clearly identified as pertaining to the ICR and sent to
Receipt of submissions, whether by U.S. Postal Service, e-mail, fax transmittal, or other means will not be acknowledged; however, the sender may request confirmation that a submission has been received, by telephoning the Civil Rights Center at the telephone numbers listed below.
Comments received will be available for public inspection during normal business hours at the above address. Persons who need assistance to review the comments will be provided with appropriate aids such as readers or print magnifiers. Copies of the ICR will be made available, upon request, in large print or electronic file on computer disk. Provision of the rule in other formats will be considered upon request. To schedule an appointment to review the comments and/or obtain the ICR in an alternate format contact the Civil Rights Center at (202) 693-6500 (Voice) or (202) 693-6515/16 (TTY). Please note that these are not toll free telephone numbers.
Julia Tamakloe-Mankata, Civil Rights Center, (202) 693-6519 (Voice) or (202) 693-6515/16 (TTY). Please note that these are not toll free telephone numbers.
The Compliance Information Report and its information collection is designed to ensure that programs or activities funded in whole or in part by
The Department of Labor is particularly interested in comments which:
• 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 a practical utility;
• 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;
• Enhance the quality, utility, and clarity of the information to be collected; and
• 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, e.g., permitting electronic submissions of responses.
The Department of Labor seeks an extension of the current OMB approval of the paperwork requirements in the Compliance Information Report. Extension is necessary to ensure nondiscrimination in programs or activities funded in whole or in part by the Department of Labor.
Comments submitted in response to this comment request will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Board announces the following meeting:
Nuclear Regulatory Commission.
Issuance of Environmental Assessment and Finding of No Significant Impact for License Amendment.
Betsy Ullrich, Senior Health Physicist, Commercial and R&D Branch, Division of Nuclear Materials Safety, Region I, 475 Allendale Road, King of Prussia, Pennsylvania 19406; telephone (610) 337-5040; fax number (610) 337-5269; or by e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to Source Materials License No. STC-133. This license is held by Defense Logistics Agency (the Licensee), and covers several sites around the country. The proposed action pertains to the Licensee's Hammond Depot site (the Facility), located at 3200 S. Sheffield Avenue, in Hammond, Indiana. Issuance of the amendment would incorporate the Decommissioning Plan (DP) into the license to allow completion of decommissioning activities at the site and eventual unrestricted release of the Facility. The NRC has evaluated and approved the Licensee's DP. The findings of this evaluation are documented in a Safety Evaluation Report which will be issued along with the amendment. The Licensee requested this action in a letter dated December 8, 2005. The Licensee's amendment request was noted in the
The proposed action would approve the Licensee's December 8, 2005, license amendment request to incorporate the DP into the license, resulting in final decommissioning of the Facility and subsequent release of the Facility for unrestricted use. License No. STC-133 was issued on February 14, 1957, pursuant to 10 CFR part 40, and has been amended periodically since that time. This license authorized the Licensee to possess uranium and thorium as natural uranium and thorium mixtures as ores, concentrates and solids for the purpose of storage, sampling, repackaging and transfer for the activities of the National Defense Stockpile.
The Facility is situated on approximately 57 acres in an industrial/commercial area. The Facility consists of eight buildings of which three warehouses were used to store drums of licensed materials, several pads and ground areas where non-radioactive ore piles were stored, and unused grassy areas, wetlands and an adjacent lake. A number of paved and dirt roads, along with railroad tracks, traverse the site. Within the Facility, use of licensed materials was confined to Warehouse 100W, Warehouse 100E, Warehouse 200E and its outdoor re-packaging area, and the burn cage. Licensed activities ceased in August 2005.
The proposed action is to approve the DP so that the Licensee may complete Facility decommissioning activities. Completion of the decommissioning activities will reduce residual radioactivity at the Facility. NRC regulations require licensees to begin timely decommissioning of their sites, or any separate buildings that contain residual radioactivity, upon cessation of licensed activities, in accordance with 10 CFR 40.42(d). The proposed licensing action will support such a goal. NRC is fulfilling its responsibilities under the Atomic Energy Act to make a decision on a proposed license amendment for decommissioning that ensures protection of the public health and safety.
The historical review of licensed activities conducted at the Facility shows that such activities involved the storage, repackaging and transfer of licensed material in the form of thorium nitrate, monazite sand and other ores containing source material. The licensed materials were always stored inside buildings, but were moved to other buildings and/or on and off the Facility, which resulted in some licensed materials being spilled outdoors.
The NRC staff has reviewed the Licensee amendment request for the Facility and examined the impacts of this license amendment request. Potential impacts include water resource impact (e.g., water may be used for dust control), air quality impacts from dust emissions, temporary local traffic impacts resulting from transporting debris, human health impacts, noise impacts from equipment operation, scenic quality impacts, and waste management impacts.
Based on its review, the staff has determined that no surface water or ground water impacts are expected from the decommissioning activities. Additionally, the staff has determined that significant air quality, noise, land use, and off-site radiation exposure impacts are also not expected. No significant air quality impacts are anticipated because of the contamination controls that will be implemented by the Licensee during decommissioning activities. In addition, the environmental impacts associated with the decommissioning activities are bounded by impacts evaluated by NUREG-0586, “Final Generic Environmental Impact Statement on the Decommissioning of Nuclear Facilities,” (GEIS). Generic impacts for this type of decommissioning process were previously evaluated and described in the GEIS, which concludes that the environmental consequences are small. The risk to human health from the transportation of all radioactive material in the U.S. was evaluated in NUREG-0170, “Final Environmental Statement on the Transportation of Radioactive Materials by Air and Other Modes.” The principal radiological environmental impact during normal transportation is direct radiation exposure to nearby persons from radioactive material in the package. The average annual individual dose from all radioactive material transportation in the U.S. was calculated to be approximately 0.5 mrem, well below the 10 CFR 20.1301 limit of 100 mrem for a member of the public. Additionally, the Licensee estimates that approximately 270 cubic meters of low-contaminated demolition material waste and 1,120 cubic meters of low-contaminated soil will leave the site over the course of the decommissioning project. The waste will be transported from the Facility by rail car to its final destination. This proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types of any effluents that may be released off-site, and there is no significant increase in occupational or public radiation exposure. Thus, waste management and transportation impacts from the decommissioning will not be significant.
Occupational health was also considered in the “Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes.” Shipment of these materials would not affect the assessment of environmental impacts or the conclusions in the “Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes.”
The staff also finds that the proposed license amendment will meet the radiological criteria for unrestricted release as specified in 10 CFR 20.1402. The Licensee demonstrated this through the development of derived concentration guideline limits (DCGLs) for its Facility. The Licensee conducted site specific dose modeling using parameters specific to the Facility that adequately bounded the potential dose. This included dose modeling for two scenarios: Building surfaces and soil. The building surface dose model was based on the warehouse worker scenario and the soil dose modeling was based on a resident farmer scenario.
The Licensee will maintain an appropriate level of radiation protection staff, procedures, and capabilities, and, through its Radiation Safety Officer, will implement an acceptable program to keep exposure to radioactive materials as low as reasonably achievable (ALARA). Work activities are not anticipated to result in radiation exposures to the public in excess of 10 percent of the 10 CFR 20.1301 limits.
The NRC also evaluated whether cumulative environmental impacts could result from an incremental impact of the proposed action when added to other past, present, or reasonably foreseeable future actions in the area. The proposed NRC approval of the license amendment request, when combined with known effects on resource areas at the site, including further site remediation, are not
The only alternative to the proposed action of decommissioning the Facility is the no-action alternative, under which the staff would leave things as they are by simply denying the amendment request. This no-action alternative is not feasible because it conflicts with 10 CFR 40.42(d) requiring that decommissioning of source material facilities be completed and approved by the NRC after licensed activities cease. The no-action alternative would keep radioactive material on-site without disposal. Additionally, denying the amendment request would result in no change in current environmental impacts. The environmental impacts of the proposed action and the no-action alternative are therefore similar, and the no-action alternative is accordingly not further considered.
The NRC staff has concluded that the proposed action is consistent with NRC guidance and regulations. Because the proposed action will not significantly impact the quality of the human environment, the NRC staff concludes that the proposed action is the preferred alternative.
NRC provided a draft of this Environmental Assessment to the State of Indiana, Department of the Environment for review on June 26, 2007. On November 2, 2007, Indiana State Department of Health, Radiological Emergency Response Program, responded by e-mail. The State agreed with the conclusions of the EA and otherwise had no comments.
The NRC staff has prepared this EA in support of the proposed action. On the basis of this EA, the NRC finds that there are no significant environmental impacts from the proposed action, and that preparation of an environmental impact statement is not warranted. Accordingly, the NRC has determined that a Finding of No Significant Impact is appropriate.
Documents related to this action, including the application for license amendment and supporting documentation, are available electronically at the NRC's Electronic Reading Room at
1. NUREG-1757, “Consolidated NMSS Decommissioning Guidance;”
2. Title 10 Code of Federal Regulations, Part 20, Subpart E, “Radiological Criteria for License Termination;”
3. Title 10, Code of Federal Regulations, Part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions;”
4. NUREG-1496, “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities”
5. Letter dated December 8, 2005 (ML053500252)
6. Historical Site Assessment (ML060580605)
7. Preliminary Site Specific Derived Concentration Guidelines (ML060580629)
8. Radiological Scoping Survey (ML060580608)
9. Environmental Assessment, Disposition of Thorium Nitrate (ML060580592)
10. Letter dated July 5, 2006 (ML061870578) and July 19, 2006 (ML062070231)
11. Radiological Characterization Survey Report (ML062710179)
12. Decommissioning/Remediation Plan (ML062760618)
13. Letter dated January 12, 2007 (ML070160372)
14.
If you do not have access to ADAMS, or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
The ACRS Subcommittee on Safety Research Program will hold a meeting on December 18, 2007, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss the scope of long-term research the agency needs to consider. The purpose of this meeting is to gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Dr. Hossein P. Nourbakhsh, (Telephone: 301-415-5622) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted. Detailed procedures for the conduct of and participation in ACRS meetings were published in the
Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 7:30 a.m. and 4:15 p.m. (ET). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes to the agenda.
The ACRS Subcommittee on Reliability and Probabilistic Risk Assessment (PRA) will hold a meeting on December 19, 2007, Room T-2B1,
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss the draft NUREG-1855, “Guidance on the Treatment of Uncertainties Associated with PRAs in Risk-Informed Decisionmaking.” The Subcommittee will hear presentations by and hold discussions with representatives of NRC staff and Electric Power Research Institute (EPRI) regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Dr. Hossein P. Nourbakhsh, (Telephone: 301-415-5622) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted. Detailed procedures for the conduct of and participation in ACRS meetings were published in the
Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 7:30 a.m. and 4:15 p.m. (ET). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes to the agenda.
U.S. Nuclear Regulatory Commission.
Impending Issuance, Availability of Regulatory Guides in Divisions 3, 6, and 10.
Andrea D. Valentin, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-7143 or e-mail
The U.S. Nuclear Regulatory Commission (NRC) is currently reviewing and revising numerous guides in the agency's “Regulatory Guide” (RG) series. This series was developed to describe, and make available to the public, methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
The NRC has established 10 broad divisions of RGs. The NRC periodically revises its RGs as new guidance becomes available. In some cases, new guidance has been provided through other means (e.g., agency's NUREG reports) and the RGs have not been updated. The following list of RGs in Division 3, “Fuels and Materials Facilities,” Division 6, “Products,” and Division 10, “General,” are now being revised to update the applicable guidance.
The NRC staff encourages and welcomes comments and suggestions in connection with improvements to published RGs, as well as items for inclusion in RGs that are currently being developed. You may submit comments by any of the following methods:
1. Mail comments to Rulemaking, Directives, and Editing Branch, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 (MS T-6 D59).
2. Hand-deliver comments to Rulemaking, Directives, and Editing Branch, Office of Administration, U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. on Federal workdays.
3. Fax comments to Rulemaking, Directives and Editing Branch, Office of Administration, U.S. Nuclear Regulatory Commission, at (301) 415-5144.
4. E-mail comments to
These draft revised RGs are expected to be published for review and comment
1. The NRC's Electronic Reading Room on the agency's public Web site, under “Regulatory Guides” at
2. The NRC's Agencywide Documents Access and Management System (ADAMS), at
RGs are not copyrighted, and Commission approval is not required to reproduce them. Copies of each RG and other related publicly available documents, including public comments received, can be viewed electronically on computers in the NRC's Public Document Room (PDR), which is located at One White Flint North, 11555 Rockville Pike, Rockville, Maryland, Room O-1 F21, and is open to the public on Federal workdays from 7:45 a.m. until 4:15 p.m. The PDR reproduction contractor will make copies of documents for a fee. If you do not have access to ADAMS or if you encounter problems in accessing the documents stored in ADAMS, contact the PDR Reference Staff at (800) 397-4209 or (301) 415-4737, or by e-mail to
For the U.S. Nuclear Regulatory Commission.
Pension Benefit Guaranty Corporation.
Notice of flat premium rates.
This notice informs the public of the PBGC flat premium rates for premium payment years beginning in 2008. These rates can be derived from information published elsewhere but are published in this notice for the convenience of the public.
The flat premium rates apply to premium payment years beginning in 2008.
Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
The Pension Benefit Guaranty Corporation (PBGC) administers the pension plan termination insurance program under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). Pension plans covered by Title IV must pay premiums to PBGC. Section 4006 of ERISA deals with premium rates.
The Deficit Reduction Act of 2005 (Pub. L. 109-171) (DRA 2005) amended section 4006 of ERISA. DRA 2005 changed the per-participant flat premium rate for plan years beginning in 2006 from $19 to $30 for single-employer plans and from $2.60 to $8 for multiemployer plans and provided for inflation adjustments to the flat rates for future years. The adjustments are based on changes in the national average wage index as defined in section 209(k)(1) of the Social Security Act, with a two-year lag—for example, for 2008, the 2006 index is compared to the baseline (the 2004 index). The new provisions are written in such a way that the premium rate can never go down; if the change in the national average wage index is negative, the premium rate remains the same as in the preceding year. Also, premium rates are rounded to the nearest whole dollar.
The baseline national average wage index, the 2004 index, was $35,648.55. The 2006 index was $38,651.41. The ratio of the 2006 index to the 2004 index is 1.084235. Multiplying this ratio by $30.00 gives $32.53 which rounds to $33.00. Multiplying the ratio by $8.00 gives $8.67, which rounds to $9.00. Thus, the 2008 flat premium rates for PBGC's two insurance programs will be $33.00 per participant for single-employer plans and $9.00 per participant for multiemployer plans.
The PBGC will publish the flat premium rates annually for the convenience of the public.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (“Commission”) has submitted to the Office of Management and Budget a request for extension of the previously approved collection of information discussed below.
Section 7(d) of the Investment Company Act of 1940 (15 U.S.C. 80a-7(d)) (the “Act” or “Investment Company Act”) requires an investment company (“fund”) organized outside the United States (“foreign fund”) to obtain an order from the Commission allowing the fund to register under the Act before making a public offering of its securities through the United States mail or any means of interstate commerce. The Commission may issue an order only if it finds that it is both legally and practically feasible effectively to enforce the provisions of the Act against the foreign fund, and that the registration of the fund is consistent with the public interest and protection of investors.
Rule 7d-1 (17 CFR 270.7d-1) under the Act, which was adopted in 1954, specifies the conditions under which a Canadian management investment company (“Canadian fund”) may request an order from the Commission permitting it to register under the Act. Although rule 7d-1 by its terms applies only to Canadian funds, other foreign funds generally have agreed to comply with the requirements of rule 7d-1 as a prerequisite to receiving an order permitting the foreign fund's registration under the Act.
The rule requires a Canadian fund proposing to register under the Act to file an application with the Commission that contains various undertakings and agreements of the fund. Certain of these undertakings and agreements, in turn, impose the following additional information collection requirements:
(1) The fund must file agreements between the fund and its directors, officers, and service providers requiring them to comply with the fund's charter and bylaws, the Act, and certain other
(2) The fund and each of its directors, officers, and investment advisers that is not a U.S. resident, must file an irrevocable designation of the fund's custodian in the United States as agent for service of process;
(3) The fund's charter and bylaws must provide that (a) the fund will comply with certain provisions of the Act applicable to all funds, (b) the fund will maintain originals or copies of its books and records in the United States, and (c) the fund's contracts with its custodian, investment adviser, and principal underwriter, will contain certain terms, including a requirement that the adviser maintain originals or copies of pertinent records in the United States;
(4) The fund's contracts with service providers will require that the provider perform the contract in accordance with the Act, the Securities Act of 1933 (15 U.S.C. 77a-77z-3), and the Securities Exchange Act of 1934 (15 U.S.C. 78a-78mm), as applicable; and
(5) The fund must file, and periodically revise, a list of persons affiliated with the fund or its adviser or underwriter.
Under section 7(d) of the Act the Commission may issue an order permitting a foreign fund's registration only if the Commission finds that “by reason of special circumstances or arrangements, it is both legally and practically feasible effectively to enforce the provisions of the (Act).” The information collection requirements are necessary to assure that the substantive provisions of the Act may be enforced as a matter of contract right in the United States or Canada by the fund's shareholders or by the Commission.
Certain information collection requirements in rule 7d-1 are associated with complying with the Act's provisions. These information collection requirements are reflected in the information collection requirements applicable to those provisions for all registered funds.
The Commission believes that one fund is registered under rule 7d-1 and currently active. Apart from requirements under the Act applicable to all registered funds, rule 7d-1 imposes ongoing burdens to maintain records in the United States, and to update, as necessary, the foreign fund's list of affiliated persons. The Commission staff estimates that the active registrant makes one response each year under the rule update its list of affiliated persons.
If a foreign fund were to file an application under the rule, the Commission estimates that the rule would impose initial information collection burdens (for filing an application, preparing the specified charter, bylaw, and contract provisions, designations of agents for service of process, and an initial list of affiliated persons, and establishing a means of keeping records in the United States) of approximately 90 hours for the fund and its associated persons. The Commission is not including these hours in its calculation of the annual burden because no fund has applied under rule 7d-1 to register under the Act in the last three years.
After registration, a foreign fund may file a supplemental application seeking special relief designed for the fund's particular circumstances. Because rule 7d-1 does not mandate these applications and the fund determines whether to submit an application, the Commission has not allocated any burden hours for these applications.
These estimates of average burden hours are made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of Commission rules.
If a Canadian or other foreign fund in the future applied to register under the Act under rule 7d-1, the fund initially might have capital and start-up costs (not including hourly burdens) of an estimated $17,280 to comply with the rule's initial information collection requirements. These costs include legal and processing-related fees for preparing the required documentation (such as the application, charter, bylaw, and contract provisions), designations for service of process, and the list of affiliated persons. Other related costs would include fees for establishing arrangements with a custodian or other agent for maintaining records in the United States, copying and transportation costs for records, and the costs of purchasing or leasing computer equipment, software, or other record storage equipment for records maintained in electronic or photographic form.
The Commission expects that a foreign fund and its sponsors would incur these costs immediately, and that the annualized cost of the expenditures would be $17,280 in the first year. Some expenditures might involve capital improvements, such as computer equipment, having expected useful lives for which annualized figures beyond the first year would be meaningful. These annualized figures are not provided, however, because, in most cases, the expenses would be incurred immediately rather than on an annual basis. The Commission is not including these costs in its calculation of the annualized capital/start-up costs because no investment company has applied under rule 7d-1 to register under the Act pursuant to rule 7d-1 in the last three years.
These estimates of average costs are made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules.
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 Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form F-4 (17 CFR 239.34) is used by foreign issuers to register securities in business combinations, reorganizations and exchange offers pursuant to federal securities laws pursuant to the Securities Act of 1933 (15 U.S.C. 77a
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 control number.
Written comments regarding the above information should be directed 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 send an e-mail to
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• Rule 19b-4 (17 CFR 240.19b-4) and Form 19b-4—Filings with respect to proposed rule changes by self-regulatory organizations.
Section 19(b) of the Securities Exchange Act of 1934 (“Act”) (15 U.S.C. 78s(b)) requires each self-regulatory organization (“SRO”) to file with the Commission copies of any proposed rule, or any proposed change in, addition to, or deletion from the rules of such SRO. Rule 19b-4 implements the requirements of Section 19(b) by requiring the SROs to file their proposed rule changes on Form 19b-4 and by clarifying which actions taken by SROs are deemed proposed rule changes and so must be filed pursuant to Section 19(b).
The collection of information is designed to provide the Commission with the information necessary to determine, as required by the Act, whether the proposed rule change is consistent with the Act and the rules thereunder. The information is used to determine if the proposed rule change should be approved or if proceedings should be instituted to determine whether the proposed rule change should be disapproved.
The respondents to the collection of information are self-regulatory organizations (as defined by the Act), including national securities exchanges, national securities associations, registered clearing agencies and the Municipal Securities Rulemaking Board.
Twenty-two respondents file an average total of 1,279 responses per year. Each response takes approximately 23.22 hours to complete. Thus, the estimated annual response burden is 29,698 hours. At an average cost per response of $6,150.31, the resultant total related cost of compliance for these respondents is $7,866,246 per year (1,279 responses × $6,150.31/response = $7,866,246).
Compliance with Rule 19b-4 is mandatory. Information received in response to Rule 19b-4 shall not be kept confidential; the information collected is public information.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
The Securities and Exchange Commission (“Commission”).
Notice of application for an order of exemption pursuant to Section 17(b) of the Investment Company Act of 1940, as amended (the “1940 Act” or “Act”).
The Applicants hereby apply for an order of exemption pursuant to Section 17(b) of the 1940 Act to permit in-kind purchases in connection with a substitution as described herein.
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicants, John Hancock Life Insurance Company (U.S.A.), 601 Congress Street, Boston, MA 02210.
Alison T. White, Senior Counsel, or Joyce M. Pickholz, Branch Chief, Office of Insurance Products, Division of Investment Management, at (202) 551-6795.
The following is a summary of the Application. The complete Application is available for a fee from the Public Reference Branch of the Commission, 100 F Street, NE., Room 1580, Washington, DC 20549 (202-551-8090).
1. John Hancock USA, formerly known as The Manufacturers Life Insurance Company (U.S.A.), is a stock life insurance company originally organized under the laws of Maine on August 20, 1955 by a special act of the Maine legislature. John Hancock USA redomesticated under the laws of Michigan on December 30, 1992.
2. Account H is registered under the Act as a unit investment trust (File No. 811-4113). The variable annuity contracts funded by Account H that are affected by this Application are Scudder Wealthmark Annuity (File Nos. 333-70728 and 333-70730) and Scudder Wealthmark ML3 Annuity (File No. 333-70850).
3. John Hancock New York, formerly known as The Manufacturers Life Insurance Company of New York, is a wholly-owned subsidiary of John Hancock USA and is a stock life insurance company organized under the laws of New York on February 10, 1992.
4. Account A is registered under the Act as a unit investment trust (File No. 811-6584). It is used to fund variable annuity contracts of John Hancock New York. The variable annuity contracts funded by Account A that are affected by this application are Scudder Wealthmark Annuity for New York (File Nos. 33-79112 and 33-46217) and Scudder Wealthmark ML3 Annuity for New York (File No. 333-83558).
5. The individual and group variable annuity contracts affected by this Application are collectively referred to as the “Contracts.”
6. Each of the Contracts permits its owners to allocate the Contract's accumulated value among numerous available Subaccounts, each of which invests in a different investment portfolio (“Fund”) of an underlying mutual fund.
7. Shares of JHT are sold exclusively to insurance company separate accounts to fund benefits under variable annuity contracts and variable life insurance policies sponsored by the Insurance Companies or their affiliates, and to employer pension and profit sharing plans. JHT is registered under the Act as an open-end management investment company of the series type, and its securities are registered under the Securities Act of 1933, File Nos. 002-94157 and 811-04146. John Hancock Investment Management Services, LLC (formerly, Manufacturers Securities Services, LLC) (“JHIMS”), is the investment adviser to JHT, and each series has its own subadviser.
8. John Hancock USA and John Hancock New York (collectively the “Insurance Companies”) and Account H and Account A (collectively the “Separate Accounts”) previously applied for and were granted an Order of the Commission pursuant to Section 26(c) of the Act (Inv. Co. Act Rel. No. 27781, the “Section 26(c) Order”) approving the substitution of shares of certain series of JHT for shares of comparable series of various registered investment companies, the majority of which were series of DWS Variable Series II. The Section 26(c) Order approved, among others, the substitution of shares of JHT Investment Quality Bond Trust—Series II of JHT (such series being referred to herein as the “Replacement Fund”) for shares of DWS Core Fixed Income VIP—Series II, Class B of DWS Variable Series II (such series being referred to herein as the “Existing Fund”). All of the substitutions approved in the Section 26(c) Order, except that involving the Existing Fund and the Replacement Fund, were completed or are in the process of being completed.
9. The reason that the substitution involving the Existing Fund and the Replacement Fund has not been completed is that Deutsche Investment Management Americas Inc. (“DeIM”), the investment advisor of the Existing Fund, has informed the Insurance Companies that the redemption of the shares of the Existing Fund that are held by the Separate Accounts may be effected partly in cash and partly in-kind.
10. The Insurance Companies, on behalf of the Separate Accounts, propose to redeem the shares held by the Separate Accounts in the Existing Fund for a combination of cash and securities. The redemption will be done on a pro-rata basis. The in-kind redemption from the Existing Fund will be effected in accordance with the conditions set forth in the Commission's no-action letter issued to
11. The Insurance Companies, after redeeming the shares held by the Separate Accounts in the Existing Fund for a combination of cash and securities, will then use such redemption proceeds to purchase shares of the Replacement Fund.
12. The Applicants request an order under Section 17(b) exempting them from the provisions of Section 17(a) to
13. Section 17(a)(1) of the Act, in relevant part, prohibits any affiliated person of a registered investment company, or any affiliated person of such person, acting as principal, from knowingly selling any security or other property to that company. Section 17(a)(2) of the Act generally prohibits the persons acting as principals, from knowingly purchasing any security or other property from the registered company.
14. Because shares held by a separate account of an insurance company are legally owned by the insurance company, the Insurance Companies and their affiliates collectively own of record substantially all of the shares of JHT. Therefore, JHT and the Replacement Fund are arguably under the control of the Insurance Companies notwithstanding the fact that Contract owners may be considered the beneficial owners of those shares held in the Separate Accounts. If JHT and the Replacement Fund are under the control of the Insurance Companies, then each Insurance Company is an affiliated person or an affiliated person of an affiliated person of JHT and the Replacement Fund. If JHT and the Replacement Fund are under the control of the Insurance Companies, then JHT and the Replacement Fund are affiliated persons of the Insurance Companies.
15. Regardless of whether or not the Insurance Companies can be considered to control JHT and the Replacement Fund, because the Insurance Companies own of record more than 5% of the shares of each of them and are under common control with the Replacement Funds' investment adviser, the Insurance Companies are affiliated persons of JHT and the Replacement Fund. Likewise, the Replacement Fund is an affiliated person of the Insurance Companies.
16. The Insurance Companies, through their Separate Accounts, in the aggregate own more than 5% of the outstanding shares of the Existing Fund. Therefore, each Insurance Company is an affiliated person of the Existing Fund.
17. Because the substitution may be effected, in whole or in part, by means of in-kind redemptions and purchases, the substitution may be deemed to involve one or more purchases or sales of securities or property between affiliated persons. The proposed transactions will involve a transfer of portfolio securities by the Existing Fund to the Insurance Companies; immediately thereafter, the Insurance Companies, on behalf of the Separate Accounts, will purchase shares of the Replacement Fund with the portfolio securities received from the Existing Fund. Accordingly, the Insurance Companies and the Existing Fund, and the Insurance Companies and the Replacement Fund could be viewed as affiliated persons of one another under Section 2(a)(3) of the Act. It is conceivable that this aspect of the substitution could be viewed as being prohibited by Section 17(a). Therefore, the Applicants have determined to seek relief from Section 17(a) for the in-kind purchases and sales of the shares of the Replacement Fund.
18. Section 17(b) of the Act provides that the Commission may, upon application, grant an order exempting any transaction from the prohibitions of Section 17(a) if the evidence establishes that: (1) The terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned; (2) the proposed transaction is consistent with the policy of each registered investment company concerned, as recited in its registration statement and records filed under the Act; and (3) the proposed transaction is consistent with the general purposes of the Act.
19. The Applicants submit that the terms of the proposed in-kind purchases of shares of the Replacement Fund, including the consideration to be paid and received, as described in this Application, are reasonable and fair and do not involve overreaching on the part of any persons concerned. The Applicants also submit that the proposed in-kind purchases by the Insurance Companies will be consistent with the investment policies of the Replacement Fund. The Insurance Companies' redemption of the shares held by the Separate Accounts in the Existing Fund and the Insurance Companies' subsequent purchase of shares of the Replacement Fund with such redemption proceeds are scheduled to occur on the same day. The Replacement Fund may opt to sell all or a portion of such in-kind securities received. The Applicants submit that the proposed substitution is consistent with the general purposes of the Act.
20. Applicants assert that, to the extent that the in-kind purchases are deemed to involve principal transactions among affiliated persons, the procedures described below should be sufficient to assure that the terms of the proposed transactions are reasonable and fair to all participants. The Applicants maintain that the terms of the proposed in-kind purchase transactions, including the consideration to be paid and received by each fund involved, are reasonable, fair and do not involve overreaching. Applicants represent that the transactions will conform with all but one of the conditions enumerated in Rule 17a-7. The proposed transactions will take place at relative net asset value in conformity with the requirements of Section 22(c) of the Act and Rule 22c-1 thereunder with no change in the amount of any Contract owner's contract value or death benefit or in the dollar value of his or her investment in any of the Separate Accounts. Contract owners will not suffer any adverse tax consequences as a result of the substitution. The fees and charges under the Contracts will not increase because of the substitution. Even though the Separate Accounts, the Insurance Companies and JHT may not rely on Rule 17a-7, the Applicants believe that the Rule's conditions outline the type of safeguards that result in transactions that are fair and reasonable to registered investment company participants and preclude overreaching in connection with an investment company by its affiliated persons.
21. The board of JHT has adopted procedures, as required by paragraph (e)(1) of Rule 17a-7, pursuant to which its series may purchase and sell securities to and from their affiliates. The Applicants will carry out the proposed Insurance Company in-kind purchases in conformity with all of the conditions of Rule 17a-7 and the Replacement Fund's procedures thereunder, except that the consideration paid for the securities being purchased or sold may not be entirely cash. Nevertheless, the circumstances surrounding the proposed substitution will be such as to offer the same degree of protection to the Replacement Fund from overreaching that Rule 17a-7 provides to it generally in connection with their purchase and sale of securities under that Rule in the ordinary course of their business. In particular, the proposed transactions will not be effected at a price that is disadvantageous to the Replacement Fund. Although the transactions may not be entirely for cash, each will be effected based upon (1) the independent market price of the portfolio securities valued as specified in paragraph (b) of Rule 17a-7, and (2) the net asset value per share of each fund involved valued in accordance with the procedures disclosed in its respective registration statement and as
22. The sale of shares of the Replacement Fund for investment securities, as contemplated by the proposed in-kind purchases, will be consistent with the investment policy and restrictions of the Replacement Fund because (1) the shares will be sold at their net asset value, and (2) the portfolio securities will be of the type and quality that the Replacement Fund could have acquired with the proceeds from share sales had the shares been sold for cash. To assure that the second of these conditions is met, the investment adviser and sub-adviser of the Replacement Fund will examine the portfolio securities being offered to the Replacement Fund and accept only those securities as consideration for shares that they could have acquired for the Replacement Fund in a cash transaction.
23. The Applicants submit that the Insurance Companies' in-kind purchases are consistent with the general purposes of the Act as stated in the Findings and Declaration of Policy in Section 1 of the Act and that the proposed transactions do not present any of the conditions or abuses that the Act was designed to prevent.
24. The Applicants represent that the proposed in-kind purchases meet all of the requirements of Section 17(b) of the Act and request that the Commission issue an order pursuant to Section 17(b) of the Act exempting the Separate Accounts, the Insurance Companies, JHT, and the Replacement Fund from the provisions of Section 17(a) of the Act to the extent necessary to permit the Insurance Companies on behalf of the Separate Accounts to carry out, as part of the substitution, the in-kind purchases of shares of the Replacement Fund which may be deemed to be prohibited by Section 17(a) of the Act.
Applicants assert that for the reasons summarized above the proposed substitution and related transactions are consistent with the standards of Section 17(b) of the Act and that the requested orders should be granted.
For the Commission, by the Division of Investment Management pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
FICC is seeking to replace the Mortgage-Backed Securities Division (“MBSD”) margin calculation methodology with a Value-at-Risk (“VaR”) methodology.
In its filing with the Commission, FICC 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. FICC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
Clearing participants of MBSD are required to maintain participants' fund deposits. Each participant's required deposit is calculated daily to ensure enough funds are available to cover the risks associated with that participant's activities.
The purpose served by the participants fund is to have on deposit from each participant assets sufficient to satisfy any losses that may otherwise be incurred by MBSD participants as the result of the default by the participant and the resultant closeout of that participant's settlement positions.
FICC proposes to replace the current participants fund methodology, which uses haircuts and offsets, with a VaR model. FICC expects the VaR model to better reflect market volatility and to more thoroughly distinguish levels of risk presented by individual securities.
Specifically, FICC is proposing to replace the existing MBSD margin calculation with a yield-driven VaR model. VaR is defined to be the maximum amount of money that may be lost on a portfolio over a given period of time within a given level of confidence. With respect to the MBSD, FICC is proposing a 99 percent three-day VaR.
The changes to the components that comprise the current participants fund calculation versus the proposed VaR calculation in relation to the risks addressed by the components are summarized as follows:
In addition, FICC may include in a participant's participant fund calculation a “special charge” as determined by FICC from time to time in view of market conditions and the financial and operational capabilities of the participant. FICC will make any such determination based on such factors as it determines to be appropriate.
Because it would become obsolete upon approval of the proposed rule change, FICC also proposes to eliminate the provision in the MBSD rules requiring participants to maintain a Basic Deposit and Minimum Market Margin Differential Deposit with MBSD pursuant to Article IV, Rule 1 (Participants Fund), section 1(a) and (b).
FICC believes that the proposed rule change is consistent with the requirements of section 17A of the Act
FICC does not believe that the proposed rule change would have any impact or impose any burden on competition.
Written comments have not been solicited with respect to the proposed rule change, and none have been received. FICC will notify the Commission of any written comments it receives.
Within thirty-five days of the date of publication of this notice in the
(A) By order approve such proposed rule change 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 form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend the earnings standard and valuation/revenue with cash flow standard of section 102.01B of the Exchange's Listed Company Manual (“Manual”). The amendment will enable the Exchange, under certain limited circumstances, to qualify companies for listing under the three-year financial requirements of those two standards on the basis of two completed fiscal years of financial statements and financial statements covering the first six months of the current fiscal year, provided that the company must include, in a public disclosure (either an SEC filing or a press release) prior to the date of listing, financial data as derived from financial statements that have been subject to a Statement of Auditing Standards 100 (“SAS 100”) review that confirms that the company continues to satisfy the applicable standard based on at least nine completed months of the current fiscal year.
The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NYSE has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the earnings standard and valuation/revenue with cash flow standard of section 102.01B of the Manual. The amendment will enable the Exchange, under certain limited circumstances, to qualify companies for listing under the three-year financial requirements of those two standards on the basis of two completed fiscal years of financial statements and financial statements covering the first six months of the current fiscal year, provided that the company must include, in a public disclosure (either an SEC filing or press release) prior to the date of listing, financial data as derived from financial statements that have been subject to an SAS 100 review that confirms that the company continues to satisfy the applicable standard based on at least nine completed months of the current fiscal year.
The proposed rule change does not alter the quantitative requirements companies must meet under the Exchange's financial listing standards, but simply provides greater flexibility to certain companies in demonstrating their satisfaction of those requirements. Currently, where a company has changed its fiscal year or undergone a significant change in its operations
• Divestiture or discontinuation of a loss-making business line,
• A change in management,
• An acquisition or series of acquisitions,
• Economies of scale and increased revenues as the company emerges from its start-up phase,
• The effect of foreign currency valuation,
• Entering a new geographic region or market or exiting a geographic region or market, or
• The launch of a new product or service.
Under the proposed amendment, the company would still need to demonstrate compliance with the relevant standard over at least nine completed months of the current fiscal year. The only distinction is that the company could demonstrate compliance through the inclusion of summary financial information for the nine-
The proposed amendment will enable the Exchange to facilitate the listing of companies that have completed at least nine months of their current fiscal year and qualify for listing on the basis of their interim results but have not yet been able to prepare full financial statements for the relevant period. Market conditions and the timing of companies' financing needs frequently make it undesirable for companies to delay their listing. As such, companies that would like to list on the Exchange, and have financial results that qualify them for listing, may occasionally feel compelled to list elsewhere because they cannot wait until work is finished on their interim financial statements. The Exchange believes that the proposed amendment will provide reasonable flexibility to enable it to list companies that find themselves in this circumstance, without in any way diluting the financial standards those companies must meet.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii)
The Commission notes that the Exchange's quantitative requirements for the last fiscal year are not changing. Rather, under the proposal, the Exchange's requirements could be met in a shorter period of time and through the review of summary interim financial information. The rule specifically requires that when qualifying companies for listing based on interim financial information from the current fiscal year, the Exchange must conclude that the company can reasonably be expected to qualify under the regular standard upon completion of the companies' then current fiscal year. In reaching this conclusion, the Exchange states that it would consider whether the company's revenues or costs are subject to seasonal variation and the possible impact of any such variation on the suitability of predicting the company's full year performance based on its results for the first nine months
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such proposed rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes 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 Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend NYSE Arca Equities Rule 5.2(j)(6) to amend certain requirements relating to indexes underlying Equity Index-Linked Securities.
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 III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(2)(d) currently provides that each Equity Reference Asset (i) must be calculated based on either a capitalization, modified capitalization, price, equal-dollar, or modified equal-dollar weighting methodology, and (ii) if based upon the equal-dollar or modified equal-dollar weighting method, must be rebalanced at least quarterly. The Exchange proposes to amend NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(2)(d) to delete the requirement that the Equity Reference Asset used in connection with an issuance of Equity Index-Linked Securities must be calculated based on either a capitalization, modified capitalization, price, equal-dollar, or modified equal-dollar weighting
The Exchange states that the elimination of the limitations as to weighting methodologies permitted for Equity Reference Assets underlying Equity Index-Linked Securities would make NYSE Arca Equities Rule 5.2(j)(6) consistent with the Equity Index-Linked Securities listing standards of other national securities exchanges, such as the New York Stock Exchange LLC (“NYSE”),
The Exchange believes that the proposed rule change 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 that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
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 e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange
The Commission notes that the proposal to delete the requirement that the Equity Reference Asset be calculated based on certain specified methodologies would conform the Exchange's requirements to the current listing standards for Equity Index-Linked Securities of another national securities exchange.
The Commission finds good cause for approving the proposed rule change prior to the 30th day after the date of publication of the notice of filing thereof in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Social Security Administration (SSA) publishes a list of information collection packages that will require clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. The information collection packages that may be included in this notice are for new information collections, approval of existing information collections, revisions to OMB-approved information collections, and extensions (no change) of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and on ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Written comments and recommendations regarding the information collection(s) should be submitted to the OMB Desk Officer and the SSA Reports Clearance Officer. The information can be mailed, faxed or emailed to the individuals at the addresses and fax numbers listed below:
I. The information collections listed below are pending at SSA and will be submitted to OMB within 60 days from the date of this notice. Therefore, your comments should be submitted to SSA within 60 days from the date of this publication. You can obtain copies of the collection instruments by calling the SSA Reports Clearance Officer at 410-965-0454 or by writing to the address listed above.
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Estimated Annual Cost for all respondents:
**Please note that both of these data matching processes are entirely electronic and there is no hourly burden for the respondent to provide this information. The cost burdens are based on the four cost components incurred by the respondents:
II. The information collections listed below have been submitted to OMB for clearance. Your comments on the information collections would be most useful if received by OMB and SSA within 30 days from the date of this publication. You can obtain a copy of the OMB clearance packages by calling the SSA Reports Clearance Officer at 410-965-0454, or by writing to the address listed above.
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(1) When SSA published the 60-day Notice for this collection on September 14, 2007 at 72 FR 52594, we described this as a revision. However, since that time OMB has determined that our proposed revisions were non-substantive in nature and has approved them. We are therefore now listing this collection as an extension. A list of the non-substantive changes SSA made are available if the public requests them. (2) The number of respondents completing the i1020 is greater and the number of respondents using the paper SSA-1020 is less than the numbers reported in the 60-day
6.
Notice.
Notice is hereby given that the Department of State has terminated the statutory debarment against Morris Rothenberg & Son, Inc. (d/b/a ROTHCO) pursuant to section 38(g)(4) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(g)(4)).
November 20, 2007.
David C. Trimble, Director Office of Defense Trade Controls Compliance, Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State (202) 663-2807.
Section 38(g)(4) of the AECA (22 U.S.C. 2778) prohibits the issuance of export licenses to a person, if that person or any party to the export has been convicted of violating section 38 of the AECA and
In July 1999, ROTHCO was convicted of violating the AECA and the ITAR (U.S. District Court, District of Connecticut, 3:04CR 149-JBA). Based on this conviction, ROTHCO was statutorily debarred pursuant to section 127.7 of the ITAR and, thus, prohibited from participating directly or indirectly in exports of defense articles and defense services. Notice of debarment was published in the
In accordance with section 38(g)(4) of the AECA, statutory debarment may be terminated after consultation with the other appropriate U.S. agencies and after a thorough review of the circumstances surrounding the conviction and a finding that appropriate steps have been taken to mitigate any law enforcement concerns. The Department of State, after consultation with other agencies, has determined that ROTHCO has taken appropriate steps to address the causes of the violations and to mitigate any law enforcement concerns. Therefore, the debarment against ROTHCO is rescinded, effective November 20, 2007.
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 highway project in Christian, Shelby, Fayette, Marion, Clinton, Jefferson, and Washington Counties, Illinois.
Norman R. Stoner, P.E., Division Administrator, Federal Highway Administration, 3250 Executive Park Drive, Springfield, Illinois 62703, Phone: (217) 492-4600. Christine Reed, P.E., Deputy Director of Highways, Region 4 Engineer, District 7, Illinois Department of Transportation, 400 W. Wabash, Effingham, Illinois 62401, Phone: (217) 342-8201.
The FHWA, in cooperation with the Illinois Department of Transportation, will prepare an environmental impact statement (EIS) on a proposal to improve US Route 51 located in the Illinois counties of Christian, Shelby, Fayette, Marion, Clinton, Jefferson, and Washington. The proposed improvement would involve the expansion of the existing 70-mile roadway facility between CR 900 N (South of Pana) to CR 2150 N (East of Irvington).
Improvements to the corridor are considered necessary due to increases in traffic volumes, operational issues, and State economic initiatives. Alternatives that may be considered include (1) taking no action; (2) combining the existing two-lane highway with widening to four lanes on existing and/or new location; and (3) constructing a four-lane highway on new location.
Improvements to US 51 have the potential to affect agricultural, biological, historical, and natural resources within the corridor. The corridor contains moderately prime farmland in rural areas. A nature preserve exists along the abandoned railroad right-of-way north of Ramsey and the palustrine wetlands of the Kaskaskia River basin area may be habitat for plant and animal species listed by State and Federal endangered and threatened wildlife and plants programs. The Kaskaskia drainage basin has potential to contain prehistoric archaeological sites. Historical resources located along US 51 include the Vandalia Statehouse and the First Presbyterian church in Vandalia. Hazardous waste sites exist within the corridor, including the Sandoval zinc smelter site and several tank farms east of US 51 near Patoka. In the urban limits of the corridor, residential areas adjacent to US 51 may be affected.
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, and local agencies. A public scoping meeting is planned for January 2008 and agency scoping meeting is planned for February 2008. Due to the length of the corridor, public meetings will be held in each region; north, central, and south. The first public meetings will take place in January 2008. Illinois' Context Sensitive Solutions (CSS) process will be used for public involvement. The project Web site is
To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments, and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
The FMCSA announces that it has received from Verigo, Incorporated (Verigo) an application for an exemption from the signature requirement for a driver on the record of duty status (RODS). Verigo's application is being made on behalf of all drivers and carriers operating commercial motor vehicles in the U.S. and using the Verigo Wireless Logbook. The exemption would allow a signature entered on an electronic “signature pad” to be the functional equivalent of a handwritten signature on the RODS. Verigo states that this will allow the trucking industry to reduce administrative costs and increase productivity by providing a simple and effective alternative to paper RODS. The FMCSA requests public comment on Verigo's application for exemption.
Comments must be received on or before December 31, 2007.
You may submit comments identified by Federal Docket Management System Number FMCSA-2007-0069 by any of the following methods:
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Mr. Richard Clemente, Transportation Specialist, FMCSA Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations. Telephone: 202-366-4325. E-mail:
Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) amended 49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from motor carrier safety regulations. Under its regulations, FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Verigo, a software developer headquartered in Edmonton, Alberta, Canada, manufactures a wireless record-of-duty-status (RODS) (“logbook”) and trip-inspection report system that is currently used by Canadian motor carriers and drivers. This system uses a software program operating on a “pocket-PC” cellular telephone with a touch screen, which, according to Verigo, provides a very simple method for drivers to create the RODS. Verigo states that this system reduces the driver and motor carrier compliance “burden” of the hours of service (HOS) regulations by automating five of the six manual RODS processes, as drivers are only required to make simple touch screen entries to complete each step. The software program makes all calculations, provides an onscreen display that meets the requirements for roadside inspectors, and e-mails a copy of the driver's daily RODS to the motor carrier or any other person authorized by the driver to receive a copy. The Wireless Logbook System includes an automatic change-over feature between Canadian and U.S. HOS rules when the driver makes a border-crossing entry.
Verigo is applying for a 2-year exemption from 49 CFR 395.8(f)(2). This section requires entries made by the driver on the RODS to be legible and in the driver's own handwriting. Verigo is requesting the exemption for all users of their Verigo Wireless Logbook. The total number of units to be operated under the exemption is unknown as they are a service provider for an indeterminate number of motor carriers with various fleet sizes.
Verigo requests the exemption from the requirement to print and sign the daily RODS by accepting either an on-screen display or an e-mail or fax copy of the document, all of which have been certified by capturing the driver's own handwriting on the signature pad that is embedded in the “pocket PC” device. The touch screen—with an embedded signature pad—allows the driver to sign each RODS in his or her own handwriting. The device also allows inspectors and enforcement officers to view up to 14 previous days' RODS, or to obtain printed copies at the roadside via e-mail.
Verigo believes that the requested exemption is administrative in nature and does not affect the limits on driving time and on-duty time. An equivalent or greater level of safety would be achieved by using the device because of its ability to simplify and encourage regulatory compliance. According to Verigo, the wireless logbook deters falsification. The time-line on the grid sheet is plotted by the software program, and once the driver has selected a duty status, all time spent doing that task is recorded and stored. The driver may edit the record, but the time of the original data entry and all modifications are recorded and cannot be changed. This results in a “dual data stream” of original and modified entries that can be displayed on the screen. Modifications to entries are not permitted after the RODS is signed. New information may be added to the RODS after the signature time-stamp, but it must be signed before it can be sent to the server for distribution to the motor carrier or the roadside inspector. Verigo states that its logbook program replicates and automates all of the functions of paper RODS. The program provides a significantly higher and faster level of
According to Verigo, if its application for exemption is denied, the trucking industry will lose an opportunity to become more efficient and cost-effective in complying with the HOS regulations. The use of Verigo's technological solution will allow the industry to reduce administrative costs and increase productivity by providing a simple and effective alternative to paper RODS. Verigo therefore requests that an exemption be granted for a period of 2 years, with the possibility of renewal. A copy of Verigo's exemption application is in the docket identified at the beginning of this notice.
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comment on Verigo's application for an exemption. The Agency will consider all comments received by close of business on December 31, 2007. Comments will be available for examination in the docket at the location listed under the “Addresses” section of this notice. The Agency will file comments received after the comment closing date in the public docket, and will consider them to the extent practicable.
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
Mount Vernon Terminal Railway, Inc. (MVT) of Clear Lake, Washington, seeks a waiver of compliance from Safety Glazing Standards 49 CFR 223.11, “
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (Docket Number FRA-2007-29238) and may be submitted by any of the following methods:
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Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The SMS Lines (SMS), a Class III railroad, seeks a waiver of compliance from the requirements of Title 49 Code of Federal Regulations (CFR) § 223.11
SMS Locomotives Number 102, model DS 4-4-750 was built in 1951, 308 model S-12 was built in 1953, and 309 model S-12 was built in 1952, by the Baldwin Locomotive Works (BLW). They would operate over approximately 5 miles of track with four grade crossings within the Industrial Park at Bridgeport, New Jersey, and one grade crossing at the Valery Refinery in Paulsboro, New Jersey. Current operations average 1 train per day, 6 days per week, year-round at each location operating at restricted speed, as all track is FRA Class I (10 mph).
The petitioner believes that this locomotive can be safely operated throughout the industrial park and refinery with the current non-compliant safety-type glazing. The cost to the SMS for installation of all new window frames and compliant FRA Types I and II glazing is significant, with only a
All three locomotives are in reserve status, and only used when the regularly assigned locomotives are unavailable due to inspection or repair. SMS plans to upgrade the glazing in all three locomotives to compliant FRA Types I and II material as they are overhauled and repainted.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (i.e., Waiver Petition Docket Number FRA-2007-0007) and may be submitted by any of the following methods:
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Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Pursuant to Title 49 Code of Federal Regulations (CFR) Part 235 and 49 U.S.C. 20502(a), the following railroad has petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of the signal system or relief from the requirements of 49 CFR Part 236, as detailed below.
The R. J. Corman Railroad seeks approval of the proposed discontinuance and removal of two operative approach signals. The operative approach signals are located at each end of the R. J. Corman Railroad, Central Kentucky Line Old Road Subdivision, one approaching CSX Transportation's (CSXT) CP North Cabin, Milepost VB 113.8, Winchester, Kentucky, and one approaching CSXT's CP HK Tower, Milepost W12.5, Anchorage, Kentucky. Signal 1128 is located within yard limits, and is approaching North Cabin CP. Signal 131 is approaching HK Tower CP. It is proposed to replace each signal with a permanent fixed sign. The reason for the proposed changes is that present day operation does not warrant need or retention of operative approach signals.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number ( Docket No. FRA-2007-29295) and may be submitted by any of the following methods:
Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on certain information collections pertaining to hazardous materials transportation for which PHMSA intends to request renewal from the Office of Management and Budget (OMB).
Interested persons are invited to submit comments on or before January 29, 2008.
You may submit comments identified by the docket number (PHMSA-2007-27181) by any of the following methods:
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Requests for a copy of an information collection should be directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous Materials Standards (PHH-11), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., East Building, 2nd Floor, Washington, DC 20590-0001, Telephone (202) 366-8553.
Deborah Boothe or T. Glenn Foster, Office of Hazardous Materials Standards (PHH-11), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., East Building, 2nd Floor, Washington, DC 20590-0001, Telephone (202) 366-8553.
Section 1320.8(d), Title 5, Code of Federal Regulations requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies information collection requests that PHMSA will be submitting to OMB for renewal and extension. These information collections are contained in 49 CFR 171.6 and the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). PHMSA has revised burden estimates, where appropriate, to reflect current reporting levels or adjustments based on changes in proposed or final rules published since the information collections were last approved. The following information is provided for each information collection: (1) Title of the information collection, including former title if a change is being made; (2) OMB control number; (3) summary of the information collection activity; (4) description of affected public; (5) estimate of total annual reporting and recordkeeping burden; and (6) frequency of collection. PHMSA will request a three-year term of approval for each information collection activity and, when approved by OMB, publish notice of the approval in the
PHMSA requests comments on the following information collections:
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(1) Each meter prover must undergo and pass an external visual inspection annually to ensure that the meter provers used in the flow of liquid hazardous materials into bulk packagings are accurate and in conformance with the performance standards in the HMR.
(2) Each meter prover must undergo and pass a hydrostatic pressure test at least every five years to ensure that the meter provers used in the flow of liquid hazardous materials into bulk packagings are accurate and in conformance with the performance standards in the HMR.
(3) Each meter prover must successfully complete the test and inspection and must be marked in accordance with § 180.415(b) and in accordance with § 173.5a.
(4) Each owner must retain a record of the most recent visual inspection and pressure test until the meter prover is requalified.
Chicago Terminal Railroad (CTR), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to lease from the Soo Line Railroad Company d/b/a Canadian Pacific Railway (CPR) and to operate approximately 3.47 miles of track within the Bensenville Industrial Park, originating at and connecting to a switch at milepost B-2 along CPR's line of rail in Bensenville, IL.
CTR certifies that its projected annual revenues as a result of the transaction will not result in the creation of a Class II or Class I rail carrier and will not exceed $5 million.
The transaction is expected to be consummated on or after December 16, 2007, the effective date of the exemption (30 days after the exemption was filed).
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35101, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on John D. Heffner, 1750 K Street NW., Suite 350, Washington, DC 20006.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and continuing information collections, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507. The Office of Thrift Supervision within the Department of the Treasury will submit the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. Today, OTS is soliciting public comments on its proposal to extend this information collection.
Submit written comments on or before January 29, 2008.
Send comments, referring to the collection by title of the proposal or by OMB approval number, to Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552; send a facsimile transmission to (202) 906-6518; or send an e-mail to
You can request additional information about this proposed information collection from Patricia D. Goings, (202) 906-5668, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
Comments should address one or more of the following points:
a. Whether the proposed collection of information is necessary for the proper performance of the functions of OTS;
b. The accuracy of OTS'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;
d. Ways to minimize the burden of the information collection on respondents, including through the use of information technology.
We will summarize the comments that we receive and include them in the OTS request for OMB approval. All comments will become a matter of public record. In this notice, OTS is soliciting comments concerning the following information collection.
OTS analyzes each information collection to determine whether to approve the proposed application for a Federal charter
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and continuing information collections, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507. The Office of Thrift Supervision within the Department of the Treasury will submit the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, as required by the Paperwork
Submit written comments on or before January 29, 2008.
Send comments, referring to the collection by title of the proposal or by OMB approval number, to Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552; send a facsimile transmission to (202) 906-6518; or send an e-mail to
You can request additional information about this proposed information collection from Patricia D. Goings, (202) 906-5668, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
Comments should address one or more of the following points:
a. Whether the proposed collection of information is necessary for the proper performance of the functions of OTS;
b. The accuracy of OTS'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;
d. Ways to minimize the burden of the information collection on respondents, including through the use of information technology.
We will summarize the comments that we receive and include them in the OTS request for OMB approval. All comments will become a matter of public record. In this notice, OTS is soliciting comments concerning the following information collection.
OTS is required to make a determination as to the hiring or appointment of senior executive officers or directors at savings institutions or thrift holding companies. The OTS's determination must be based upon an evaluation of the individual's competence, experience, character, and integrity. The information required by the collection is necessary to make this determination. Without this information, the OTS cannot accomplish the statutory requirement designed to protect the interests of the Savings Association Insurance Fund.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The proposed information collection request (ICR) described below has been submitted to the Office of Management and Budget (OMB) for review and approval, as required by the Paperwork Reduction Act of 1995. OTS is soliciting public comments on the proposal.
Submit written comments on or before December 31, 2007. A copy of this ICR, with applicable supporting documentation, can be obtained from RegInfo.gov at
Send comments, referring to the collection by title of the proposal or by OMB approval number, to OMB and OTS at these addresses: Office of Information and Regulatory Affairs, Attention: Desk Officer for OTS, U.S. Office of Management and Budget, 725—17th Street, NW., Room 10235, Washington, DC 20503, or by fax to (202) 395-6974; and Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, by fax to (202) 906-6518, or by e-mail to
For further information or to obtain a copy of the submission to OMB, please contact Ira L. Mills at,
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before December 31, 2007.
Submit written comments on the collection of information through
Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, FAX (202) 273-0443 or e-mail
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before December 31, 2007.
Submit written comments on the collection of information through
Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, FAX (202) 273-0443 or e-mail
b. Request for Verification of Employment, VA Form 26-8497.
c. Request for Verification of Deposit, VA Form 26-8497a.
a. VA Form 26-1820 is completed by lenders closing VA guaranteed and insured loans under the automatic or prior approval procedures.
b. VA Form 26-8497 is used by lenders to verify a loan applicant's income and employment information when making guaranteed and insured loans. VA does not require the exclusive use of this form for verification purposes, any alternative verification document would be acceptable provided that all information requested on VA Form 26-8497 is provided.
c. Lenders making guaranteed and insured loans complete VA Form 26-
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
a. Report and Certification of Loan Disbursement, VA Form 26-1820—50,000 hours.
b. Request for Verification of Employment, VA Form 26-8497—16,667 hours.
c. Request for Verification of Deposit, VA Form 26-8497a—8,333 hours.
a. Report and Certification of Loan Disbursement, VA Form 26-1820—15 minutes.
b. Request for Verification of Employment, VA Form 26-8497—10 minutes.
c. Request for Verification of Deposit, VA Form 26-8497a—5 minutes.
a. Report and Certification of Loan Disbursement, VA Form 26-1820—200,000.
b. Request for Verification of Employment, VA Form 26-8497—100,000.
c. Request for Verification of Deposit, VA Form 26-8497a—100,000.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before December 31, 2007.
Submit written comments on the collection of information through
Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-7485, FAX (202) 273-0443 or e-mail
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
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission is proposing amendments to the form used by mutual funds to register under the Investment Company Act of 1940 and to offer their securities under the Securities Act of 1933 in order to enhance the disclosures that are provided to mutual fund investors. The proposed amendments, if adopted, would require key information to appear in plain English in a standardized order at the front of the mutual fund statutory prospectus. The Commission is also proposing rule amendments that would permit a person to satisfy its mutual fund prospectus delivery obligations under Section 5(b)(2) of the Securities Act by sending or giving the key information directly to investors in the form of a summary prospectus and providing the statutory prospectus on an Internet Web site. Upon an investor's request, mutual funds would also be required to send the statutory prospectus to the investor. The proposals are intended to improve mutual fund disclosure by providing investors with key information in plain English in a clear and concise format, while enhancing the means of delivering more detailed information to investors.
Comments should be submitted on or before February 28, 2008.
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 Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
Kieran G. Brown, Senior Counsel; Sanjay Lamba, Senior Counsel; Tara R. Buckley, Branch Chief; or Brent J. Fields, Assistant Director, Office of Disclosure Regulation, Division of Investment Management, at (202) 551-6784, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-5720.
The Securities and Exchange Commission (“Commission”) is proposing for comment amendments to rules 159A,
Millions of individual Americans invest in shares of open-end management investment companies (“mutual funds”),
Numerous commentators have suggested that investment information that is key to an investment decision should be provided in a streamlined document with other more detailed information provided elsewhere.
In addition, a mutual fund task force organized by the National Association of Securities Dealers, Inc. (“NASD”) supported the use of a “profile plus” document, on the Internet, that would include, among other things, basic information about a fund's investment strategies, risks, and total costs, with hyperlinks to additional information in the prospectus.
Similar opinions were voiced at a roundtable held by the Commission in June 2006, at which representatives from investor groups, the mutual fund industry, analysts, and others discussed how the Commission could change the mutual fund disclosure framework so that investors would be provided with better information. Significant discussion at the roundtable concerned the importance of providing mutual fund investors with access to key fund data in a shorter, more easily understandable format.
The roundtable participants also discussed the potential benefits of increased Internet availability of fund disclosure documents, which include, among other things, facilitating comparisons among funds and replacing “one-size-fits-all” disclosure with disclosure that each investor can tailor to his or her own needs.
We are proposing an improved mutual fund disclosure framework that is intended to provide investors with information that is easier to use and more readily accessible, while retaining the comprehensive quality of the information that is available today. The foundation of the proposal is the provision to all investors of streamlined and user-friendly information that is key to an investment decision. More detailed information would be provided both on the Internet and, upon an investor's request, in paper or by e-mail.
To implement this improved disclosure framework, we are proposing amendments to Form N-1A that would require every prospectus to include a summary section at the front of the prospectus, consisting of key information about the fund, including investment objectives and strategies, risks, costs, and performance. This key information has been identified by the participants in the roundtable, by investor research, and by a variety of commentators as information that is important to most investors in selecting mutual funds.
We are also proposing a new option for satisfying prospectus delivery obligations with respect to mutual fund securities under the Securities Act. Under the proposed option, key information would be sent or given to investors in the form of a summary prospectus (“Summary Prospectus”), and the statutory prospectus would be provided on an Internet Web site.
Today's proposals have the potential to revolutionize the provision of information to the millions of mutual fund investors who rely on mutual funds for their most basic financial needs. The proposals are intended to help investors who are overwhelmed by the choices among thousands of available funds described in lengthy and legalistic documents to readily access key information that is important to an informed investment decision. At the same time, by harnessing the power of technology to deliver information in better, more usable formats, the proposals can help those investors, their intermediaries, third party analysts, the financial press, and others to locate and compare facts and data from the wealth of more detailed disclosures that are available.
We are proposing amendments to Form N-1A that would require the statutory prospectus of every mutual fund to include a summary section at the front of the prospectus consisting of key information presented in plain English in a standardized order. This presentation is intended to address investors' preferences for concise, user-friendly information. The proposed summary section in a fund's prospectus would provide investors with key information about the fund that investors could use to evaluate and compare the fund. This summary would be located in a standardized, easily accessible place and would be available to all investors, regardless of whether the fund uses a Summary Prospectus and regardless of whether the investor is reviewing the prospectus in a paper or electronic format.
Our proposal builds upon the risk/return summary that is currently required at the front of every mutual fund prospectus.
We are, however, proposing to modify the front portion of the prospectus in two significant ways in order to make it more useful to investors. First, we are proposing to require that brief additional information be included in
Second, we are proposing to require that the summary information be presented separately for each fund covered by a multiple fund prospectus and that the information for multiple funds not be integrated.
The proposed requirement that summary information be separately presented for each fund in a multiple fund prospectus is intended to address the problem of lengthy, complex multiple fund prospectuses in the least intrusive manner possible. Multiple fund prospectuses contribute substantially to prospectus length and complexity, which act as barriers to investor understanding. Rather than eliminate altogether the ability to use multiple fund prospectuses, which could have more significant cost and other implications than our proposal, we concluded that it was preferable to propose to require a self-contained summary section for each fund.
The Commission is committed to encouraging statutory prospectuses that are simpler, clearer, and more useful to investors. The proposed prospectus summary section is intended to provide investors with streamlined disclosure of key mutual fund information at the front of the statutory prospectus, in a standardized order that facilitates comparisons across funds. We are proposing the following amendments to Form N-1A in order to implement the summary section.
We are proposing amendments to the General Instructions to Form N-1A to address the proposed new summary section of the statutory prospectus. These proposed amendments address plain English and organizational requirements.
We propose to amend the General Instructions to state that the summary section of the prospectus must be provided in plain English under rule 421(d) under the Securities Act.
We are also proposing amendments to the organizational requirements of the General Instructions. The proposals would require mutual funds to disclose the summary information in numerical order at the front of the prospectus and not to precede this information with any information other than the cover page or table of contents.
As noted above, we are also proposing that a multiple fund prospectus be required to present all of the summary information for each fund sequentially and not integrate the information for more than one fund.
As is the case with the current risk/return summary, the proposed instructions would permit a fund with multiple share classes, each with its own cost structure, to present the summary information separately for each class, to integrate the information for multiple classes, or to use another presentation that is consistent with disclosing the summary information in a standard order at the beginning of the
Finally, we are proposing to eliminate the provisions of Form N-1A that permit a fund to omit detailed information about purchase and redemption procedures from the prospectus and to provide this information in a separate document that is incorporated into and delivered with the prospectus.
• Are the proposed revisions to the General Instructions appropriate? Will they be helpful in encouraging prospectus summary sections that address investors' preferences for concise, user-friendly information?
• Should we amend the General Instructions to Form N-1A in other respects? For example, should we impose any formatting requirements on the summary section of the prospectus, such as limitations on page length (
• Is it appropriate to prohibit a fund from including information in the summary section that is not required?
• Are the proposed requirements for the order of information appropriate? Will they contribute to more readable prospectuses and summary information that is easy to evaluate and compare?
• Is it helpful for the prospectus to have a separate summary section?
• Are the requirements with respect to multiple fund and multiple class prospectuses appropriate? Should we prohibit multiple fund or multiple class prospectuses altogether? Should we provide greater or lesser flexibility in the presentation of multiple fund or multiple class prospectuses? If we permit greater flexibility, how can we do so consistent with the goal of achieving concise, readable summaries? For example, if we permit integrated multiple fund summary presentations for some or all funds, should we also impose a maximum page limit on a summary section that integrates the information for multiple funds?
• Should we eliminate or otherwise modify the optional separate purchase and redemption document? What, if any, purpose will this option serve if we adopt the new Summary Prospectus?
• Are there alternatives we should consider that would achieve our goal of providing enhanced disclosures to investors in a more cost effective manner?
The summary section of a mutual fund statutory prospectus would consist of the following information: (1) Investment objectives; (2) costs; (3) principal investment strategies, risks, and performance; (4) top ten portfolio holdings; (5) investment advisers and portfolio managers; (6) brief purchase and sale and tax information; and (7) financial intermediary compensation. This information is largely drawn from the current risk/return summary and fund profile.
Like the current risk/return summary, the proposed summary section would begin with disclosure of a fund's investment objectives or goals. A fund also would be permitted to identify its type or category (
The fee table and example, which are drawn from the current risk/return summary and which disclose the costs of investing, would immediately follow the fund's investment objectives.
We are proposing to move the fee table forward from its current location, which follows information about investment strategies, risks, and past performance. Contrary to our intent in including the fee table in the risk/return summary, this information has sometimes appeared fairly deep within the prospectus, particularly in multiple fund prospectuses covering a large number of funds. The proposed change to the location of the fee table, together with the proposed requirement that the summary section for each fund be provided separately, should serve to enhance the prominence of the cost information. The fee table and example are designed to help investors understand the costs of investing in a fund and to compare those costs with the costs of other funds. Placing the fee table and example at the front of the summary information reflects the importance of costs to an investment decision.
We are proposing several additional amendments to the fee table that are intended to improve the disclosure that investors receive regarding fees and expenses of the fund. First, we are proposing that mutual funds that offer discounts on front-end sales charges for volume purchases (so-called “breakpoint discounts”) include brief narrative disclosure alerting investors to the availability of those discounts.
Second, we are proposing to revise the heading “Annual Fund Operating Expenses” in the fee table. Specifically, we propose to revise the parenthetical following the heading to read “ongoing expenses that you pay each year as a percentage of the value of your investment” in place of “expenses that are deducted from Fund assets.” In recent years, we have taken significant steps to address concerns that investors do not understand that they pay ongoing costs every year when they invest in mutual funds, including requiring disclosure of ongoing costs in shareholder reports.
Third, for funds other than money market funds, the proposal would require the addition of brief disclosure regarding portfolio turnover immediately following the fee table example.
Finally, we are proposing to amend the requirement that a fund disclose in its fee table gross operating expenses that do not reflect the effect of expense reimbursement or fee waiver arrangements, which result in reduced expenses being paid by the fund.
To address these issues, we are proposing to permit a fund to place two additional captions directly below the “Total Annual Fund Operating Expenses” caption in cases where there were expense reimbursement or fee waiver arrangements that reduced fund operating expenses and that will continue to reduce them for no less than one year from the effective date of the fund's registration statement.
Following the fee table and example, we are proposing that a fund disclose its principal investment strategies and risks,
The proposed summary section would next need to include a list of the 10 largest issues contained in the fund's portfolio, in descending order, together with the percentage of net assets represented by each.
Mutual funds would be required to provide their top 10 portfolio holdings as of the end of the most recent calendar quarter.
We are proposing an exclusion to the requirement to list the top 10 holdings that is similar to an exclusion in the current requirements for quarterly disclosure of a fund's complete portfolio holdings.
Under the proposal, in listing the top 10 holdings, any securities that would be required to be listed separately or included in a group of securities that is listed in the aggregate as a single issue could be listed in one amount as “Miscellaneous securities,” provided that the securities so listed are eligible to be categorized by the fund as “Miscellaneous securities” in a complete portfolio schedule dated as of the end of the most recent calendar quarter. However, if any security that is included in “Miscellaneous securities” would otherwise be required to be included in a group of securities that is listed in the aggregate as a single issue in the top 10 portfolio holdings, the remaining securities of that group must nonetheless be listed in the top 10 portfolio holdings, even if the remaining securities alone would not otherwise be required to be listed in this manner (
The next item in the proposed prospectus summary section would be the name of each investment adviser and sub-adviser of the fund, followed by the name, title, and length of service of the fund's portfolio managers.
As in the current profile, a fund would not be required to identify a sub-adviser whose sole responsibility is limited to day-to-day management of the fund's cash instruments unless the fund is a money market fund or other fund with a principal investment strategy of regularly holding cash instruments.
The proposed summary section would next disclose the fund's minimum initial or subsequent investment requirements and the fact that the fund's shares are redeemable, and would identify the procedures for redeeming shares (
Our proposals would require a mutual fund to state, as applicable, that it intends to make distributions that may be taxed as ordinary income or capital gains or that the fund intends to distribute tax-exempt income. A fund that holds itself out as investing in securities generating tax-exempt income would be required to provide, as applicable, a general statement to the effect that a portion of the fund's
The proposed summary section of the prospectus would conclude with the following statement, which could be modified provided that the modified statement contains comparable information.
“
If you purchase the Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may influence the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary's Web site for more information.”
• Does the proposed summary section encourage prospectuses that are simpler, clearer, and more useful to investors? Would the proposed summary section help investors to better compare funds?
• Should each of the proposed items be included in the summary section? Should any additional disclosure items currently required in Form N-1A be included in the summary section? Should we consider disclosure items that are not currently in Form N-1A? If so, what types of additional disclosures should we consider including in the summary section?
• How would the required narrative explanations of various items contribute to readability and length of the summary section? Should each of these explanations be required, permitted, or prohibited in the summary section? Should any of these explanations be required to appear in the prospectus, but outside the summary section?
• Is the proposed order of the information appropriate, or should it be modified? If so, how should it be modified?
• Should we also require a fund to disclose whether its objective may be changed without shareholder approval in the summary section?
• Are our proposed revisions to the fee table and example appropriate? Are there any other revisions to the fee table or example that we should consider?
• Is the proposed disclosure at the beginning of the fee table regarding discounts on front-end sales charges for volume purchases (
• Should we consider any other revisions to headings in the fee table to make them more understandable to investors? For example, should the terms “load” or “12b-1” be eliminated? Do investors generally understand these terms, or are there clearer terms that we should require?
• How, if at all, should expense reimbursement and fee waiver arrangements be reflected in the fee table and expense example and accompanying disclosures?
• Should funds be required to disclose the detailed fee table information in the summary section or would it be more useful to investors to require disclosure of total shareholder fees and total annual fund operating expenses in the summary section and require disclosure of the detailed fee table outside the summary section? Are there any details regarding fund fees or expenses that should be included only outside the summary section? For example, the fee table currently permits “Other Expenses” to be subdivided into no more than three subcaptions that identify the largest expense or expenses comprising “Other Expenses.”
• Are there any revisions to the fee table example that would make it more useful for investors? For example, should the fee table example separately break out one-time charges, such as sales loads, and recurring expenses, such as management and 12b-1 fees? Should the required narrative explanation of the purpose of the fee table example be modified or eliminated?
• Should the proposed disclosure regarding a fund's portfolio turnover rate be included in the summary section? Should the proposed portfolio turnover narrative disclosure be modified or should funds be required to disclose their portfolio turnover in the summary section without any narrative explanation? Should any additional information regarding a fund's portfolio turnover rate be required to be disclosed as part of the summary section, for example, information about a fund that engages in active and frequent trading of portfolio securities and the tax consequences to shareholders and effects on fund performance of increased portfolio turnover?
• Should we consider any revisions to the bar chart or table disclosing a fund's returns? For example, should we modify or eliminate the required explanation that this information illustrates the variability of a fund's returns?
• Are there additional performance measures, such as past performance adjusted for the impact of inflation, that
• Should we require disclosure regarding portfolio holdings in the summary section? If so, what information should be required,
• Would the proposed exception to the requirement to list the top 10 holdings that would permit a fund to list an amount not exceeding five percent of the total value of the portfolio holdings in one amount as “Miscellaneous securities” adequately guard against the premature release of certain positions that could lead to front-running and other predatory trading practices? If not, what other protections would be necessary? Is the “Miscellaneous securities” exception necessary and appropriate?
• Should we require funds to present tables, charts, or graphs that depict portfolio holdings by reasonably identifiable categories (
• Should, as proposed, a fund having three or more sub-advisers be required to identify only those sub-advisers that are (or are reasonably expected to be) responsible for the management of a significant portion of the fund's net assets? Are there situations where this would result in the disclosure of no sub-advisers and, if so, would this be appropriate? Should we, as proposed, provide that a “significant portion” of a fund's net assets generally would be deemed to be 30% or more of a fund's net assets? Should a higher or lower percentage or some other measure or standard be used?
• Should any or all of the information that we propose to require in the summary section regarding the purchase and sale of fund shares be permitted rather than required? Should any of this information be prohibited from being included in the summary section?
• Should any additional information regarding the purchase and sale of fund shares be required to be disclosed in the summary section? For example, should information regarding policies and procedures with respect to frequent purchases and redemptions of fund shares be disclosed in the summary, or is it appropriate to maintain the location of this information elsewhere in the prospectus?
• Is there any additional tax information that should be included in the summary section?
• Should we require disclosure regarding the compensation of broker-dealers, banks, and other financial intermediaries in the summary section? Should we permit this disclosure to be omitted or modified in any context? For example, should a fund be permitted to omit this disclosure if the fund is marketed directly to investors or where a transaction is initiated by an investor and not on the basis of a financial intermediary's recommendation? Should funds be permitted to modify this disclosure to reflect the fact that some transactions may be initiated by an investor and not on the basis of a financial intermediary's recommendation?
• In addition or as an alternative to directing customers to ask salespersons or visit a financial intermediary's Web site for more information about intermediary compensation, should the summary prospectus direct customers to other sources of information? Do all financial intermediaries that distribute mutual funds have Internet Web sites? Is information typically available on the Web sites of financial intermediaries? Should the Commission require that such information be made available on intermediaries' Web sites?
• Should we require or permit a fund to include its ticker symbol in the summary section? Alternatively, should we require or permit a fund to include its ticker symbol on the front or back cover page of the statutory prospectus or SAI or elsewhere in those documents?
The proposed amendments to Form N-1A would require adding new items to the form and revising and renumbering certain existing items. We are proposing conforming amendments to Form N-1A in order to update the table of contents and the various references to Form N-1A items contained within the form. We are also proposing technical amendments to Form N-1A to update the Commission's telephone number and address.
The Commission is proposing to replace rule 498, the current voluntary profile rule, with a new rule that would permit the obligation under the Securities Act to deliver a statutory prospectus with respect to mutual fund securities to be satisfied by sending or giving a Summary Prospectus and providing the statutory prospectus online. In addition, the new rule would require a fund to send the statutory prospectus in paper or by e-mail upon request. The Summary Prospectus would be required to contain the key information that is included in the new summary section of the statutory prospectus in the same order that would be required in the statutory prospectus. As discussed above, the proposal is intended to take advantage of technological developments and the expanded use of the Internet in order to provide investors with information that is easier to use and more readily accessible, while retaining the comprehensive quality of the information that is available to investors today. The proposal provides for a layered approach to disclosure in which key information is sent or given to the investor and more detailed information is provided online and, upon request, is sent in paper or by e-mail.
The proposed new rule would provide that any obligation under Section 5(b)(2) of the Securities Act
The proposed rule also would provide that a communication relating to an offering registered on Form N-1A that is sent or given after the effective date of a mutual fund's registration statement (other than a prospectus permitted or required under Section 10 of the Securities Act) shall not be deemed a prospectus under Section 2(a)(10) of the Securities Act if (1) it is proved that prior to or at the same time with the communication a Summary Prospectus was sent or given to the person to whom the communication was made; and, if any other materials accompany the Summary Prospectus, the Summary Prospectus is given greater prominence than those materials and is not bound together with any of those materials; (2) the Summary Prospectus that was sent or given satisfies the rule's requirements at the time of the communication; and (3) the conditions set forth in the rule, which require a fund to provide the statutory prospectus and other information on the Internet in the manner specified in the rule, are satisfied.
The current proposal is intended to create a disclosure regime that is tailored to the unique needs of mutual fund investors in a manner that provides ready access to the information that investors need, want, and choose to review in connection with a mutual fund purchase decision. In crafting this proposal, the Commission has drawn upon recent initiatives that have harnessed technology in order to provide investors with better access to information.
• Should we permit mutual funds to meet their prospectus delivery obligations in the manner provided in the proposed rule? Does this approach adequately protect investors and provide them with material information about the fund? Does the proposed approach adequately protect investors who have no Internet access or limited Internet access or who prefer not to receive information about mutual fund investments over the Internet? Should we make any other changes with respect to prospectus delivery obligations?
• Are there other approaches that would provide mutual fund investors with key information in a user-friendly format?
• Should we permit mutual funds to meet their prospectus delivery obligations by filing with the Commission and/or by posting online without giving or sending a Summary Prospectus?
• Should mutual fund investors have the ability to opt out of the rule
• Should we require that the Summary Prospectus be given greater prominence than other materials that accompany the Summary Prospectus and that the Summary Prospectus not be bound together with any of those materials? Are any clarifications of these requirements needed? Are the requirements workable in all situations? Should we permit a Summary Prospectus to be included within a newspaper or magazine? Should we impose additional requirements to encourage the prominence and separateness of a Summary Prospectus, when provided in paper, at an Internet Web site, or by e-mail, such as requiring that the Summary Prospectus be at the top of a list of documents provided electronically or on top of a group of documents provided in paper?
The proposed rule sets forth the content requirements that a Summary Prospectus must satisfy.
The proposal generally would require the Summary Prospectus to include the same information as the summary section of the statutory prospectus in the same order as would be required in the statutory prospectus.
The Summary Prospectus would not be permitted to omit any of the required information or to include additional information except as described below. A document that omits information required in a Summary Prospectus or includes additional information not permitted by the rule would not be a Summary Prospectus under the proposed rule and could not be used under the proposed rule for any purpose, including meeting the obligation to deliver a fund's statutory prospectus.
In addition, a Summary Prospectus would be permitted to describe only one fund, but could describe multiple classes of a single fund.
The proposed Summary Prospectus would be required to include the following information on the cover page or at the beginning of the Summary Prospectus:
• The fund's name and the share classes to which the Summary Prospectus relates;
• A statement identifying the document as a “Summary Prospectus”; and
• The approximate date of the Summary Prospectus's first use.
“Before you invest, you may want to review the Fund's prospectus, which contains more information about the Fund and its risks. You can find the Fund's prospectus and other information about the Fund online at [______]. You can also get this information at no cost by calling [______] or by sending an e-mail request to [______].”
The legend would be required to provide an Internet address, toll free (or collect) telephone number, and e-mail address that investors can use to obtain the statutory prospectus and other information.
The proposed Summary Prospectus rule, similar to the current voluntary profile rule, would require that average annual total returns and yield be provided as of the end of the most recent calendar quarter prior to the Summary Prospectus's first use.
The proposed Summary Prospectus rule also would require the top 10 portfolio holdings information to be provided as of the end of the most recent calendar quarter prior to the Summary Prospectus's first use or the immediately prior calendar quarter if the most recent calendar quarter ended less than one month prior to the Summary Prospectus's first use.
The Commission is proposing to require quarterly updating of performance and portfolio holdings information in the Summary Prospectus because we believe that providing updated information in a concise, summary document may contribute significantly to the usefulness of the document to investors and their financial intermediaries. A fund could reflect the updated performance and portfolio holdings information in the Summary Prospectus by affixing a label or sticker, or by other reasonable means, and would not be required to reprint the Summary Prospectus each quarter.
Notwithstanding the quarterly updating requirements, the proposed rule would provide that, for purposes of satisfying a fund's prospectus delivery obligations, a Summary Prospectus that satisfies the requirements of the rule at the time it is sent or given shall be deemed to continue to satisfy those requirements until the earlier of the date on which (1) the information in the Summary Prospectus is required to be updated for any purpose other than the required quarterly updates to the portfolio holdings and performance information; or (2) the fund is required to file an annual updating amendment to its registration statement for the purpose of updating its statutory prospectus to satisfy the requirements of Section 10(a)(3) of the Securities Act.
• Should the Summary Prospectus be required to include the same information as the summary section of the statutory prospectus in the same order as required in the statutory prospectus? Should any of the information that we propose to require in the Summary Prospectus not be required? Should any additional information, such as additional information from the statutory prospectus, SAI, or annual or semi-annual report, be required to be included in the Summary Prospectus?
• Should we, as proposed, prohibit the Summary Prospectus from including information that is not explicitly permitted? What effect would this prohibition have on the length, usability, and completeness of a Summary Prospectus? If we include this prohibition, should we make any exceptions to the prohibition?
• Should we restrict the number of funds or share classes that may be included in a Summary Prospectus? Would including multiple funds in a Summary Prospectus make it too long and confusing, and would it decrease the likelihood that investors would use the Summary Prospectus? Or would including multiple funds in a Summary Prospectus contribute to investors'
• Is the information that we propose to require on the cover page or at the beginning of the Summary Prospectus appropriate? Should we include any additional information or eliminate any of the information that we have proposed to include?
• Is the proposed legend sufficient to notify investors of the availability and significance of the statutory prospectus and other information about the fund and how to obtain this information? Should the legend include greater detail about the information that is available? Will the legend adequately inform investors of the various means for obtaining additional information about a fund? Are the proposed requirements for the Web site address where additional information is available adequate to ensure that the Web site and the additional information will be easy to locate?
• Should we require or permit a fund to include its ticker symbol in the Summary Prospectus? If so, where should such information be included (
• Will a one-month lag in reporting top 10 portfolio holdings sufficiently protect against potential dangers to shareholders, such as the dangers of front-running? Would a shorter or longer delay be more appropriate?
• Should we require the performance and portfolio holdings information in the Summary Prospectus to be updated quarterly? How would the inclusion of performance and portfolio holdings information that is not updated quarterly affect the usefulness of a Summary Prospectus to investors? How would the inclusion of performance and portfolio holdings information that is not updated quarterly affect investors' perceptions of the Summary Prospectus and investors' interest in reviewing the information in the Summary Prospectus?
• Would semi-annual updating of performance and portfolio holdings information in the Summary Prospectus be more appropriate or should we require annual updating only?
• Would any concerns relating to investor confusion, liability, or other matters arise from requiring quarterly updating of performance and portfolio holdings information in the Summary Prospectus but not in the statutory prospectus? Have any such concerns resulted in practice for funds that currently use the voluntary profile, where performance information is required to be updated on a quarterly basis, but such information is not required to be updated quarterly in the statutory prospectus?
• If we require quarterly or semi-annual updating of performance and portfolio holdings information in the Summary Prospectus, should we also require this information to be updated quarterly or semi-annually in the statutory prospectus?
• What, if any, burdens would be associated with the requirement for quarterly updating of performance and portfolio holdings information? Would any burdens be reduced due to the availability of “on demand” printing technologies in which copies of documents are printed only as needed? How would any such burdens differ from those associated with quarterly updates to sales materials that include performance information, which funds routinely undertake today? If we require quarterly updating, how can we minimize any associated burdens?
• Should the rule require funds to provide quarterly updated performance and portfolio holdings information on an Internet Web site and/or on a toll-free telephone line instead of updating the Summary Prospectus quarterly? If so, should the Summary Prospectus be required to disclose the availability of the updated information? Would the addition of a legend to this effect, and the elimination of the updated information, affect the usefulness and perceived usefulness of the Summary Prospectus to investors, as well as their willingness to read and use the Summary Prospectus?
• Would it be appropriate for the proposed rule to deem a previously provided Summary Prospectus to be current notwithstanding subsequent quarterly updates to performance and portfolio holdings information? If we require quarterly updating, should we include any additional safe harbors or provide for a cure provision in cases where a Summary Prospectus that lacks a required quarterly update has been inadvertently distributed?
In addition to sending or giving a Summary Prospectus, a person that decides to rely on the proposed rule to meet its statutory prospectus delivery obligations with respect to a mutual fund's securities would be required to provide the statutory prospectus itself on the Internet, together with other information, in the manner specified by the rule.
Under the proposal, the statutory prospectus and other information would be required to be provided through the Internet as follows. The fund's current Summary Prospectus, statutory prospectus, SAI, and most recent annual and semi-annual reports to shareholders would be required to be accessible, free of charge, at the Web site address specified on the cover page or at the beginning of the Summary Prospectus.
We are proposing to require that the information on the Internet be presented in a format that:
• Is convenient for both reading online and printing on paper;
• permits persons accessing the statutory prospectus or SAI to move directly back and forth between the table of contents in that document and each section of that document referenced in the table of contents;
• permits persons accessing the Summary Prospectus to move directly back and forth between each section of the Summary Prospectus and (A) any section of the statutory prospectus and SAI that provides additional detail concerning that section of the Summary Prospectus; or (B) tables of contents in the statutory prospectus and SAI that prominently display the sections within those documents that provide additional detail concerning information contained in the Summary Prospectus.
In addition, persons accessing the Web site must be able to permanently retain, through downloading or otherwise, free of charge, an electronic version of the Summary Prospectus, statutory prospectus, SAI, and shareholder reports in a format that meets the first two requirements enumerated in the preceding paragraph.
Compliance with all of the conditions in the proposed rule regarding Internet posting would be required in order to meet prospectus delivery obligations under Section 5(b)(2) of the Securities Act. Failure to comply with any of the conditions would be a violation of Section 5(b)(2) unless the fund's statutory prospectus is delivered by means other than reliance on the rule. The Commission recognizes, however, that there may be times when, due to system outages or other technological issues, a fund is temporarily not in compliance with the Internet posting requirements of the rule, despite the fund's best efforts. For that reason, the proposed rule includes a safe harbor provision stating that the conditions regarding Internet availability of a fund's Summary Prospectus, statutory prospectus, SAI, and shareholder reports would be deemed to be met, notwithstanding the fact that those materials are not available for a time in the manner required, provided that the fund has reasonable procedures in place to ensure that those materials are available in the required manner. In addition, a fund would be required to take prompt action to ensure that those materials become available in the manner required, as soon as practicable following the earlier of the time at which the fund knows or reasonably should have known that the documents are not available in the manner required.
The Commission believes that every investor in a fund taking advantage of the proposed prospectus delivery regime should be permitted to choose whether to review a fund's information on the Internet or whether to receive that information directly, either in paper or through an e-mail. For that reason, the proposed rule would require that a fund (or financial intermediary through which shares of the fund may be purchased or sold) send, at no cost to the requestor and by U.S. first class mail or other reasonably prompt means, a paper copy of the fund's statutory prospectus, SAI, and most recent annual and semi-annual shareholder report to any person requesting such a copy within three business days after receiving a request for a paper copy. Similarly, a fund (or financial intermediary through which shares of the fund may be purchased or sold) would also be required to send, at no cost to the requestor and by e-mail, an electronic copy of the fund's statutory prospectus, SAI, and most recent annual and semi-annual shareholder report to any person requesting such a copy within three business days after receiving a request for an electronic copy.
The requirement that a fund send a paper or electronic copy of the statutory prospectus, SAI, and most recent annual and semi-annual shareholder reports, as applicable, to a person requesting such a copy would not be a condition to reliance on the rule to satisfy a fund's delivery obligations under Section 5(b)(2) of the Securities Act or the provision that a communication shall not be deemed a prospectus under Section 2(a)(10) of the Securities Act. A person that complied with all other aspects of the proposed rule would not violate Section 5(b)(2) of the Securities Act if the fund failed to send the required paper or electronic copy of the statutory prospectus, SAI, or most recent shareholder reports. This failure would, however, constitute a violation of the Commission's rules.
• Should we permit the fund's current statutory prospectus and other information to be provided in the manner specified in the proposed rule? For what period of time should persons relying on the rule be required to retain this information on an Internet Web site?
• Should we require that the information on the Internet Web site be
• Are the proposed requirements regarding the ability to move back and forth within the statutory prospectus and the SAI from the table of contents to relevant sections, and between the Summary Prospectus, statutory prospectus, and SAI appropriate and useful? Would it be difficult or expensive for funds to comply with these requirements? Will these requirements help investors to navigate effectively within and between these documents and contribute to a more useful presentation of information than is possible through paper documents?
• Are there steps that the Commission should take to enhance the accessibility to the general public of fund Summary Prospectuses, statutory prospectuses, and other information that would be provided on an Internet Web site pursuant to the proposed rule? How can we enhance the availability of this information to investors, intermediaries, analysts, and others who are researching funds?
• What steps can the Commission take to enhance electronically provided documents? Should we require funds to tag any of the information in the Summary Prospectus or statutory prospectus using the eXtensible Business Reporting Language (“XBRL”) taxonomy that was recently developed by the Investment Company Institute and is being used in the Commission's voluntary data tagging program?
• Should we require that persons accessing the Web site at which the required documents are posted must be able to permanently retain, through downloading or otherwise, free of charge, an electronic version of such documents? Should we require that documents downloaded from the Internet Web site must retain links that enable a user to move readily within a single document, as proposed? Would this proposed requirement present any technological difficulties? Should we also require that downloaded documents retain links that enable a user to move readily between related passages of multiple documents? Would it be technologically feasible to meet such a requirement? What would the costs be of complying with requirements that downloaded documents retain links, either within a single document or between related passages of multiple documents?
• Does the proposed rule appropriately address the possibility of inadvertent technological problems that may arise from time to time when information is provided electronically? Should funds having technological issues be required to disclose on the Web site that the information was not available for a time in the manner required and explain the reasons for the failure to comply? If so, how long should such information be required to be retained on the Web site? Should funds that are not able to comply for a prolonged period, perhaps a week or more, due to technological issues, or that are not able to comply repeatedly over a long period due to such reasons, be required to notify the Commission and/or investors?
• Are the requirements for sending the statutory prospectus, SAI, and annual and semi-annual shareholder reports in paper and electronically appropriate? Should funds be required to send a paper or electronic copy of the fund's statutory prospectus, SAI, and most recent annual and semi-annual shareholder report to any person requesting such a copy within three business days after receiving a request for a copy? Would a longer or shorter period be appropriate? Will these requirements, together with the requirements for providing information on the Internet, as well as the proposed Summary Prospectus, enhance investors' ability to access, understand, and use the information that they receive?
• Should the requirements to send the statutory prospectus, SAI, and shareholder reports be a condition to reliance on the rule? Should failure to comply with these requirements result in a violation of Section 5(b)(2) of the Securities Act? Alternatively, should the failure to comply with these requirements be a violation of Commission rules that does not result in an inability to rely on the rule or a violation of Section 5(b)(2)?
• Should we require funds or other persons that use the proposed prospectus delivery regime to retain any additional records beyond those required by our current rules? Should we expressly require those persons to retain proof that the statutory prospectus, SAI, and annual and semi-annual reports were available on the Internet as required by the rule and records of the dates that documents were requested, along with the dates such documents were sent?
The proposed rule would permit a fund to incorporate by reference into the Summary Prospectus information contained in its statutory prospectus and SAI, as well as any information from its most recent shareholder report, subject to the conditions described below.
Incorporation by reference of information from a fund's statutory prospectus, SAI, and shareholder report would be permitted only if the fund satisfies the conditions described in Section II.B.3, above, which prescribe the means by which the incorporated information is provided to investors.
We are proposing to permit incorporation by reference in the Summary Prospectus in order to further our goal of creating a layered disclosure regime. The proposed rule requires provision to investors of all of the information in the Summary Prospectus, statutory prospectus, SAI, and shareholder reports. By using multiple means to provide this information and using technology to provide information in a layered format, the proposal is intended to facilitate investors' ability to effectively choose to review the particular information in which they are interested. Indeed, each investor in a fund taking advantage of the proposed prospectus delivery regime can also choose the particular means of receiving information because all of the information will be required to be promptly sent to any requesting investor in paper or electronically. We are proposing to permit incorporation by reference in the Summary Prospectus of the statutory prospectus, SAI, and information from the fund's most recent shareholder report because, under the proposal, these documents would be provided at the same time, though by different means.
Our determination to propose to permit incorporation of information into the Summary Prospectus is different from the determination we made with respect to the profile and is made in light of technological advances that have occurred during the intervening years. When the Commission adopted the profile almost 10 years ago, it did not permit incorporation by reference of the statutory prospectus into the profile and stated its belief that allowing this incorporation would be inconsistent with the purpose of the profile and not in the public interest. The Commission noted that the profile was designed to provide summary information about a fund in a self-contained format and that permitting incorporation by reference of the statutory prospectus would be inconsistent with the profile being a self-contained document.
By contrast, we do not intend the Summary Prospectus to be a self-contained document, but rather one element in a layered disclosure regime that results in the simultaneous provision of information to investors through multiple means. Indeed, we intend the Summary Prospectus to provide investors with better, more usable access to the information in the statutory prospectus, SAI, and shareholder reports than they have today. The expansion in Internet access and the strides in the speed and quality of Internet connections since the profile rule was adopted in 1998 have made this possible.
Proposed rule 498 would provide that, for purposes of rule 159 under the Securities Act,
Under Section 12(a)(2) of the Securities Act, sellers have liability to purchasers for offers or sales by means of a prospectus or oral communication that includes an untrue statement of material fact or omits to state a material fact that makes the statements made, based on the circumstances under which they were made, not misleading. Securities Act Section 17(a)(2) is a general antifraud provision which makes it unlawful for any person in the offer and sale of a security to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
As we have previously stated, we interpret Section 12(a)(2) and Section 17(a)(2) as meaning that, for purposes of assessing whether at the time of sale (including a contract of sale) a prospectus or oral communication or statement includes or represents a material misstatement or omits to state a material fact necessary in order to make the prospectus, oral communication, or statement, in light of the circumstances under which it was
Proposed rule 498 provides that, for purposes of rule 159 (and therefore for purposes of Sections 12(a)(2) and 17(a)(2)), information is conveyed to a person not later than the time that a Summary Prospectus is received by the person if the information is incorporated by reference into the Summary Prospectus in accordance with the proposed rule. For purposes of Sections 12(a)(2) and 17(a)(2), whether or not information has been conveyed to an investor at or prior to the time of the contract of sale is a facts and circumstances determination.
Proposed rule 498 addresses one particular set of facts and circumstances under rule 159 and does not address any other situations. For purposes of Sections 12(a)(2) and 17(a)(2), whether or not information has been conveyed to an investor at or prior to the time of the contract of sale remains a facts and circumstances determination. Proposed rule 498 does not address any facts and circumstances relating to operating companies or any other issuers that are not mutual funds, nor does it address any information other than information incorporated by reference into a mutual fund Summary Prospectus in accordance with the proposed rule.
The Commission believes that a person that provides investors with a mutual fund Summary Prospectus in good faith compliance with the proposed rule would be able to rely on Section 19(a) of the Securities Act
• Does the proposed rule provide adequate means of providing investors with the information in the Summary Prospectus, statutory prospectus, SAI, and shareholder reports? Will these means result in more or less effective provision of information than our current rules require? Do these means of providing information adequately protect investors?
• Should we permit a fund to incorporate by reference into the proposed Summary Prospectus any or all of the information contained in its statutory prospectus and SAI and any or all of the information from the fund's most recent shareholder report? Is there any other information that should be permitted to be incorporated by reference into the proposed Summary Prospectus?
• Should we permit a fund to incorporate by reference into the proposed Summary Prospectus any of the information that is required to be included in the Summary Prospectus?
• Should we require materials that are incorporated by reference into the Summary Prospectus to be available online in the manner described in Section II.B.3 above? Are there any additional conditions that we should impose on the ability to incorporate by reference into the Summary Prospectus? Should satisfaction of the requirement to send a paper or electronic copy of materials incorporated by reference be a condition to the ability to incorporate by reference or should we, as proposed, provide that failure to satisfy this requirement is a rule violation that does not affect the ability to incorporate by reference?
• Is the proposal relating to rule 159 appropriate? Should conveyance of information incorporated in the Summary Prospectus be tied to the time of receipt of the Summary Prospectus, the time that the Summary Prospectus is sent or given, or some other time? Does proposed rule 498 adequately ensure that information incorporated by reference into a Summary Prospectus will have been effectively conveyed to a person who receives the Summary Prospectus? Does the proposal relating to rule 159 provide sufficient clarity regarding the effect of incorporation by reference into a Summary Prospectus and the impact on liability of using a Summary Prospectus?
The Commission is proposing to require each Summary Prospectus to be filed with the Commission on EDGAR
Section 10(b) of the Securities Act provides that a prospectus permitted under that section shall, unless provided otherwise by Commission rule, be filed as part of the registration statement but shall not be deemed part of the registration statement for the purposes of Section 11 of the Securities Act.
• Should we require pre-use filing of the Summary Prospectus? Should we require post-use filing?
• Should the Summary Prospectus be filed as part of the registration statement and be subject to the stop order and other administrative provisions of Section 8 of the Securities Act? Should the Summary Prospectus be subject to Section 11 liability? Would investors be adequately protected under the proposed rule, or should we provide additional investor protections?
We are proposing the following conforming amendments to rule 482 under the Securities Act, the investment company advertising rule, to reflect the proposed Summary Prospectus and the proposed elimination of the voluntary profile.
• The scope section of rule 482 would be revised to clarify that the rule does not apply to a Summary Prospectus or to a communication that, pursuant to proposed rule 498, is not deemed a “prospectus” under section 2(a)(10) of the Securities Act.
• For funds using the Summary Prospectus, the legend required in a rule 482 advertisement regarding the availability of the statutory prospectus would be required to include references to the Summary Prospectus.
• The provision addressing the use of rule 482 advertisements together with a profile that includes an application to purchase shares is deleted as unnecessary.
If the proposed amendments to Form N-1A are adopted, the Commission expects to provide for a transition period after the effective date in order to give funds sufficient time to prepare their registration statements under the amendments. If we adopt the proposed amendments to Form N-1A, we expect to require all initial registration statements on Form N-1A, and all post-effective amendments that are annual updates to effective registration statements on Form N-1A, filed six months or more after the effective date, to comply with the proposed amendments to Form N-1A. We expect that we would not permit a person to rely on rule 498 to satisfy its obligations to deliver a mutual fund's statutory prospectus unless the fund is also in compliance with the amendments to Form N-1A. The Commission requests comment on the proposed compliance date.
The Commission requests comment on the amendments proposed in this release, whether any further changes to our rules or forms are necessary or appropriate to implement the objectives of our proposed amendments, and on other matters that might affect the proposals contained in this release.
We are proposing changes that are intended to provide you, the investor, with concise information about mutual funds that is easier to use than the mutual fund prospectuses available today.
Under our proposals, every mutual fund prospectus would include a summary section, consisting of the following key information about the fund: (1) Investment objectives; (2) costs; (3) principal investment strategies, risks, and performance; (4) top 10 portfolio holdings; (5) identity of investment advisers and portfolio managers; (6) brief purchase, sale, and tax information; and (7) information about broker compensation and conflicts. Our intent is that this information would be presented in three or four pages at the front of the prospectus.
We are also proposing to permit mutual funds to send or give you the summary information while providing the prospectus online and, upon your request, sending you a paper copy of the prospectus. The proposal is intended to provide you with key information that is easier to use while using the power of the Internet to make the more detailed information in the prospectus available to you at all times. You would still be able to get the prospectus in paper by asking for it.
We want to know your views on our proposals and on the questions we have asked throughout this release. In
Certain provisions of the proposed amendments contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
We are proposing an improved mutual fund disclosure framework that is intended to provide investors with information that is easier to use and more readily accessible, while retaining the comprehensive quality of the information that is available today. The foundation of the proposal is the provision to all investors of streamlined and user-friendly information that is key to an investment decision. More detailed information would be provided both on the Internet and, upon an investor's request, in paper or by e-mail.
The proposed amendments to Form N-1A, if adopted, would require every prospectus to include a summary section at the front of the prospectus, consisting of key information about the fund, including investment objectives and strategies, risks, costs, and performance. Proposed rule 498, if adopted, would provide a new option that would permit a person to satisfy its mutual fund prospectus delivery obligations under the Securities Act. Under the proposed option, key information would be sent or given to investors in the form of a Summary Prospectus, and the statutory prospectus would be provided on an Internet Web site. Upon an investor's request, funds would also be required to send the statutory prospectus to the investor.
We are also proposing technical and conforming amendments to rules 159A and 482 under the Securities Act that, if adopted, would reflect the proposed Summary Prospectus and the elimination of the voluntary profile, along with amendments that would update the cross references to Form N-1A contained in rule 485 under the Securities Act, rules 304 and 401 of Regulation S-T, Form N-4 under the Securities Act and the Investment Company Act, and Form N-14 under the Securities Act.
Finally, proposed amendments to rule 497, if adopted, would provide the requirements for filing Summary Prospectuses with the Commission. These amendments would not constitute a separate collection of information under rule 497 because the burden required by these amendments is part of the collection of information under proposed rule 498.
Form N-1A, including the proposed amendments, contains collection of information requirements. The likely respondents to this information collection are open-end management investment companies registered or registering with the Commission. Compliance with the disclosure requirements of Form N-1A is mandatory. Responses to the disclosure requirements are not confidential.
Much of the information that would be required in the summary section of the prospectus is currently required in a fund's prospectus. However, our proposal would require new information regarding a fund's portfolio holdings and the compensation received by financial intermediaries which would entail costs, including the costs of compiling and reviewing the information. Thus, we estimate that the proposed amendments would increase the hour burden per portfolio per filing of an initial registration statement or the initial creation of a post-effective amendment to a registration statement by 16 hours. We further estimate that subsequent post-effective amendments to a registration statement would require, on average, approximately 4 burden hours per portfolio to update and review the information. Because the PRA estimates represent the average burden over a three-year period, we estimate the average hour burden for one portfolio to comply with the proposed amendments to be approximately 8 hours.
We received 2,397 initial registration statements and post-effective amendments on Form N-1A during our 2006 fiscal year covering approximately 8,726 portfolios. Thus, the incremental hour burden resulting from the proposed amendments relating to the proposed summary section disclosure would be 69,808 hours (8 hours x 8,726 portfolios). If the proposed amendments to Form N-1A are adopted, the total annual hour burden for all funds for preparation and filing of registration statements and post-effective amendments to Form N-1A would be 1,197,088 hours (69,808 hours + 1,127,280 hours).
Proposed rule 498 would contain collection of information requirements. The likely respondents to this information collection are open-end management investment companies registered or registering with the Commission. Under proposed rule 498, use of the Summary Prospectus would be voluntary, but the rule's requirements regarding provision of the statutory prospectus would be
Our preliminary estimate is that proposed rule 498 would not impose any substantial new information collection requirements with respect to the initial preparation of a Summary Prospectus beyond those discussed above in connection with the collection of information for Form N-1A. It, however, would impose a
Pursuant to 44 U.S.C. 3506(c)(2)(B), we request comments to: (1) Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information would have practical utility; (2) evaluate the accuracy of our estimate of the burden of the proposed collections of information; (3) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and (4) evaluate whether there are ways to minimize the burden of the collections of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.
Persons submitting comments on the collection of information requirements should direct the comments to the Office of Management and Budget, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and should send a copy to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090, with reference to File No. S7-28-07. Requests for materials submitted to OMB by the Commission with regard to these collections of information should be in writing, refer to File No. S7-28-07, and be submitted to the Securities and Exchange Commission, Public Reference Room, 100 F Street, NE., Washington, DC 20549-0609. OMB is required to make a decision concerning the collections of information between 30 and 60 days after publication of this release. Consequently, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.
The Commission is sensitive to the costs and benefits imposed by its rules. We are proposing an improved mutual fund disclosure framework that is intended to provide investors with information that is easier to use and more readily accessible, while retaining the comprehensive quality of the information that is available today. The foundation of the proposal is the provision to all investors of streamlined and user-friendly information that is key to an investment decision. More detailed information would be provided both on the Internet and, upon an investor's request, in paper or by e-mail.
To implement this improved disclosure framework, we are proposing amendments to Form N-1A that would require every prospectus to include a summary section at the front of the prospectus, consisting of key information about the fund, including investment objectives and strategies, risks, costs, and performance. As discussed in the release, this key information has been identified by the participants in the June 2006 roundtable, by investor research, and by a variety of commentators as the information that is important to most investors in selecting mutual funds.
We are also proposing a new option that would permit a person to satisfy its mutual fund prospectus delivery obligations under the Securities Act. Under the proposed option, key information would be sent or given to investors in the form of a Summary Prospectus, and the statutory prospectus would be provided on an Internet Web site. Upon an investor's request, funds would also be required to send the statutory prospectus to the investor. Our intent in proposing this option is that funds take full advantage of the Internet's search and retrieval capabilities in order to enhance the provision of information to mutual fund investors.
Today's proposal has the potential to revolutionize the provision of information to the millions of mutual fund investors who rely on mutual funds for their most basic financial needs. The proposal is intended to help investors who are overwhelmed by the choices among thousands of available funds described in lengthy and legalistic documents to readily access key information that is important to an informed investment decision. At the same time, by harnessing the power of technology to deliver information in better, more usable formats, the proposals can help those investors, their intermediaries, third party analysts, the financial press, and others to locate and compare facts and data from the wealth of more detailed disclosures that are available.
Possible benefits of the proposed amendments include enhanced
Millions of individual Americans invest in shares of mutual funds, relying on mutual funds for their retirements, their children's educations, and their other basic financial needs.
Our proposal would require investment information that is key to an investment decision to be provided in a streamlined document with other more detailed information provided elsewhere. The provision of this information to investors in concise, user-friendly formats, as proposed, would allow investors to compare information across funds and may assist them in making better informed portfolio allocation decisions in line with their investment goals.
Our proposal also would provide the additional benefits of increased Internet availability of fund information, by providing layered disclosure that allows investors to move back and forth between the information within the Summary Prospectus and more detailed information within other disclosure documents. These benefits include, among other things, facilitating comparisons among funds and replacing one-size-fits-all disclosure with disclosure that each investor can tailor to his or her own needs. In recent years, access to the Internet has greatly expanded,
Significant technological advances have increased both the market's demand for more timely disclosure and the ability of funds to capture, process, and disseminate information. The proposal would enable funds to take greater advantage of the Internet to more rapidly communicate and deliver information to investors. Accordingly, investor demand for information could be satisfied through relatively inexpensive mass dissemination of the information through electronic means. We anticipate that demand for the information in the statutory prospectus and SAI will increase as access to that information becomes easier through the use of layered disclosure that allows investors, their financial intermediaries, third party analysts, and others to tailor the wealth of available information to their particular needs and circumstances.
The Summary Prospectus proposal also would provide cost savings to funds. We believe that funds will benefit from being able to send or give a Summary Prospectus and not having to print and send statutory prospectuses to all investors and prospective investors. We expect that funds would experience cost savings with respect to both annual mailings to their current shareholders and mailings made in connection with a purchase of fund shares. We estimate that funds distribute 290,000,000 statutory prospectuses annually to their current shareholders and another 64,500,000 in connection with fund purchases.
Our estimate of the number of statutory prospectuses sent out to fulfill a fund's prospectus delivery obligation upon purchase is based on information provided by Broadridge Financial Solutions (“Broadridge”). We evaluated the information provided and believe the data likely represent relevant information and costs. We solicit comment on our estimates that incorporate information provided by Broadridge.
A recent study of industry participants estimated cost savings of approximately $300,000,000 per year.
The full potential for savings may be reduced by several factors.
We expect that funds would face the highest level of uncertainty about the extent of investors' continued use of printed statutory prospectuses in the first year after adoption of the proposed amendments. We expect that, as funds gain familiarity with the continued use of printed prospectuses and as shareholders increasingly turn to the Internet for fund information, the number of requested paper copies will decline, as will funds' tendency to print more copies than ultimately are requested.
We request comment on these benefits and any other potential benefits. Specifically, we request comment on our data and analysis, including any data on the printing and mailing cost savings that may be realized as a result of our proposed amendments, if adopted. Are there any other factors that would reduce the costs to funds? We also request comment on the current number of paper copies of the SAI requested by investors and the number of paper copies of the statutory prospectus funds estimate that investors would request if our proposed amendments are adopted.
While our proposal would result in significant cost savings for funds, we believe that there will be costs associated with the proposal. These include the costs for funds to compile and review the new information required by our proposal and to post the required disclosure documents on an Internet Web site. These costs may include both internal costs (for attorneys and other non-legal staff, such as computer programmers, to prepare and review the required disclosure) and external costs (for printing and mailing of the Summary Prospectus). We estimate that the external costs for printing and mailing of the Summary Prospectus would be $104,542,500
For purposes of the PRA, we have estimated that the proposed new disclosure requirements, assuming 75% of funds choose to send or give a Summary Prospectus, would add: (1) 69,808 hours to the annual burden of preparing Form N-1A; and (2) 88,351 hours to the annual burden of preparing and using a Summary Prospectus under proposed rule 498. We estimate that this additional burden would equal total internal costs of $39,935,148 annually
Our proposal also may result in potential costs for individual fund investors. These include any paper and printing costs for those investors who choose to print posted materials. We estimate that approximately 5% of investors making fund purchases will print statutory prospectuses at home at an estimated cost of $2.03 per statutory prospectus.
As these costs are difficult to quantify, we request comment on the magnitude of these potential costs and whether there are any other additional potential costs, including whether any such costs would affect different classes of investors differently. We also request comment on the nature and magnitude of our estimates of the costs of the additional disclosure that would be required if our proposal were adopted.
We request comments on all aspects of this cost-benefit analysis, including identification of any additional costs or benefits of, or suggested alternatives to, the proposed amendments. Commenters are requested to provide empirical data and other factual support for their views to the extent possible.
Section 2(c) of the Investment Company Act
The proposed amendments are intended to provide enhanced disclosure regarding mutual funds. These changes may improve efficiency. The enhanced disclosure requirements may enable shareholders to make more informed investment decisions, which could promote efficiency. We anticipate that the proposed rules, if adopted, would increase efficiency at mutual funds by providing an alternative to the printing and mailing of paper copies of statutory prospectuses.
We anticipate that our proposal will improve investors' ability to make informed investment decisions and, therefore, lead to increased efficiency and competitiveness of the U.S. capital markets. Similarly, the ability of investors to directly locate the information they seek regarding a fund or funds through the use of the Internet may result in more fund investors or existing investors investing in more funds.
We anticipate that this increased market efficiency also may promote capital formation by improving the flow of information between funds and their investors. Specifically, we believe that the proposal will: (1) Facilitate greater availability of information to investors and the market with regard to all funds; (2) reflect the increased importance of electronic dissemination of information, including the use of the Internet; and (3) promote the capital formation process.
We request comment on whether the proposed amendments, if adopted, would promote efficiency, competition, and capital formation. We also request comment on any anti-competitive effects of the proposed amendments. Commenters are requested to provide empirical data and other factual support for their views if possible.
This Initial Regulatory Flexibility Analysis has been prepared in accordance with the Regulatory Flexibility Act.
We are proposing an improved mutual fund disclosure framework that is intended to provide investors with information that is easier to use and more readily accessible, while retaining the comprehensive quality of the information that is available today. The foundation of the proposal is the provision to all investors of streamlined and user-friendly information that is key to an investment decision. More detailed information would be provided both on the Internet and, upon an investor's request, in paper or by e-mail.
The Commission is proposing amendments to Form N-1A pursuant to authority set forth in Sections 5, 6, 7, 10, and 19(a) of the Securities Act [15 U.S.C. 77e, 77f, 77g, 77j, and 77s(a)] and Sections 8, 24(a), 24(g), 30, and 38 of the Investment Company Act [15 U.S.C. 80a-8, 80a-24(a), 80a-24(g), 80a-29, and 80a-37]. The Commission is proposing amendments to rule 498 under the Securities Act pursuant to authority set forth in Sections 5, 6, 7, 10, 19, and 28 of the Securities Act [15 U.S.C. 77e, 77f, 77g, 77j, 77s, and 77z-3] and Sections 8, 24(a), 24(g), 30, and 38 of the Investment Company Act [15 U.S.C. 80a-8, 80a-24(a), 80a-24(g), 80a-29, and 80a-37].
For purposes of the Regulatory Flexibility Act, an investment company is a small entity if it, together with other investment companies in the same group of related investment companies, has net assets of $50 million or less as of the end of its most recent fiscal year.
The proposed amendments would require all funds, including funds that are small entities, to provide key information in a summary section of their statutory prospectuses. In addition, the proposed amendments provide a new option that would permit a person to satisfy its mutual fund prospectus delivery obligations under the Securities Act. Under the proposed option, key information would be sent or given to investors in the form of a Summary Prospectus, and the statutory prospectus would be provided on an Internet Web site. Upon an investor's request, funds would also be required to send the statutory prospectus to the investor. No funds would be required to send or give a Summary Prospectus. However, for purposes of the PRA, we estimate that 75% of all funds would choose to send or give a Summary Prospectus pursuant to proposed rule 498 both to enhance investor access to information about a fund and to take advantage of the cost savings that a fund may realize. If a fund elects the proposed new delivery regime for prospectuses, it would be required to prepare, file, and send or give a Summary Prospectus to investors. Moreover, a fund would be required to update its Summary Prospectus quarterly. The required disclosure in the Summary Prospectus is information that generally would be readily available to funds. A fund would be required to post the statutory prospectus along with other required documents to an Internet Web site and provide either a paper or an e-mail copy of its statutory prospectus to requesting shareholders.
For purposes of the Paperwork Reduction Act, we have estimated that the proposed new disclosure requirements would increase the hour burden of filings on Form N-1A by 69,808 hours annually and for proposed rule 498 by 88,351 hours annually. We estimate that this additional burden would increase total internal costs per fund, including funds that are small entities, by approximately $6,102 per portfolio annually.
The Commission solicits comment on these estimates and the anticipated effect the proposed amendments would have on small entities.
We believe that there are no rules that duplicate, overlap, or conflict with the proposed amendments.
The Regulatory Flexibility Act directs us to consider significant alternatives that would accomplish our stated objective, while minimizing any significant adverse impact on small issuers. In connection with the proposed amendments, the Commission considered the following alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the proposed amendments for small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the proposed amendments, or any part thereof, for small entities.
The Commission believes at the present time that special compliance or reporting requirements for small entities, or an exemption from coverage for small entities, would not be appropriate or consistent with investor protection. We believe that the proposed amendments to Form N-1A would provide investors with enhanced disclosure regarding funds. This enhanced disclosure would allow investors to better assess their investment decisions. Different disclosure requirements for funds that are small entities may create the risk that investors in these funds would be less able to evaluate funds and less able to compare different funds, thereby lessening the ability of investors to make informed choices among funds. We believe it is important for the disclosure that would be required by the proposed amendments to Form N-1A to be provided to investors in all funds, not just funds that are not considered small entities.
Proposed rule 498, if adopted, would provide a new option that would permit a person to satisfy its mutual fund prospectus delivery obligations under the Securities Act. Under the proposed option, key information would be sent or given to investors in the form of a Summary Prospectus, and the statutory prospectus would be provided on an Internet Web site. Upon an investor's request, funds would also be required to send the statutory prospectus to the investor. Because the proposed rule is designed to provide investors with more accessible disclosure, an exemption from the proposed rule or separate requirements for small entities would not achieve the goal of more accessible disclosure for the investors in those funds.
We have endeavored through the proposed amendments to minimize the regulatory burden on all funds, including small entities, while meeting our regulatory objectives. Small entities should benefit from the Commission's reasoned approach to the proposed amendments to the same degree as other funds. We also have endeavored to clarify, consolidate, and simplify disclosure for all funds, including those that are small entities. Finally, we do not consider using performance rather than design standards to be consistent with our statutory mandate of investor protection in the context of prospectus disclosure requirements.
The Commission encourages the submission of written comments with respect to any aspect of this analysis. Comment is specifically requested on the number of small entities that would be affected by the proposed amendments and the likely impact of the proposal on small entities. Commenters are asked to describe the nature of any impact and provide empirical data supporting the extent of the impact. These comments will be considered in the preparation of the Final Regulatory Flexibility Analysis, if the proposed amendments are adopted, and will be placed in the same public file as comments on the proposed amendments themselves.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”),
• 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.
We request comment on whether our proposal would be a “major rule” for purposes of SBREFA. We solicit comment and empirical data on:
• The potential effect on the U.S. economy on an annual basis;
• Any potential increase in costs or prices for consumers or individual industries; and
• Any potential effect on competition, investment or innovation.
The Commission is proposing amendments to Form N-1A and Form N-4 pursuant to authority set forth in Sections 5, 6, 7, 10, and 19(a) of the Securities Act [15 U.S.C. 77e, 77f, 77g, 77j, and 77s(a)] and Sections 8, 24(a), 24(g), 30, and 38 of the Investment Company Act [15 U.S.C. 80a-8, 80a-24(a), 80a-24(g), 80a-29, and 80a-37]. The Commission is proposing amendments to Form N-14 pursuant to authority set forth in Sections 5, 6, 7, 10, and 19(a) of the Securities Act [15 U.S.C. 77e, 77f, 77g, 77j, and 77s(a)]. The Commission is proposing amendments to rules 159A, 482, 485, 497, and 498 under the Securities Act and to rules 304 and 401 of Regulation S-T pursuant to authority set forth in Sections 5, 6, 7, 10, 19, and 28 of the Securities Act [15 U.S.C. 77e, 77f, 77g, 77j, 77s, and 77z-3] and Sections 8, 24(a), 24(g), 30, and 38 of the Investment Company Act [15 U.S.C. 80a-8, 80a-24(a), 80a-24(g), 80a-29, and 80a-37].
Investment companies, Reporting and recordkeeping requirements, Securities.
Reporting and recordkeeping requirements, Securities.
For the reasons set out in the preamble, the Commission proposes to amend Title 17, Chapter II, of the Code of Federal Regulations as follows:
1. 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
2. Section 230.159A is amended by revising the word “profile” in paragraph (a)(2) to read “summary prospectus”.
3. Section 230.482 is amended by:
a. Revising paragraph (a) before the note; and
b. Revising paragraphs (b)(1) and (c).
The revisions read as follows:
(a)
Note to paragraph (a): * * *
(b) * * *
(1)
(c)
4. Section 230.485 is amended by revising the reference “Items 5 or 6(a)(2) of Form N-1A” in paragraph (b)(1)(iv) to read “Item 6(b) or 11(a)(2) of Form N-1A”.
5. Section 230.497 is amended by revising paragraphs (a) and (k).
The revisions read as follows:
(a) Five copies of every form of prospectus sent or given to any person prior to the effective date of the registration statement that varies from the form or forms of prospectus included in the registration statement filed pursuant to § 230.402(a) shall be filed as part of the registration statement not later than the date that form of prospectus is first sent or given to any person, except that an investment company advertisement under § 230.482 shall be filed under this paragraph (a) (but not as part of the registration statement) unless filed under paragraph (i) of this section.
(k)
6. Revise § 230.498 to read as follows:
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(b)
(1)
(i) The Fund's name and the Class or Classes, if any, to which the Summary Prospectus relates.
(ii) A statement identifying the document as a “Summary Prospectus.”
(iii) The approximate date of the Summary Prospectus's first use.
(iv) The following legend:
Before you invest, you may want to review the Fund's prospectus, which contains more information about the Fund and its risks. You can find the Fund's prospectus and other information about the Fund online at [______]. You can also get this information at no cost by calling [______] or by sending an e-mail request to [______].
(A) The legend must provide an Internet address, other than the address of the Commission's electronic filing system; toll free (or collect) telephone number; and e-mail address that investors can use to obtain the Statutory Prospectus and other information. The Internet Web site address must be specific enough to lead investors directly to the Statutory Prospectus and other materials that are required to be accessible under paragraph (f)(1) of this section, rather than to the home page or other section of the Web site on which the materials are posted. The Web site could be a central site with prominent links to each document. The legend may indicate, if applicable, that the Statutory Prospectus and other information are available from a financial intermediary (such as a broker-dealer or bank) through which shares of the Fund may be purchased or sold.
(B) If a Fund incorporates any information by reference into the Summary Prospectus, the legend must
(2)
(ii) Provide in the table required by Item 4(b) of Form N-1A the Fund's average annual total returns and, if applicable, yield as of the end of the most recent calendar quarter prior to the Summary Prospectus's first use. Update the return information as of the end of each succeeding calendar quarter not later than one month after the completion of the quarter. Include the date of the return information in the table. A Summary Prospectus may omit the explanation and information required by Instruction 2(c) to Item 4(b)(2) of Form N-1A.
(iii) Provide the portfolio holdings information required by Item 5 of Form N-1A as of the end of the most recent calendar quarter prior to the Summary Prospectus's first use or the immediately prior calendar quarter if the most recent calendar quarter ended less than one month prior to the Summary Prospectus's first use. Update the portfolio holdings information as of the end of each succeeding calendar quarter not later than one month after the completion of the quarter.
(3)
(ii) A Fund may incorporate by reference into a Summary Prospectus any or all of the information contained in the Fund's Statutory Prospectus and Statement of Additional Information, and any information from the most recent report to the Fund's shareholders under § 270.30e-1, provided that:
(A) The conditions of paragraphs (b)(1)(iv)(B) and (f) of this section are met;
(B) A Fund may not incorporate by reference into a Summary Prospectus information that paragraphs (b)(1) and (2) of this section require to be included in the Summary Prospectus; and
(C) Information that is permitted to be incorporated by reference into the Summary Prospectus may be incorporated by reference into the Summary Prospectus only by reference to the specific document that contains the information, not by reference to another document that incorporates such information by reference.
(iii) For purposes of § 230.159, information is conveyed to a person not later than the time that a Summary Prospectus is received by the person if the information is incorporated by reference into the Summary Prospectus in accordance with paragraph (b)(3)(ii) of this section.
(4)
(c)
(1) A Summary Prospectus is sent or given no later than the time of the carrying or delivery of the Fund security; and, if any other materials accompany the Summary Prospectus, the Summary Prospectus is given greater prominence than those materials and is not bound together with any of those materials;
(2) The Summary Prospectus that is sent or given satisfies the requirements of paragraph (b) of this section at the time of the carrying or delivery of the Fund security; and
(3) The conditions set forth in paragraph (f) of this section are satisfied.
(d)
(1) It is proved that prior to or at the same time with such communication a Summary Prospectus was sent or given to the person to whom the communication was made; and, if any other materials accompany the Summary Prospectus, the Summary Prospectus is given greater prominence than those materials and is not bound together with any of those materials;
(2) The Summary Prospectus that was sent or given satisfies the requirements of paragraph (b) of this section at the time of such communication; and
(3) The conditions set forth in paragraph (f) of this section are satisfied.
(e)
(i) The information in the Summary Prospectus is required to be updated for any purpose other than compliance with paragraphs (b)(2)(ii) and (iii) of this section; or
(ii) The Fund is required to file an amendment to its registration statement for the purpose of updating its Statutory Prospectus to satisfy the requirements of section 10(a)(3) of the Act (15 U.S.C. 77j(a)(3)).
(2) Unless otherwise required to be included in the Statutory Prospectus or registration statement, the failure to include in a Statutory Prospectus or registration statement the updated return and portfolio holdings information required to be included in a Summary Prospectus by paragraphs (b)(2)(ii) and (b)(2)(iii) of this section will not, solely by virtue of inclusion of the information in a Summary Prospectus, be considered an omission of material information required to be included in the Statutory Prospectus or registration statement.
(f)
(i) In the case of reliance on paragraph (c) of this section, the date that the Fund security is carried or delivered; or
(ii) In the case of reliance on paragraph (d) of this section, the date that the communication is sent or given.
(2) The materials that are accessible in accordance with paragraph (f)(1) of this section must be presented on the Web site in a format, or formats, that:
(i) Are convenient for both reading online and printing on paper;
(ii) Permit persons accessing the Statutory Prospectus or Statement of Additional Information to move directly back and forth between the table of contents in such document (including from the table of contents required by § 230.481(c)) and each section of the document referenced in the table of contents; and
(iii) Permit persons accessing the Summary Prospectus to move directly back and forth between each section of the Summary Prospectus and:
(A) Any section of the Statutory Prospectus and Statement of Additional Information that provides additional detail concerning that section of the Summary Prospectus, or
(B) Tables of contents in the Statutory Prospectus and Statement of Additional Information that prominently display the sections within the Statutory Prospectus and Statement of Additional Information that provide additional detail concerning that section of the Summary Prospectus.
(3) Persons accessing the materials specified in paragraph (f)(1) of this section must be able to permanently retain, free of charge, an electronic version of such materials in a format, or formats, that meet each of the requirements of paragraphs (f)(2)(i) and (ii) of this section.
(4) The conditions set forth in paragraphs (f)(1), (f)(2), and (f)(3) of this section shall be deemed to be met, notwithstanding the fact that the materials specified in paragraph (f)(1) of this section are not available for a time in the manner required by such paragraphs, provided that:
(i) The Fund has reasonable procedures in place to ensure that the specified materials are available in the manner required by paragraphs (f)(1), (f)(2), and (f)(3) of this section; and
(ii) The Fund takes prompt action to ensure that the specified documents become available in the manner required by paragraphs (f)(1), (f)(2), and (f)(3) of this section, as soon as practicable following the earlier of the time at which it knows or reasonably should have known that the documents are not available in the manner required by paragraphs (f)(1), (f)(2), and (f)(3) of this section.
(g) If paragraph (c) or (d) of this section is relied on with respect to a Fund, the Fund (or a financial intermediary through which shares of the Fund may be purchased or sold) must send, at no cost to the requestor and by U.S. first class mail or other reasonably prompt means, a paper copy of the Fund's Statutory Prospectus, Statement of Additional Information, and most recent annual and semi-annual reports to shareholders to any person requesting such a copy within three business days after receiving a request for a paper copy. If paragraph (c) or (d) of this section is relied on with respect to a Fund, the Fund (or a financial intermediary through which shares of the Fund may be purchased or sold) must send, at no cost to the requestor and by e-mail, an electronic copy of the Fund's Statutory Prospectus, Statement of Additional Information, and most recent annual and semi-annual reports to shareholders to any person requesting such a copy within three business days after receiving a request for an electronic copy. Compliance with this paragraph (g) is not a condition to the ability to rely on paragraph (c) or (d) of this section with respect to a Fund, and failure to comply with paragraph (g) does not negate the ability to rely on paragraph (c) or (d).
7. The authority citation for Part 232 continues to read in part as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 80a-8, 80a-29, 80a-30, 80a-37, and 7201,
8. Section 232.304 is amended by revising the references “Item 22 of Form N-1A” in paragraphs (d) and (e) to read “Item 28 of Form N-1A”.
9. Section 232.401 is amended by:
a. Revising the reference “Item 8(a) of Form N-1A” in paragraph (b)(1)(iii) to read “Item 14(a) of Form N-1A”; and
b. Revising the reference “Items 2 and 3 of Form N-1A” in paragraph (b)(1)(iv) to read “Items 2, 3, and 4 of Form N-1A”.
10. The general authority citation for Part 239 is revised to read as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 78mm, 80a-2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 80a-29, 80a-30, and 80a-37, unless otherwise noted.
11. Form N-14 (referenced in § 239.23) is amended by:
a. Revising paragraph (a) in Item 5;
b. Revising the reference “Items 10 through 22 of Form N-1A” in Item 12(a) to read “Items 15 through 28 of Form N-1A”; and
c. Revising the reference “Items 10 through 13 and 15 through 22 of Form N-1A” in Item 13(a) to read “Items 15 through 18 and 20 through 28 of Form N-1A”.
The revision to paragraph (a) of Item 5 reads as follows:
The text of Form N-14 does not, and these amendments will not, appear in the Code of Federal Regulations.
(a) If the registrant is an open-end management investment company, furnish the information required by Items 2 through 9, 10(a), 10(b), and 11 through 14 of Form N-1A under the 1940 Act;
12. The authority citation for Part 274 continues to read in part as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78
13. Form N-1A (referenced in §§ 239.15A and 274.11A) is amended by:
a. Revising the Table of Contents;
b. Revising the General Instructions as follows:
i. Revising the phrase “(except Items 1, 2, 3, and 8), B, and C (except Items 23(e) and (i)-(k))” in paragraph B.2.(b) to read “(except Items 1, 2 , 3, 4, and 14), B, and C (except Items 29(e) and (i)-(k))”;
ii. Revising paragraphs B.4.(c), C.3.(a), C.3.(b), and C.3.(c);
iii. Revising the reference “Items 6(b)-(d) and 7(a)(2)-(5)” in paragraph
iv. Revising the reference “Items 2(c)(2)(iii)(B) and (C) and 2(c)(2)(iv)” in paragraph C.3.(d)(iii) to read “Items 4(b)(2)(iii)(B) and (C) and 4(b)(2)(iv)”;
c. Revising Item 1 as follows:
i. Removing Instruction 6 to Item 1(b)(1);
ii. In Item 1(b)(3), revising the telephone number “1-202-942-8090” to read “1-202-551-8090”; and
iii. In Item 1(b)(3), revising the zip code “20549-0102” to read “20549-0213”;
d. Redesignating Items 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, and 30 as Items 4, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36, respectively;
e. Adding new Item 2;
f. Revising Item 3 as follows:
i. Adding a sentence after the sentence following the heading “Fees and expenses of the Fund”;
ii. Revising the heading “Annual Fund Operating Expenses (expenses that are deducted from Fund assets)”;
iii. Adding a new paragraph after the “Example” with the heading “Portfolio Turnover”;
iv. Revising Instruction 1(b);
v. In Instruction 2(a)(i), revising the reference “Item 7(a)” to read “Item 13(a)”;
vi. Revising Instruction 3(e);
vii. In Instruction 3(f)(iii), revising the references “Item 8(a)” to read “Item 14(a)”;
viii. In Instruction 3(f)(vii), revising the reference “Item 8” to read “Item 14”;
ix. Revising Instruction 4(a);
x. Redesignating Instruction 5 as Instruction 6 and adding new Instruction 5; and
xi. In newly redesignated Instruction 6, revising paragraph (b);
g. Revising newly redesignated Item 4 as follows:
i. Removing paragraph (a) and redesignating paragraphs (b) and (c) as paragraphs (a) and (b);
ii. In newly redesignated Item 4(a), revising the reference “Item 4(b)” to read “Item 10(b)”;
iii. In newly redesignated Item 4(b)(1)(i), revising the reference “Item 4(c)” to read “Item 10(c)”;
iv. In the Instruction to newly redesignated Item 4(b)(1)(iii), revising the reference “Items 2(c)(1)(ii) and (iii)” to read “Items 4(b)(1)(ii) and (iii)”;
v. In newly redesignated Item 4(b)(2)(i), revising the reference “paragraphs (c)(2)(ii) and (iii)” to read “paragraphs (b)(2)(ii) and (iii)”;
vi. In newly redesignated Item 4(b)(2)(iii), revising the reference “Item 22(b)(7)” to read “Item 28(b)(7)”;
vii. In newly redesignated Item 4(b)(2)(iv), revising the reference “paragraph 2(c)(2)(iii)” to read “paragraph 4(b)(2)(iii)”;
viii. In Instruction 1(a) to newly redesignated Item 4(b)(2), revising the reference “Item 8(a)” to read “Item 14(a)”;
ix. In Instruction 1(b) to newly redesignated Item 4(b)(2), revising the reference “paragraph (c)(2)(i)” to read “paragraph (b)(2)(i)”;
x. In Instruction 2(a) to newly redesignated Item 4(b)(2), revising the references “Item 21(a)”, “Item 21(b)(1)”, and “Items 21(b)(2) and (3)” to read “Item 27(a)”, “Item 27(b)(1)”, and “Items 27(b)(2) and (3)”, respectively;
xi. In Instruction 2(b) to newly redesignated Item 4(b)(2), revising the reference “Item 22(b)(7)” to read “Item 28(b)(7)”;
xii. In Instruction 2(d) to newly redesignated Item 4(b)(2), revising the references “Item 21(b)(2)” and “Item 21” to read “Item 27(b)(2)” and “Item 27”, respectively;
xiii. In newly redesignated Item 4(b)(2), revising Instructions 2(e), 3(a), 3(b), and 3(c); and
xiv. In Instruction 4 to newly redesignated Item 4(b)(2), revising the reference “Item 22(b)(7)” to read “Item 28(b)(7)”;
h. Adding new Items 5, 6, 7, 8, and 9;
i. In Instruction 5 to newly redesignated Item 10(b)(1), revising the reference “Item 11(c)(1)” to read “Item 17(c)(1)”;
j. Revising newly redesignated Item 11 as follows:
i. Revising paragraph (a)(1)(i);
ii. Revising paragraph (a)(2); and
iii. Removing the Instructions to newly redesignated Item 11(a)(2);
k. In newly redesignated Item 12, removing paragraph (g);
l. Revising newly redesignated Item 13 as follows:
i. In Instruction 1 to newly redesignated Item 13(a)(2), revising the reference “Item 7” to read “Item 13”;
ii. In Instruction 2 to newly redesignated Item 13(a)(2), revising the references “Item 7” and “Items 12(d) and 17(b)” to read “Item 13” and “Items 18(d) and 23(b)”, respectively;
iii. In newly redesignated Item 13(a)(5), revising the reference “Item 17(a)” to read “Item 23(a)”; and
iv. In the Instruction to newly redesignated Item 13(a)(5), revising the reference “Item 7” to read “Item 13”;
m. Revising newly redesignated Item 17 as follows:
i. In newly redesignated Item 17(d), revising the reference “Item 4(b)” to read “Item 10(b)”;
ii. In newly redesignated Item 17(e), revising the reference “Item 8” to read “Item 14”; and
iii. In Instruction 1 to newly redesignated Item 17(f)(2), revising the reference “Item 11(f)(2)” to read “Item 17(f)(2)”;
n. In newly redesignated Item 18, revising the reference “Item 12” to read “Item 18”;
o. In newly redesignated Items 21(a), 21(b), and 21(c), revising the reference “Item 5(a)(2)” to read “Item 6(b)”;
p. Revising newly redesignated Item 24 as follows:
i. Removing the Instruction to newly redesignated Item 24(a);
ii. In Instruction 4 to newly redesignated Item 24(c), revising the reference “Item 22” to read “Item 28”; and
iii. In Instruction 1 to newly redesignated Item 24(e), revising the reference “Item 17(e)” to read “Item 23(e)”;
q. In Instruction 1 to newly redesignated Item 26(c), revising the references “Item 7(b)(2)”, “Item 14(d)”, and “Item 30” to read “Item 13(b)(2)”, “Item 20(d)”, and “Item 36”, respectively;
r. Revising newly redesignated Item 28 as follows:
i. In newly redesignated Item 28(a), revising the reference “Item 17(c)” to read “Item 23(c)”;
ii. In newly redesignated Item 28(b)(2), revising the reference “Item 8(a)” to read “Item 14(a)”;
iii. In newly redesignated Item 28(b)(5), revising the reference “Item 12(a)(1)” to read “Item 18(a)(1)”;
iv. In newly redesignated Item 28(b)(7)(ii)(B), revising the reference “Item 21(b)(1)” to read “Item 27(b)(1)”;
v. In Instruction 10 to newly redesignated Item 28(b)(7), revising the reference “Instruction 5 to Item 3” to read “Instruction 6 to Item 3”;
vi. In the Instruction to newly redesignated Item 28(c)(1), revising the references “Item 22(b)(1)” and “Item 22(c)(1)” to read “Item 28(b)(1)” and “Item 28(c)(1)”, respectively;
vii. In newly redesignated Item 28(c)(2), revising the reference “Item 8(a)” to read “Item 14(a)”;
viii. In Instruction 1(c) to newly redesignated Item 28(d)(1), revising the reference “Item 8(a)” to read “Item 14(a)”;
ix. In Instruction 2(a)(ii) to newly redesignated Item 28(d)(1), revising the reference “Item 22(d)(1)” to read “Item 28(d)(1)”; and
x. In the Instruction to newly redesignated Item 28(d)(4), revising the
s. In newly redesignated Item 29(k), revising the reference “Item 22” to read “Item 28”;
t. Revising newly redesignated Item 33 as follows:
i. In newly redesignated Item 33(b), revising the reference “Item 20” to read “Item 26”;
ii. In Instruction 2 to newly redesignated Item 33(c), revising the reference “Item 20(c)” to read “Item 26(c)”; and
u. In Instruction 1 to newly redesignated Item 35, revising the reference “Item 14” to read “Item 20”.
The additions and revisions are to read as follows:
The text of Form N-1A does not, and these amendments will not, appear in the Code of Federal Regulations.
4. * * *
(c) The plain English requirements of rule 421 under the Securities Act [17 CFR 230.421] apply to prospectus disclosure in Part A of Form N-1A. The information required by Items 2 through 9 must be provided in plain English under rule 421(d) under the Securities Act.
3. * * *
(a)
(b)
(c)
(i) When disclosure is provided for more than one Fund or Class, the disclosure should be presented in a format designed to communicate the information effectively. Except as required by paragraph (c)(ii) for Items 2 through 9, Funds may order or group the response to any Item in any manner that organizes the information into readable and comprehensible segments and is consistent with the intent of the prospectus to provide clear and concise information about the Funds or Classes. Funds are encouraged to use, as appropriate, tables, side-by-side comparisons, captions, bullet points, or other organizational techniques when presenting disclosure for multiple Funds or Classes.
(ii) Paragraph (a) requires Funds to disclose the information required by Items 2 through 9 in numerical order at the front of the prospectus and not to precede Items 2 through 9 with other information. A prospectus that contains information about more than one Fund must present all of the information required by Items 2 through 9 for each Fund sequentially and may not integrate the information for more than one Fund together. That is, a prospectus must present all of the information for a particular Fund that is required by Items 2 through 9 together, followed by all of the information for each additional Fund, and may not, for example, present all of the Item 2 (Risk/Return Summary: Investment Objectives/Goals) information for several Funds followed by all of the Item 3 (Risk/Return Summary: Fee Table) information for several Funds. If a prospectus contains information about multiple Funds, clearly identify the name of the relevant Fund at the beginning of the information for the Fund that is required by Items 2 through 9. A Multiple Class Fund may present the information required by Items 2 through 9 separately for each Class or may integrate the information for multiple Classes, although the order of the information must be as prescribed in Items 2 through 9. For example, the prospectus may present all of the Item 2 (Risk/Return Summary: Investment Objectives/Goals) information for several Classes followed by all of the Item 3 (Risk/Return Summary: Fee Table) information for the Classes, or may present Items 2 and 3 for each of several Classes sequentially. Other presentations of multiple Class information also would be acceptable if they are consistent with the Form's
Disclose the Fund's investment objectives or goals. A Fund also may identify its type or category (
* * * You may qualify for sales charge discounts if you and your family invest, or agree to invest in the future, at least $[______] in [name of fund family] funds.
The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover may indicate higher transaction costs. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund's performance. During the most recent fiscal year, the Fund's portfolio turnover rate was _% of the average value of its whole portfolio.
1.
(a) * * *
(b) Include the narrative explanations in the order indicated. A Fund may modify the narrative explanations if the explanation contains comparable information to that shown. The narrative explanation regarding sales charge discounts is only required by a Fund that offers such discounts and should specify the minimum level of investment required to qualify for a discount.
3.
(a) * * *
(e) If there were expense reimbursement or fee waiver arrangements that reduced any Fund operating expenses and will continue to reduce them for no less than one year from the effective date of the Fund's registration statement, a Fund may add two captions to the table: one caption showing the amount of the expense reimbursement or fee waiver, and a second caption showing the Fund's net expenses after subtracting the fee reimbursement or expense waiver from the total fund operating expenses. The Fund should place these additional captions directly below the “Total Annual Fund Operating Expenses” caption of the table and should use appropriate descriptive captions, such as “Fee Waiver [and/or Expense Reimbursement]” and “Total Annual Fund Operating Expenses After Fee Waiver [and/or Expense Reimbursement],” respectively. If the Fund provides this disclosure, also disclose the period for which the expense reimbursement or fee waiver arrangement is expected to continue, and briefly describe who can terminate the arrangement and under what circumstances.
4.
(a) Assume that the percentage amounts listed under “Total Annual Fund Operating Expenses” remain the same in each year of the 1-, 3-, 5-, and 10-year periods, except that an adjustment may be made to reflect any expense reimbursement or fee waiver arrangements that reduced any Fund operating expenses during the most recently completed calendar year and that will continue to reduce them for no less than one year from the effective date of the Fund's registration statement. An adjustment to reflect any expense reimbursement or fee waiver arrangement may be reflected only in the period(s) for which the expense reimbursement or fee waiver arrangement is expected to continue.
5.
6.
(a) * * *
(b) If there are expense reimbursement or fee waiver arrangements that will reduce any Fund operating expenses for no less than one year from the effective date of the Fund's registration statement, a New Fund may add two captions to the table: one caption showing the amount of the expense reimbursement or fee waiver, and a second caption showing the New Fund's net expenses after subtracting the fee reimbursement or expense waiver from the total fund operating expenses. The New Fund should place these additional captions directly below the “Total Annual Fund Operating Expenses” caption of the table and should use appropriate descriptive captions, such as “Fee Waiver [and/or Expense Reimbursement]” and “Total Annual Fund Operating Expenses After Fee Waiver [and/or Expense Reimbursement],” respectively. If the New Fund provides this disclosure, also disclose the period for which the expense reimbursement or fee waiver arrangement is expected to continue, and briefly describe who can terminate the arrangement and under what circumstances.
(2)
2.
(e) Returns required by paragraphs 4(b)(2)(iii)(A), (B), and (C) for a Fund or Series must be adjacent to one another and appear in that order. The returns for a broad-based securities market index, as required by paragraph 4(b)(2)(iii), must precede or follow all of the returns for a Fund or Series rather than be interspersed with the returns of the Fund or Series.
3.
(a) When a Multiple Class Fund presents information for more than one Class together in response to Item 4(b)(2), provide annual total returns in the bar chart for only one of those Classes. The Fund can select which Class to include (
(i) Selects the Class with 10 or more years of annual returns if other Classes have fewer than 10 years of annual returns;
(ii) Selects the Class with the longest period of annual returns when the
(iii) If the Fund provides annual total returns in the bar chart for a Class that is different from the Class selected for the most immediately preceding period, explain in a footnote to the bar chart the reasons for the selection of a different Class.
(b) When a Multiple Class Fund offers a new Class in a prospectus and separately presents information for the new Class in response to Item 4(b)(2), include the bar chart with annual total returns for any other existing Class for the first year that the Class is offered. Explain in a footnote that the returns are for a Class that is not presented that would have substantially similar annual returns because the shares are invested in the same portfolio of securities and the annual returns would differ only to the extent that the Classes do not have the same expenses. Include return information for the other Class reflected in the bar chart in the performance table.
(c) When a Multiple Class Fund presents information for more than one Class together in response to Item 4(b)(2):
(i) Provide the returns required by paragraph 4(b)(2)(iii)(A) of this Item for each of the Classes;
(ii) Provide the returns required by paragraphs 4(b)(2)(iii)(B) and (C) of this Item for only one of those Classes. The Fund may select the Class for which it provides the returns required by paragraphs 4(b)(2)(iii)(B) and (C) of this Item, provided that the Fund:
Provide a list of the ten largest issues contained in the Fund's portfolio, in descending order, together with the percentage of net assets represented by each. Include the date as of which the holdings are provided adjacent to the holdings information.
1. Provide the required information as of the end of the most recent calendar quarter.
2. For purposes of the list, aggregate and treat as a single issue, respectively, (a) all fully collateralized repurchase agreements; and (b) all securities of any one issuer (other than fully collateralized repurchase agreements). The U.S. Treasury and each agency, instrumentality, or corporation, including each government-sponsored entity, that issues U.S. government securities is a separate issuer.
3. Any securities that would be required to be listed separately or included in a group of securities that is listed in the aggregate as a single issue may be listed in one amount as “Miscellaneous securities,” provided the securities so listed are eligible to be categorized as “Miscellaneous securities” in accordance with
(a)
1. A Fund need not identify a sub-adviser whose sole responsibility for the Fund is limited to day-to-day management of the Fund's holdings of cash and cash equivalent instruments, unless the Fund is a Money Market Fund or other Fund with a principal investment strategy of regularly holding cash and cash equivalent instruments.
2. A Fund having three or more sub-advisers, each of which manages a portion of the Fund's portfolio, need not identify each such sub-adviser, except that the Fund must identify any sub-adviser that is (or is reasonably expected to be) responsible for the management of a significant portion of the Fund's net assets. For purposes of this paragraph, a significant portion of a Fund's net assets generally will be deemed to be 30% or more of the fund's net assets.
(b)
1. This requirement does not apply to a Money Market Fund.
2. If a committee, team, or other group of persons associated with the Fund or an investment adviser of the Fund is jointly and primarily responsible for the day-to-day management of the Fund's portfolio, information in response to this Item is required for each member of such committee, team, or other group. If more than five persons are jointly and primarily responsible for the day-to-day management of the Fund's portfolio, the Fund need only provide information for the five persons with the most significant responsibility for the day-to-day management of the Fund's portfolio.
(a)
(b)
State, as applicable, that the Fund intends to make distributions that may be taxed as ordinary income or capital gains or that the Fund intends to distribute tax-exempt income. For a Fund that holds itself out as investing in securities generating tax-exempt income, provide, as applicable, a general statement to the effect that a portion of the Fund's distributions may be subject to federal income tax.
Include the following statement. A Fund may modify the statement if the modified statement contains comparable information.
If you purchase the Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may influence the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary's Web site for more information.
(a)
(1)
(i) Provide the name and address of each investment adviser of the Fund, including sub-advisers. Describe the investment adviser's experience as an investment adviser and the advisory services that it provides to the Fund.
(2)
14. Form N-4 (referenced in §§ 239.17b and 274.11c) is amended by revising the reference “Item 22(b)(ii) of Form N-1A” to read “Item 28(b)(ii) of Form N-1A” and by revising the reference “Item 22(b)(ii) equation” to read “Item 28(b)(ii) equation” in Instruction 3 to Item 21(b)(ii).
The text of Form N-4 does not, and these amendments will not, appear in the Code of Federal Regulations.
By the Commission.
This Appendix will not appear in the Code of Federal Regulations.