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Internal Revenue Service
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Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect the original approval of a new animal drug application (NADA) filed by GTC Biotherapeutics, Inc. The NADA provides for use of a recombinant deoxyribonucleic acid (rDNA) construct in a lineage of genetically engineered (GE) goats expressing recombinant human antithrombin in their milk. The subsequently purified antithrombin is a biological product for human therapeutic use. In a separate action, a biologics license application (BLA) has been approved by FDA for use of this antithrombin in humans.
This rule is effective February 11, 2009.
Larisa Rudenko, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8247, e-mail:
GTC Biotherapeutics, Inc., 175 Crossing Blvd., Framingham, MA 01702, filed NADA 141-294 that provides for use of an rDNA construct in a lineage of GE goats expressing recombinant human antithrombin in their milk. The subsequently purified antithrombin is a biological product for human therapeutic use. In a separate action, a BLA has been approved by FDA for use of this antithrombin in humans. The NADA is approved as of February 6, 2009, and the regulations are amended by adding 21 CFR part 528 to reflect the approval.
In addition, GTC Biotherapeutics, Inc., is not currently listed in the animal drug regulations as a sponsor of an approved application. Accordingly, 21 CFR 510.600(c) is being amended to add entries for this sponsor.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has carefully considered the potential environmental impact of this action and has concluded that the action will not have a significant impact on the human environment and that an environmental impact statement is not required. FDA's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Division of Dockets Management (address above) between 9 a.m. and 4 p.m., Monday through Friday.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b.
(a)
(b)
(c)
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains final and temporary regulations under sections 367(a), 367(b) and 1248(a) of the Internal Revenue Code (Code). The final regulations under section 367 revise existing final regulations and add cross-references. The final regulations under section 1248 update an effective/applicability date. The temporary regulations under section 367(a) and (b) revise existing final regulations concerning transfers of stock to a foreign corporation that are described in section 351 by reason of section 304(a)(1). The temporary regulations under section 1248(a) provide that, for purposes of section 1248(a), gain recognized by a shareholder under section 301(c)(3) in connection with the receipt of a distribution of property from a foreign corporation with respect to its stock shall be treated as gain from the sale or exchange of the stock of such foreign corporation. The temporary regulations affect certain persons that transfer stock to a foreign corporation in a transaction described in section 304(a)(1), or certain persons that recognize gain under section 301(c)(3) in connection with the receipt of a distribution of property from a foreign corporation with respect to its stock. The text of the temporary regulations serves as the text of the proposed regulations set forth in the notice of proposed rulemaking on this subject published in the Proposed Rules section in this issue of the
Sean W. Mullaney, (202) 622-3860 (not a toll-free number).
Section 367(a)(1) generally provides that if a United States person transfers property to a foreign corporation in an exchange described in section 332, 351, 354, 356, or 361, the foreign corporation shall not be considered a corporation for purposes of determining the extent to which the United States person recognizes gain on such transfer. Exceptions to the general rule are provided by section 367(a)(2) and (3), and the Secretary has broad authority under section 367(a)(6) to promulgate regulations providing exceptions for other transactions.
Section 367(b)(1) provides that in the case of an exchange described in section 332, 351, 354, 355, 356, or 361 in connection with which there is no transfer of property described in section 367(a)(1), a foreign corporation shall be considered to be a corporation except to the extent provided in regulations prescribed by the Secretary which are necessary or appropriate to prevent the avoidance of Federal income taxes. Section 367(b)(2) provides that the regulations prescribed pursuant to section 367(b)(1) shall include (but shall not be limited to) regulations dealing with the sale or exchange of stock or securities in a foreign corporation by a United States person, including regulations providing the circumstances under which gain is recognized, amounts are included in gross income as a dividend, adjustments are made to earnings and profits, or adjustments are made to the basis of stock or securities.
Regulations under section 367(b) generally provide that if the potential application of section 1248 cannot be preserved immediately following the acquisition of the stock or assets of a foreign corporation (foreign acquired corporation) by another foreign corporation in an exchange subject to section 367(b), then certain exchanging shareholders of the foreign acquired corporation must include in income as a dividend the section 1248 amount (as defined in § 1.367(b)-2(c)) attributable to the stock of the foreign acquired corporation. See § 1.367(b)-4(b).
Section 304(a)(1) generally provides that, for purposes of sections 302 and 303, if one or more persons are in control of each of two corporations and in return for property one of the corporations (the acquiring corporation) acquires stock in the other corporation (the issuing corporation) from the person (or persons) so in control, then such property shall be treated as a distribution in redemption of the stock of the acquiring corporation. To the extent section 301 applies to the distribution, the transferor and the acquiring corporation are treated as if (1) the transferor transferred the stock of the issuing corporation to the acquiring corporation in exchange for stock of the acquiring corporation in a transaction to which section 351(a) applies, and (2) the acquiring corporation then redeemed the stock it is deemed to have issued. Under section 304(b)(2), the determination of the amount of the property distribution that is a dividend (and the source thereof) is made as if the property is distributed by the acquiring corporation to the extent of its earnings and profits, and then by the issuing corporation to the extent of its earnings and profits.
On February 21, 2006, the IRS and Treasury Department issued final regulations (TD 9250) providing that section 367(a) and (b) shall not apply to certain transfers of stock of a foreign or domestic corporation to a foreign acquiring corporation to which section 351 applies (deemed section 351 exchange) by reason of section 304(a)(1) (final 2006 regulations). Specifically, § 1.367(a)-3(a) provides that if, pursuant to section 304(a)(1), a United States person is treated as transferring stock of a domestic or foreign corporation to a foreign corporation in exchange for stock of such foreign corporation in a deemed section 351 exchange, the deemed section 351 exchange is not a transfer to a foreign corporation subject to section 367(a). Similarly, § 1.367(b)-4(a) provides that if, pursuant to section 304(a)(1), a foreign corporation is treated as acquiring the stock of another foreign corporation in a deemed section 351 exchange, the deemed section 351 exchange is not an acquisition subject to section 367(b).
The preamble to the final 2006 regulations explained that the IRS and Treasury Department determined that the policies underlying section 367(a) and (b) are preserved even if a deemed section 351 exchange is not subject to section 367(a) and (b) because generally the income recognized by the transferor in the transaction (dividend income,
The preamble to the final 2006 regulations stated, however, that the IRS and Treasury Department believe current law does not provide for the recovery of basis of any shares of the acquiring corporation other than the shares deemed issued to the transferor and redeemed by the acquiring corporation as provided under section 304(a)(1). Thus, in the example above, P would recognize $100x gain under section 301(c)(3) (the built-in gain on the F1 stock), and the basis of the F2 stock held by P after the transaction would continue to be $100x. The IRS and Treasury Department continue to study the basis recovery issue as part of a larger project and have determined that it is necessary to revise the final 2006 regulations prior to the completion of that project.
Consistent with the final 2006 regulations, the temporary regulations under section 367(a) generally provide that if, pursuant to section 304(a)(1), a United States person is treated as transferring stock of a domestic or foreign corporation to a foreign corporation in exchange for stock of such foreign corporation in a deemed section 351 exchange, the deemed section 351 exchange is not a transfer to a foreign corporation subject to section 367(a). However, if the distribution received by the United States person in redemption of the foreign acquiring corporation stock received in the deemed section 351 exchange is subject to section 301 (by reason of section 302(d)), the temporary regulations provide an exception to the general rule if the distribution is applied against and reduces (in whole or in part), pursuant to section 301(c)(2), the basis of stock of the foreign acquiring corporation held by the United States person other than the stock deemed issued to the United States person in the deemed section 351 exchange. In such a case, the United States person shall recognize gain under section 367(a)(1) equal to the amount by which the gain realized by the United States person with respect to the transferred stock in the deemed section 351 exchange exceeds the amount of the distribution received by the United States person in redemption of the foreign acquiring corporation stock that is treated as a dividend under section 301(c)(1) and included in gross income by the United States person. Thus, in the hypothetical transaction described above, if any amount of the distribution received by P in redemption of the F2 stock was applied against the basis of the F2 stock held by P before (and after) the transaction, then under the temporary regulations P would recognized $100x gain under section 367(a)(1) in connection with its transfer of the F1 stock to F2 in the deemed section 351 exchange.
The exceptions to the application of section 367(a)(1) for transfers of stock provided in § 1.367(a)-3 are not available to transfers covered by the temporary regulations. For example, a United States person cannot avoid gain recognition under the temporary regulations by entering into a gain recognition agreement under §§ 1.367(a)-3(b)(1)(ii) and 1.367(a)-8 with respect to the deemed section 351 exchange.
The temporary regulations provide rules to coordinate the recognition of gain under the temporary regulations and the corresponding increase to the basis of the stock of the foreign acquiring corporation received by the United States person in the transaction. Under such rules the increase to the basis of the stock of the foreign acquiring corporation by reason of gain recognized by the United States person under the temporary regulations would be taken into account before determining the consequences of the redemption of the shares of the foreign acquiring corporation. For example, in the hypothetical transaction described above, the basis of the F2 stock deemed received by P in exchange for the F1 stock would be increased to $100x under section 358 before determining the consequences of the redemption of such stock under section 301. The gain recognized by P will be treated as recognized with respect to the F1 stock transferred in the deemed section 351 exchange in proportion to the gain realized with respect to the F1 stock.
The temporary regulations make similar revisions to the final 2006 regulations under section 367(b). Specifically, the temporary regulations provide that § 1.367(b)-4(b) shall apply to a deemed section 351 exchange to the extent the distribution received by the exchanging shareholder in redemption of the stock deemed issued by the foreign acquiring corporation is applied against and reduces, pursuant to section 301(c)(2), the adjusted basis of stock of the foreign acquiring corporation held by the exchanging shareholder before the transaction.
The temporary regulations provide rules to determine the amount of an income inclusion that is attributable to the shares of stock of the foreign acquired corporation transferred in the deemed section 351 exchange when the income inclusion required under the regulations is less than the aggregate section 1248 amount attributable to all of the shares of stock transferred in the deemed section 351 exchange.
The temporary regulations under section 1248(a) provide that gain recognized under section 301(c)(3) on the receipt of a distribution of property from a foreign corporation shall be treated, for purposes of section 1248(a), as gain from the sale or exchange of the
The temporary regulations apply to transfers or distributions occurring on or after February 11, 2009.
IRS notices cited in this preamble are made available by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. These temporary and final regulations are necessary to ensure that the appropriate amount of income (dividend income, capital gain or both) is recognized currently in the transactions described in the explanation of provisions section in this preamble. Accordingly, good cause is found for dispensing with notice and public comment pursuant to 5 U.S.C. 553(b) and (c) and with a delayed effective date pursuant to 5 U.S.C. 553(d). For applicability of the Regulatory Flexibility Act, see the cross-referenced notice of proposed rulemaking published elsewhere in this
The principal author of these regulations is Sean W. Mullaney of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
Section 1.367(a)-9T also issued under 26 U.S.C. 367(a) and (b). * * *
Section 1.367(b)-4T also issued under 26 U.S.C. 367(b). * * *
(a) * * * For rules applicable when, pursuant to section 304(a)(1), a United States person is treated as transferring stock of a domestic or foreign corporation to a foreign corporation in exchange for stock of such foreign corporation in a transaction to which section 351(a) applies, see § 1.367(a)-9T. * * *
(a)
(b)
(1) The gain realized by the United States person with respect to the transferred stock in connection with the deemed section 351 exchange exceeds; and
(2) The amount of the distribution received by the United States person in redemption of the stock of the foreign acquiring corporation deemed issued in the deemed section 351 exchange that is treated as a dividend under section 301(c)(1) and included in gross income by the United States person.
(c)
(d)
(e)
(i)
(B) Because USP wholly owns FC1 before the transactions and is treated, under section 318, as indirectly owning 100% of the FC1 stock after the transfer, under section 304(a)(1), USP and FC2 are treated in the same manner as if USP contributed the FC1 stock to FC2 in a deemed section 351 exchange in exchange solely for $100x of FC2 stock, and then FC2 redeemed for $100x cash its stock deemed issued to USP. Because USP wholly owns FC1 before the sale and is treated as owning 100% of FC1 after the sale, section 302(a) does not apply to the redemption. Instead, under section 302(d), the redemption is treated as a distribution to which section 301 applies. Pursuant to section 304(b)(2), $20x of the distribution is treated as a dividend from FC2. With respect to the remaining $80x, USP takes the position that $40x is applied against and reduces the basis of the FC2 stock issued in the deemed section 351 exchange, and $40x is applied against and reduces the basis of the FC2 stock
(ii)
(f)
(g)
(a) * * * For rules applicable when, pursuant to section 304(a)(1), a foreign acquiring corporation is treated as acquiring the stock of a foreign acquired corporation in a transaction to which section 351(a) applies, see § 1.367(b)-4T(e). * * *
(e) [Reserved]. For further guidance, see § 1.367(b)-4T(e).
(f) [Reserved]. For further guidance, see § 1.367(b)-4T(f).
(g) [Reserved]. For further guidance, see § 1.367(b)-4T(g).
(a) through (d) [Reserved]. For further guidance, see § 1.367(b)-4(a) through (d).
(e) Application of section 367(b) to transactions described in section 304(a)(1)—(1)
(2)
(3)
(4)
(i)
(B) Because CFC1 wholly owns CFC2 before the transaction and is treated, under section 318, as indirectly owning 100% of the CFC2 stock after the transaction, under section 304(a)(1), CFC2 and FS are treated as if CFC1 contributed the CFC2 stock to FS in a deemed section 351 exchange in exchange solely for $100x of FS stock, and then FS redeemed for $100x cash its stock deemed issued to CFC1. Because CFC1 wholly owned CFC2 before the transaction and is treated, under section 318, as indirectly owning 100% of CFC2 after the transaction, section 302(a) does not apply to the redemption. Instead, under section 302(d), the redemption is treated as a distribution to which section 301 applies. Pursuant to section 304(b)(2), $20x of the distribution is treated as a dividend from the earnings and profits of CFC2. With respect to the remaining $80x, CFC1 takes the position that $40x is applied against and reduces the basis of the FS stock deemed issued in the transaction, and $40x is applied against and reduces the basis of the FS stock held by CFC1 prior to (and after) the transaction.
(ii)
(f)
(g)
(b) [Reserved]. For further guidance, see § 1.1248-1T(b).
(g)
(2) [Reserved]. For further guidance, see § 1.1248-1T(g)(2).
(h) [Reserved]. For further guidance, see § 1.1248-1T(h).
(a) [Reserved]. For further guidance, see § 1.1248-1(a).
(b)
(c) through (f) [Reserved]. For further guidance, see § 1.1248-1(c) through (f).
(g)
(2) Paragraph (b) of this section applies to distributions that occur on or after February 10, 2009.
(h)
Internal Revenue Service (IRS), Treasury.
Correction to final regulations.
This document contains corrections to final regulations (TD 9442) that were published in the
This correction is effective February 11, 2009, and is applicable on December 29, 2008.
Frances Kelly, (202) 622-7770 (not a toll-free number).
The final regulations that are the subject of this document are under section 1502 of the Internal Revenue Code.
As published, final regulations (TD 9442) contains errors that may prove to be misleading and are in need of clarification.
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains corrections to final regulations (TD 9442) that were published in the
This correction is effective February 11, 2009, and is applicable on December 29, 2008.
Frances Kelly, (202) 622-7770 (not a toll-free number).
The final regulations that are the subject of this document are under section 1502 of the Internal Revenue Code.
As published, final regulations (TD 9442) contains errors that may prove to be misleading and are in need of clarification.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
1. The second sentence of paragraph (g)(3)(i)(B) is revised.
2. Paragraph (g)(3)(i)(B)(
3. Paragraph (g)(7)(ii)
4. The paragraph title for paragraph (g)(7)(ii)
5. The sixth sentence of paragraph (g)(7)(ii)
(g) * * *
(3) * * *
(i) * * *
(B) * * * In making this determination, if a creditor or debtor realizes an amount in a transaction in which a creditor assigns all or part of its rights under an intercompany obligation to the debtor, or a debtor assigns all or part of its obligations under an intercompany obligation to the creditor, the transaction will be treated as an extinguishment and will be excepted from the definition of “triggering transaction” only if either of the exceptions in paragraphs (g)(3)(i)(B)(
(
(
(7) * * *
(ii) * * *
* * *
(ii)
(
* * *
(i) * * * The terms and conditions of the note are not modified in connection with the sales transaction, the transaction does not result in a change in payment expectations, and no amount of income, gain, deduction, or loss is recognized by S, B, or T with respect to the note.
Internal Revenue Service (IRS), Treasury.
Final regulations and removal of temporary regulations.
This document contains final regulations regarding administrative review procedures for certain government agencies and other authorized recipients of returns or return information whose receipt of returns and return information may be suspended or terminated because they do not maintain proper safeguards. The regulations provide guidance to responsible IRS personnel and authorized recipients as to these administrative procedures.
Wendy L. Kribell, (202) 622-4570 (not a toll-free number).
This document contains final regulations amending the Procedure and Administration Regulations (26 CFR Part 301) under section 6103(p)(4), (p)(7), and (q) of the Internal Revenue Code (Code). Section 6103 protects returns and return information from disclosure except to certain government agencies and other authorized recipients, including State tax agencies as provided in section 6103(d). Section 6103(p)(4) provides that certain authorized recipients must establish procedures satisfactory to the IRS for safeguarding the returns and return information. The IRS reviews, on a regular basis, safeguards established by these authorized recipients. If the IRS determines that an authorized recipient has failed to maintain adequate safeguards or has made any unauthorized inspections or disclosures of returns or return information, section 6103(p)(4) authorizes the IRS to terminate or suspend disclosure of returns and return information to the authorized recipient until the IRS is satisfied that adequate steps have been taken to ensure adequate safeguards or prevent additional unauthorized inspections or disclosures.
Section 6103(p)(7) requires the Secretary to prescribe regulations providing for administrative review of an IRS determination that a State tax agency has failed to meet the safeguarding requirements. Former § 301.6103(p)(7)-1 contained procedures to allow State tax agencies, prior to a suspension or termination of disclosure, to appeal a preliminary finding by the IRS of inadequate safeguards or
On February 24, 2006, the Treasury Department and IRS published in the
The first commentator suggested that the final regulations expressly provide that the IRS may give written notice of its intention to terminate or suspend disclosure via facsimile or electronic mail. This suggestion was not adopted because nothing in the regulations precludes a written notice from being delivered electronically. Not specifying the means by which written notice is conveyed would also afford greater flexibility in providing notice as other means might evolve.
The second commentator suggested that the proposed regulations would legalize the misuse of returns and return information and thereby discourage taxpayers from seeking tax advice. This suggestion is unwarranted. Section 6103 protects returns and return information from disclosure except to authorized recipients. Section 6103(p)(4) requires certain authorized recipients to establish procedures for safeguarding returns and return information. If the authorized recipient fails to maintain adequate safeguards or has made any unauthorized inspections or disclosures, additional disclosures to that recipient may be suspended or terminated until the IRS is satisfied that adequate steps have been taken to ensure adequate safeguards or prevent additional unauthorized inspections or disclosures. Prior to these final regulations, procedures were available pursuant to section 6103(p)(7) to allow State tax agencies, prior to a suspension or termination of disclosure, to appeal a preliminary finding of inadequate safeguards or unauthorized disclosure, or to establish that the agency had taken steps to prevent a recurrence of the violation. The purpose of these final regulations is to extend these administrative review procedures from State tax agencies to all authorized recipients described in section 6103(p)(4) and to include a preliminary finding of unauthorized inspection within the scope of review. The extension of these provisions to all authorized recipients enhances the protections afforded to returns and return information.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.
The principal author of these regulations is Wendy L. Kribell, Office of the Associate Chief Counsel (Procedure & Administration).
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
For security guidelines and other safeguards for protecting returns and return information, see guidance published by the Internal Revenue Service. For procedures for administrative review of a determination that an authorized recipient has failed to safeguard returns or return information, see § 301.6103(p)(7)-1.
(a)
(1) The authorized recipient has allowed an unauthorized inspection or disclosure of returns or return information and that the authorized recipient has not taken adequate corrective action to prevent the recurrence of an unauthorized inspection or disclosure; or
(2) The authorized recipient does not satisfactorily maintain the safeguards prescribed by section 6103(p)(4), and has made no adequate plan to improve its system to maintain the safeguards satisfactorily.
(b)
(c)
(d)
(2) Within 45 days of the receipt of the request made in accordance with the provisions of paragraph (d)(1) of this section, the Commissioner or Deputy Commissioner personally shall hold a conference with representatives of the authorized recipient, after which the Commissioner or Deputy Commissioner shall make a final determination with respect to the appeal.
(e)
Equal Employment Opportunity Commission.
Final rule.
The Equal Employment Opportunity Commission is revising its regulations at 29 CFR Part 1611, which implement the Privacy Act of 1974, to exempt one of its systems of records from one of the Act's requirements.
Thomas J. Schlageter, Assistant Legal Counsel, or Kathleen Oram, Senior Attorney, at (202) 663-4640 (voice) or (202) 663-7026 (TTY). Copies of this final rule are also available in the following alternate formats: large print, Braille, audiotape and electronic file on computer disk. Requests for this notice in an alternative format should be made to EEOC's Publication Center at 1-800-669-3362 (voice) or 1-800-800-3302 (TTY).
The Equal Employment Opportunity Commission is adding a new section 1611.15 to its Privacy Act regulations to exempt records contained in EEOC-22, EEOC Personnel Security Files, from the accounting and disclosure provisions of the Privacy Act in accordance with section k(5) of the Act, but only to the extent that an accounting of disclosures or a disclosure itself identifies witnesses promised confidentiality as a condition of providing information during the course of a background investigation. The Commission is also amending sections 1611.5(a)(5) and 1611.5(b) to conform them to the addition of the new exemption.
The Commission published these proposed changes in a Proposed Rule on March 31, 2008. 73 FR 16806. EEOC did not receive any comments on the proposed rule. This final rule, therefore, adopts the amendments proposed without change.
Pursuant to Executive Order 12866, EEOC has determined that the regulation will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. Therefore, a detailed cost-benefit assessment of the regulation is not required.
This rule contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Commission, in accordance with the Regulatory Flexibility Act (5 U.S.C. 606(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities.
This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it 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 action concerns agency organization, procedure or practice that does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Privacy Act.
For the Commission.
5 U.S.C. 552a.
(a) * * *
(5) The Commission shall not deny any request under § 1611.3 concerning the existence of records about the requester in any system of records it maintains, or any request for access to such records, unless that system is exempted from the requirements of 5
(b) Upon request, the appropriate Commission official shall make available an accounting of disclosures pursuant to 5 U.S.C. 552a(c)(3), unless that system is exempted from the requirements of 5 U.S.C. 552a in §§ 1611.13, 1611.14, or 1611.15.
EEOC's system of records entitled EEOC Personnel Security Files contains records that document and support decisions regarding suitability, eligibility and fitness for service of applicants for EEOC employment and contract positions. The records include background investigation records. Pursuant to section (k)(5) of the Privacy Act, 5 U.S.C. 552a(k)(5), this system of records is exempt from the provisions of sections (c)(3) and (d)(1) of the Privacy Act, 5 U.S.C. 552a(c)(3) and (d)(1), but only to the extent that the accounting of disclosures or the disclosure of such material would reveal the identity of a source who furnished information to the government under an express promise that the identity of the source would be held in confidence.
Copyright Royalty Board, Library of Congress.
Final rule.
The Copyright Royalty Judges are announcing four modifications to the royalty terms previously adopted in their final determination of rates and terms for the mechanical and digital phonorecord delivery statutory license. These modifications are made to more clearly reflect the law as stated in the Register of Copyrights' decision of January 26, 2009.
Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor. Telephone: (202) 707-7658. Telefax: (202) 252-3423.
On November 24, 2008, the Copyright Royalty Judges (“Judges”) issued their final determination establishing rates and terms for the mechanical and digital phonorecord delivery statutory license found at 17 U.S.C. 115.
On January 26, 2009, the Register of Copyrights published a notice in the
It is evident from the Register's pronouncement that the Copyright Act grants the Judges considerably broader authority over review of agreements than discerned by the Judges in the statute. The Register stated that an agreement must pass a threshold review prior to the application of 17 U.S.C. 801(b)(7)(A). The Judges have the authority, and in fact the obligation, to review any and all provisions in an agreement. Provisions that are deemed legally erroneous may not be part of the codification based on the agreement; otherwise their adoption results in an error of law.
The Register identified four provisions in the agreement adopted in the Code of Federal Regulations that contain errors of law. All four were in the participants' agreement. First, the Register concluded that the second sentence of the definition of an “interactive stream” contained in § 385.11 of the regulations was in error because it altered the statutory terms of the section 115 license regarding what constitutes a digital phonorecord delivery.
The statutory scheme embodied in 17 U.S.C. 801
Given the Register's legal determination that the Copyright Royalty Judges have broader powers of review of agreements submitted in royalty rate and distribution proceedings, the Judges are exercising their authority under 17 U.S.C. 803(c)(4) and are modifying the terms adopted in §§ 385.11, 385.14 and 385.15. Although the Register clearly recognizes that her decision identifying certain errors of copyright law is only binding as precedent upon the Judges in subsequent proceedings, the Register suggests certain of these legal errors may be within the Judges' discretion to correct even in the instant proceeding under the continuing jurisdiction provisions of 17 U.S.C. 803(c)(4).
That statutory provision establishes continuing jurisdiction under which the Judges may “issue an amendment to a written determination to correct any technical or clerical errors in the determination
Following the Register's view of the Judges' statutory discretion to “correct” agreements, though only binding as to future proceedings, offers a singular advantage in the instant proceeding to clarify potential confusion facing users of the license at issue (some of whom may not have been parties to the partial agreement). Because the Register's published decision has interpreted certain provisions of the partial agreement of the participants regarding limited downloads and interactive streaming in this proceeding as necessarily implicating errors of copyright law and, at the same time, because the partial agreement of the participants containing the offending terms were previously published as statutorily required together with the Judges' resolution of litigated issues, users of the license may well be confused as to the status of the currently codified terms. In order to clarify those terms by means of an updated codification and, thereby, to promote an efficient administration of the applicable license, we find, pursuant to the Register's statement of our discretion under 17 U.S.C. 803(c)(4), four terms which should be clarified by means of the issuance of amended regulations to more clearly reflect the law as stated in the Register's decision. Because they are contrary to law, the following are deleted: (1) The second sentence of the definition of an “interactive stream” in § 385.11; (2) § 385.14(e); (3) § 385.15; and (4) the last sentence of § 385.14(a)(4). The Judges act under the Register's determination that agreements of the participants may be modified to excise provisions that conflict with law and still be the agreement of the participants. The basis for the regulations in Subpart B is the agreement presented by the participants pursuant to 17 U.S.C. 801(b)(7)(A). The Judges decline to add provisions to the participants' agreement, as the Register suggests, to correct errors of law and still treat it as an agreement of the participants under section 801(b)(7)(A).
With utmost respect for my esteemed colleagues, Marybeth Peters, Register of Copyrights, and Copyright Royalty Judges Stanley C. Wisniewski and William J. Roberts, Jr., the Chief Copyright Royalty Judge, James Scott Sledge, dissents. The Copyright Royalty and Distribution Reform Act of 2004 is relatively new. This proceeding is the third rate determination proceeding tried to completion with a final determination under the new act. Appeals are pending on the first two rate proceedings. The Register of Copyrights, the Copyright Royalty Judges, the participants and the public are all trying to implement the new act and faithfully follow its provisions. Consistent with all new legislation, the implementation will evolve as the common law develops. I dissent from the amendment to the final determination, only because I feel an amendment is inappropriate and unwarranted. If an amendment is appropriate to be issued, I do not oppose any part of the analysis in the majority amendment. This dissenting opinion is the first instance that any order or ruling, written or oral, of the Copyright Royalty Judges has not been unanimous. We can be proud of our record of harmony and this dissent is made after careful deliberation.
The Judges are not required to amend the final determination unless the Court of Appeals reverses and orders changes. The Judges have full independence in making initial determinations of copyright royalty rates and terms, subject only to a Register's decision following a referral of a novel question or a request for an interpretation of a material question of substantive law in title 17. 17 U.S.C. 802(f)(1)(A) and (B). A review of the Judges' final
The Judges are not authorized to make the corrections suggested by the Register. Section 803(c)(4) only permits an amendment to a final determination to correct technical or clerical errors or to modify terms in response to unforeseen circumstances that would frustrate the proper implementation of the determination. The Register's suggested changes are substantive changes of rates and terms. A determination of what constitutes a technical or clerical error is not a material question of substantive law in title 17 that is subject to the Register's authority in section 802(f)(1)(D). If any correction suggested by the Register is an unforeseen circumstance, one must conclude that it is unreasonable or unforeseeable for the Register to review a determination and find legal error.
The Judges should not make the suggested changes to the determination as they are not consistent with Chapter 8. The change to the agreement presented by all the participants discourages settlements. The procedure in proceedings throughout section 803 encourages settlements. Section 801(b)(7)(A) encourages settlements and does not include the threshold requirement suggested by the Register for a review to delete any provision that is contrary to law. The suggested change would adopt an agreement of the participants after provisions are deleted and new provisions added, notwithstanding the non-severability restrictions in the agreement. This practice discourages settlements. The changes hinder judicial efficiency by encouraging parties that are disgruntled or losing arguments in a proceeding to make last-minute requests to refer novel questions of law to the Register. Also, the Judges would be reviewing agreements for legal error after the record is closed and shortly before the determination is required to be issued, which was the timing of the agreement in this case. The changes involve the Register in procedural issues in a proceeding. An order granting or denying a motion to refer a novel question of law is a procedural, interlocutory order that is not subject to Register review, section 802(f)(1)(A)(ii), and is not a material question of law under title 17 that underlies or is contained in a final determination. The changes undermine the statutorily conferred independence of the Judges, section 802(f)(1)(A).
Rather than amend the determination, I would hold that the determination and regulations should remain as published.
Copyright, Phonorecords, Recordings.
17 U.S.C. 115, 801(b)(1), 804(b)(4).
Federal Aviation Administration, DOT.
Supplemental notice of proposed rulemaking; reopening of comment period.
This document revises an earlier proposed airworthiness directive (AD) for Sikorsky Aircraft Corporation (Sikorsky) Model S-76A, B, and C helicopters. That AD proposed to require inspecting each installed HR Textron main rotor servo actuator (servo actuator) for a high rate of leakage and for contaminated hydraulic fluid and reducing the time-in-service (TIS) interval for overhauling each servo actuator. That proposal was prompted by a National Transportation Safety Board (NTSB) Safety Recommendation issued in response to an accident involving a Model S-76 helicopter. In the NTSB Recommendation, the performance of an HR Textron servo actuator was questioned as a result of piston head seal leakage and piston head plasma spray flaking. Since the issuance of the initial proposal, and based on further information obtained from the accident investigation, the comments to the proposal, and other test and service history data since we issued the initial proposal, we continue to believe that servo actuator pistons may experience piston head seal leakage and plasma spray flaking, but have determined that the full scope of the initial proposal is unnecessary. We believe that the piston head seal leakage and plasma spray flaking can be addressed by leakage rate inspections and replacement of the current servo actuator pistons with an improved design not as susceptible to plasma spray flaking. Therefore, we are revising the proposed rule by removing the requirement to inspect the hydraulic fluid for contamination; removing the requirement to reduce the interval for overhauling an affected servo actuator from 3,000 to 2,000 hours TIS; revising the initial inspection time; and removing the 600 hours TIS repetitive hydraulic fluid leak inspection. We are proposing to add a 2,250 hours TIS hydraulic fluid leakage inspection and to add a requirement to either install a new design servo actuator or replace the servo actuator pistons when there is excessive leakage or upon reaching a certain time interval. These actions are intended to prevent degraded servo actuator performance as a result of piston head seal leaking and plasma spray flaking, which could result in subsequent loss of control of the helicopter.
Comments must be received on or before April 13, 2009.
Use one of the following addresses to submit comments on this proposed AD:
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You may get the service information identified in this proposed AD from Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, 6900 Main Street, Stratford, Connecticut, phone (203) 383-4866, email address
Terry Fahr, Aviation Safety Engineer, Boston Aircraft Certification Office, 12 New England Executive Park, Burlington, MA 01803, telephone (781) 238-7155, fax (781) 238-7170.
We invite you to submit any written data, views, or arguments regarding this proposed AD. Send your comments to the address listed under the caption
We will post all comments we receive, without change, to
You may examine the AD docket, which contains the proposed AD, any comments, and other information, on the Internet at
A proposal to amend 14 CFR part 39 to add an AD for Sikorsky Model S-76A, B, and C helicopters with HR Textron servo actuators, part number (P/N) 76650-09805, installed, was published in the
Since issuing that NPRM, we have received comments from 10 commenters, including two separate comments from the manufacturer, and a comment from the NTSB. We have reviewed the comments on that proposed rule and further analyses and test data.
Seven commenters recommended that the NPRM be withdrawn. Another commenter recommended that no AD be published “until the FAA is absolutely certain that existing manufacturer's maintenance criteria were performed by experienced technicians.”
One of these commenters, Air Logistics, states several reasons why the NPRM should be withdrawn. First, they cite their 30 years of operational experience with Sikorsky helicopters, during which they had not experienced any servo failures. Second, they state that the results of Sikorsky testing indicates that servo actuators with leakage rates as high as 3000 cc per minute in one stage had the capacity to perform the entire mission spectrum. Third, they have conducted their own internal leak tests and hydraulic oil analyses and no defects or contaminations were found. Fourth, they state there is “no evidence” presented by the NTSB or FAA to justify the NPRM. Finally, they state that the 1,000 hour TIS reduction would impose thousands of dollars of unnecessary expense without improving safety.
Another commenter, Sikorsky Aircraft Corporation, states that the NPRM should be withdrawn for several reasons. First, they state that the scope of the NPRM is without authority because there is no unsafe condition and the NPRM is based on an NTSB recommendation founded upon “preliminary speculation” regarding the root cause of an aircraft mishap that has been shown by testing and analysis to be without merit. Second, they state that they have 28 years and 9 million servo actuator flight hours, operational testing, materials analysis, and assessments of servo actuator operation within the fleet with no related operational problems. Third, they state that the existing maintenance program is adequate to assure safe, airworthy operation of the hydraulic system and its associated hardware, “including the main rotor servo actuator, within the current defined overhaul intervals based on operator data.” “This servo design has performed for over 25 years with no service anomalies.” Fourth, they cite “extensive laboratory testing” conducted by them demonstrating that “normal servo control is maintained throughout the certified flight envelope, even with leakage and wear particle conditions up to three times the [Sikorsky S76] Maintenance Manual limits”, and state that the “servo actuator is airworthy for the entire certificated flight envelope even with significant fluid contamination and internal leakage, while operating on one stage only.” Fifth, they state that implementing the AD would create an unnecessary maintenance burden on the operators and increase fleet operating costs while providing no benefit. Additionally, the commenter provided several additional “Specific Comments”. These specific comments further argue the contention that (1) performance of the servo is compromised by internal leakage and plasma spray flaking is incorrect; (2) servo internal leakage and hydraulic fluid contamination from flaking spray could result in loss of control of the aircraft is incorrect; (3) more frequent leakage tests are required to maintain servo airworthiness is unfounded; (4) more frequent hydraulic fluid cleanliness inspections are unwarranted; and (5) reducing the servo overhaul interval is unnecessary.
Another commenter, Carl Violette, states that the NPRM should be withdrawn for several reasons. First, he cites his experience of 25 years and 60,000 flight hours of maintaining accident-free operations of the Model “S-76 variants.” Second, he states that overhauling all three Model S-76 servo actuators 1,000 hours TIS early when the leakage rates are so low is “ludicrous.” Third, he states that the 600 hour TIS inspection interval “doesn't make sense” considering the existing 100 hour TIS inspection. Fourth, he states that performing contamination inspections on the aircraft is “pointless” since the fluid is usually supplied by the hydraulic mule, which has a finer filter than the aircraft one, and therefore one would only find filtered hydraulic fluid in the aircraft. Fifth, he states that the NPRM will increase helicopter operating costs from $15 per hour to $22.50 per hour, and will cost their company an additional $9,000 per year without any failed servo actuators. Sixth, he states that the servo actuator “jump” check performed by the pilot each time the aircraft is started is a “better check” and would inform the pilots if there were any issues with the servo actuators. Seventh, he states that there is “no way” that the servo actuator could extend beyond the pilot's inputs without a mechanical breakage somewhere, and that minuscule flakes won't prevent the 3,000 PSI fluid from going where it wants to go. Eighth, Mr. Violette commented that he found it “cavalier” that so little research was done on this proposal in light of the seriousness of the incident. He questioned the proposed frequency of the leakage checks, and why this leakage prompts us to lower the overhaul interval. He further stated that if contamination checks are required, then more guidance is required. He stated, “If a patch test is done, what is the accept/reject criteria? Can I send fluid to a lab instead? What are their accept/reject criteria? When should I replace a servo?” He stated that he doesn't understand how the proposed AD makes the aircraft safer.
Another commenter, Helicopter Support, Inc., states that the NPRM should be withdrawn for several reasons. First, in 20 years of overhaul and repair experience, they found flaking of the Model S-76 servo actuator piston plasma spray in only extremely rare circumstances. Second, Sikorsky testing showed “no connection between internal leakage of the main rotor servo actuator and subsequent loss of control of the helicopter.” Third, a reduction in the overhaul interval from 3,000 to 2,000 hours TIS would impose an unnecessary financial burden, and would increase maintenance costs and negatively impact flight availability. Fourth, the maintenance procedures called out in Chapters 5 & 29 of the Sikorsky S-76 Maintenance Manual “are sufficient to identify leakage and contamination” in the servo actuator system. Fifth, performing the leakage rate check is subjective and can lead to costly false removals of the servo actuator. Sixth, the 600 hours TIS patch test can be addressed by the 12 month
Another commenter, Aero Med Spectrum Health, cited their 14 or more years of operating both Model S-76A and Model S-76B helicopters without any operational problems or internal failures of the servo actuators, or anomalies reported by the crew, as evidence that the AD is unnecessary.
Another commenter, HR Textron, stated that the AD is unnecessary because the NPRM is based on “speculation of an NTSB investigator” with respect to a Model S-76 helicopter accident that has been shown to be “without substance or merit,” and extensive testing by HR Textron and Sikorsky have demonstrated that “internal leakage and/or plasma spray flaking do not create an unsafe condition.” Further, information on the flight data recorder of the accident helicopter “do not support the theory that a mechanical malfunction of the servo caused the mishap.”
Another commenter, Jay Deering, feels that the AD is “unnecessary” and will cause undue hardship for the operator.
Another commenter, Steve Strollo, states that the “AD should not be published until the FAA is absolutely certain that existing manufacturer's maintenance criteria were performed by experienced technicians.” He further states that in his 26 years as an A&P mechanic, he has seen only one serious servo actuator failure due to “tissue thin wall thickness along the entire length of the tube” and the pilots were unaware of the malfunction. He has never experienced excessive contamination of a hydraulic system, or a failed patch test. Also, he believes that degradation of the accident servo “did not occur overnight” and that if the 300 hours TIS inspection is performed correctly, damage to the servo actuator can be easily spotted.
Regarding Mr. Strollo's comment referencing the 300 hours TIS inspection, that is an inspection pertaining to “noticeable wear of the chrome plating on the visible surface” of the servo actuator piston that is not required by an AD and is not relevant to this proposal.
Two commenters, Copterline Oy (Copterline) and the NTSB, supported the NPRM.
One commenter, Copterline, was the operator of the Sikorsky Model S-76 helicopter that crashed shortly after taking off in Estonia in 2005 and prompted the NTSB safety recommendation. Copterline states that the NPRM should be adopted in its entirety and expanded to include other servo actuators in which there is “a possibility for manufacturing process error” which can cause plasma coating to delaminate and block the servo actuator return ports, leading to loss of control of the helicopter. They state that “the reason why the Plasma coating flakes off remains unaddressed.” They state that the NPRM should be expanded to include additional testing—for example, x-ray, ultrasonic, or other appropriate testing—to confirm that the plasma coating has adhered to the servo actuator pistons, which will further reduce risk. This commenter states that the NPRM should be more comprehensive. Copterline also states that the NPRM should propose a reduction in the servo actuator piston life limit until the plasma spray flaking problem has been resolved. Copterline cites NTSB laboratory findings and states that it agrees with Sikorsky that when one of the two return flow ports is blocked, safe operations can be conducted. However, if both return ports of the control valve have been blocked, the bypass function is not available and the blocked side will jam the other stage. They state that the “laboratory testing results justify the NTSB's concern.” Copterline also states that the proposed AD actions and even the additional requirements that they propose “would not adversely affect the S-76 operators and, in practise, [sic] would not materially increase operating costs of the S-76 fleet.” This commenter also states that continued accidents would be reflected in increased insurance premiums that would more than offset any short term savings associated with not taking appropriate action.
Additionally, this commenter attached a copy of its “Detailed Comments to Sikorsky's Comments on FAA and AOL” Web sites. These comments are consistent with those made to the NPRM.
Another commenter, the NTSB, also supports the NPRM, and states that “results of the Safety Board and Sikorsky tests demonstrate the need for issuance of a final rule consistent with the proposed AD as soon as possible.”
Based on the comments summarized previously and our re-evaluation of the published proposal, we agree with various portions of the comments proposing withdrawal of the NPRM and portions of those supporting the NPRM. With respect to those comments citing operational experience, lack of supportive evidence by the FAA or NTSB, testing results, adequacy of existing maintenance programs, imposition of costly procedures without an increase in safety, and inappropriateness of the proposed procedures as evidence supporting withdrawal, we have determined that portions of the initial proposal are unnecessary to correct the unsafe condition, although there is still uncertainty about the root cause of the accident. Based on our reevaluation, we continue to believe that servo actuator pistons may experience piston head seal leakage and plasma spray flaking, but this does not justify the full scope of the initial proposal. We believe that the piston head seal leakage and plasma spray flaking can be addressed adequately by leakage rate inspections and replacement of the current servo actuator pistons with an improved design not as susceptible to plasma spray flaking. The reduction in the overhaul interval from 3,000 to 2,000 hours TIS is not necessary if the leakage rate inspection is performed, and the leakage rate inspection is a better way of determining servo actuator condition than the hydraulic fluid patch test. Therefore, in order to prevent degraded servo actuator performance as a result of piston head seal leaking and plasma spray flaking, which may result in subsequent loss of control of the helicopter, we are revising the proposed rule by removing the requirement to inspect the hydraulic fluid for contamination using a patch test kit or an independent laboratory analysis method; removing the requirement to reduce the interval for overhauling an affected servo actuator from 3,000 to 2,000 hours TIS; revising the initial inspection time; and removing the 600 hours TIS repetitive hydraulic fluid leak inspection. We are proposing to add a 2,250 hours TIS hydraulic fluid leakage inspection to the currently required 1,500 hours TIS hydraulic fluid leakage inspection; and proposing to add a requirement to either install a new design servo actuator, Sikorsky part number (P/N) 76650-09805-111 (HR Textron P/N 3006760-111), or replace the servo actuator pistons, P/N 41004321 with P/N 41012001 or P/N 41012001-001, in servo actuators, Sikorsky P/N 76650-09805-109 and -110 (HR Textron P/N 3006760-109 and -110), either because of excessive leakage at the 1,500 or 2,250 hours TIS leakage inspection, or upon reaching the 3,000 hours TSN or TSO maintenance interval.
Regarding the comments in opposition to our proposal because of the cost, we agree that the initial proposal and these revised proposals would increase the operator's maintenance costs. While the total estimated cost amount of the impact contained in the economic evaluation in
Since we believe that the proposed leakage rate check and incorporation of the new servo actuator piston design are sufficient to address degraded servo actuator performance as a result of piston head seal leakage and plasma spray flaking, Copterline's proposed additional x-ray, ultrasonic, or other appropriate tests to verify adhesion of the piston plasma coating are not necessary, and would increase the operators' costs without an increased level of safety. Furthermore, we have determined, as previously mentioned, that we need to address degraded servo actuator performance due to internal leakage and piston head plasma spray flaking, which could potentially lead to loss of control of the helicopter. Therefore, we are revising the initial proposal to require only the leakage rate inspections and replacement of the servo actuators, Sikorsky P/N 76650-09805-109 and -110, with servo actuators, Sikorsky P/N 76650-09805-111, or replacement of servo actuator pistons, P/N 41004321, with P/N 41012001 or P/N 41012001-001, in Sikorsky servo actuators, P/N 76650-09805-109 and -110.
Copterline also states that inconclusive investigations into previous “unsolved accidents” involving Sikorsky Model S-70, S-76, and H-53 helicopters should be re-examined to determine if there is any relationship between those accidents and the more recent accident involving the Copterline helicopter that prompted issuing the NPRM.
We do not agree that additional review of previous accidents involving Sikorsky helicopter models is necessary. Investigations of previous Model S-76 helicopter accidents indicated no evidence of involvement of the servo actuators, therefore, we believe there is no relationship to the Copterline accident. Moreover, these servo actuators on those other Sikorsky model helicopters are significantly different in design, not susceptible to the same plasma flaking and seal leakage problems as the Model S-76 servo actuator, and would not provide useful information for evaluating the failure modes of the Model S-76 servo actuator.
Copterline expressed concern that the servo actuator does not meet the part 29 certification requirements to be a “fail-safe component”, and that it was not designed for the situation in which both return ports are blocked, which could cause the servo actuator to jam. As previously noted, they cite the NTSB laboratory findings as evidence that this dual blockage occurred, leading to the accident. Copterline states that the manufacturer of the servo actuator or the helicopter must demonstrate and prove that the servo actuator is a fail-safe component and that the Model S-76 helicopter meets all the type certification requirements.
We disagree with Copterline's statement that the S-76 servo actuator does not meet part 29 certification requirements. The design of the affected Model S-76 helicopter servo actuator meets the fail-safe design regulatory requirements that were in effect at the time of initial certification of the Model S-76 helicopter. The inspection requirements of this revised proposal will assure that the Model S-76 servo actuator remains airworthy.
Copterline states that “the FAA should require Sikorsky to make all Servo testing reports available without delay.” Copterline also states that “servo testing results and findings for cases where both return flow ports are blocked should be released immediately, if they exist.” Also, Copterline states that the “specially manufactured and modified servo used in the Sikorsky testing” did not demonstrate conclusively what happened in the accident servo actuators. They further state that the Sikorsky testing does not establish that a servo actuator on the helicopter involved in the accident did not malfunction.
We agree with the comment that all testing results and findings should be released and to our knowledge, all relevant and requested FAA agency records have been made available. With respect to the comment that Sikorsky did not demonstrate conclusively what happened in the accident, the parties involved in the accident investigation have conducted extensive investigations to determine the cause of the accident. Although the Estonian authorities have released a final report identifying a cause of the accident, these parties have not and may not ever agree on the cause of the accident. As previously mentioned, the FAA has determined, based on further information obtained from the Copterline accident investigation and other test and service history data since we issued the NPRM, that a need exists to address degraded servo actuator performance due to internal leakage and piston head plasma spray flaking. This is reflected in this proposal.
Sikorsky states with respect to the accident, that the physical evidence does not support the theory that a mechanical malfunction of the servo caused the accident, and that it is physically impossible for the Model S-76 helicopter to perform these maneuvers without being influenced by an external force such as a waterspout. Copterline states Sikorsky's comment is incorrect when it states that it is physically impossible for the Model S-76 helicopter to perform the maneuvers recorded on its own even if the servo actuator malfunctioned, and cites the accident helicopter's flight data recorder (FDR) data as evidence that the accident helicopter stalled at 130 knots, and this stall is the external force that explains the maneuvers. They also state that if there had been any weather related cause to the accident, that it could have been read from the FDR data, and that there isn't any data to support Sikorsky's theory of a waterspout.
The weather data and laboratory test data are inconclusive. We have determined that the Model S-76 servo actuator pistons may experience piston head seal leakage and plasma spray flaking, and are proposing the 1,500 and 2,250 hours TIS leakage inspections and servo actuator replacement to address this unsafe condition.
Finally, Sikorsky, in a second comment, states that the comments submitted by the NTSB in response to the previously issued NPRM are inaccurate or inconsistent with physical evidence or recorded test data. Sikorsky states that the Sikorsky testing fully demonstrated that all flight loads can be sustained in a triple “failure” condition, and that a “combined failure” with high leakage rates (3 times the in-service allowable leakage), 100 percent blockage of one of the two C3 ports, and loads associated with high airspeeds (and more significantly, the entire certified flight spectrum), will not overpower the servo actuator. They further state that they have briefed the NTSB and FAA on results of these tests and maintain that the testing demonstrates that the servo actuator design is safe and robust.
As stated previously, the final report on the accident investigation has been released, and the parties involved in the investigation have not and may never agree on the cause of the accident. However, we have determined that there
Since this proposal changes the scope and the requirements of the originally proposed rule, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.
We estimate that this proposed AD would affect 300 helicopters (900 servo actuators) of U.S. registry. We also estimate that the leakage rate inspection would take about 1 work hour per servo actuator at an average labor rate of $80 per work hour, and the two leakage rate inspections on 900 servo actuators would cost about $144,000. We estimate that 6 servo actuators, Sikorsky P/N 76650-09805-109 or -110, would need to be replaced with servo actuators, Sikorsky P/N 76650-09805-111. Assuming an estimated 8 work hours per servo actuator for installation and a cost of $57,000 per servo actuator, the total cost of installing these servo actuators would be $345,840. We estimate that the cost of replacing the pistons in the remaining 894 servo actuators would cost $7,259,280, assuming 14 work hours to replace the pistons and install the servo actuator, and a cost of $3,500 per piston (2 pistons per servo). Therefore, the total estimated cost of this proposal is $7,749,120.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. Additionally, 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 draft economic evaluation of the estimated costs to comply with this proposed AD. See the AD docket to examine the draft economic evaluation.
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.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (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. Section 39.13 is amended by adding a new airworthiness directive to read as follows:
To detect leaking in a servo actuator, which could lead to degraded servo actuator performance and subsequent loss of control of the helicopter, do the following:
(a) For a servo actuator with 1,500 or less hours time-in-service (TIS) since new (TSN) or TIS since overhaul (TSO), determine the leakage rate on or before reaching 1,500 hours TSN or TSO.
(b) For a servo actuator with 2,250 or less hours TSN or TSO, but more than 1,500 hours TSN or TSO, determine the leakage rate on or before reaching 2,250 hours TSN or TSO.
(c) If the leakage rate in any servo actuator exceeds 700 cc per minute when performing the leakage rate inspection specified in paragraph (a) or (b) of this AD, then:
(1) Replace that servo actuator piston, HR Textron P/N 41004321, with a servo actuator piston, P/N 41012001 or P/N 41012001-001, and re-identify the servo actuator on the servo actuator data plate as Sikorsky P/N “76650-09805-111” and HR Textron P/N “3006760-111” using a metal stamp method; or
(2) Replace the servo actuator with an airworthy servo actuator, Sikorsky P/N 76650-09805-111, HR Textron P/N 3006760-111.
(d) On or before 3,000 hours TSN or TSO, whichever occurs first, replace each servo actuator piston and re-identify the servo actuator as specified in paragraph (c)(1) of this AD or replace each servo actuator as specified in paragraph (c)(2) of this AD.
(e) Modifying and re-identifying each servo actuator as specified in paragraph (c)(1) of this AD or replacing each servo actuator as specified in paragraph (c)(2) of this AD is terminating action for the requirements of this AD for the modified and re-identified or replaced servo actuator.
(f) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Manager, Boston Aircraft Certification Office, FAA, ATTN: Terry Fahr, Aviation Safety Engineer, 12 New England Executive Park, Burlington, MA 01803, telephone (781) 238-7155, fax (781) 238-7170, for information about previously approved alternative methods of compliance.
Office of the Secretary, HUD.
Notice of proposed delay of effective date.
In accordance with the memorandum of January 20, 2009, from the assistant to the President and Chief
In addition, HUD takes this opportunity to address questions received subsequent to publication of the January 27, 2009, final rule pertaining to the provisions requiring the use of Social Security Numbers for determining program eligibility. HUD wishes to clarify that these requirements are not intended to apply to individuals, in mixed families, who do not contend eligible immigration status under HUD's noncitizens regulations, nor does it interfere with existing requirements relative to proration of assistance or screening for such families, or authorize their eviction or denial of admission on the basis of the new requirements pertaining to obtaining social security numbers.
HUD solicits comments specifically on the contemplated delay in effective date, but also generally on the rule entitled “Refinement of Income and Rent Determination Requirements in Public and Assisted Housing Programs.”
Comments must be received on or before March 13, 2009.
Interested persons are invited to submit comments. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.
Public Inspection of Public Comments. All properly submitted comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an appointment to review the public comments must be scheduled in advance by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Information Relay Service at 800-877-8339. Copies of all comments submitted are available for inspection and downloading at
For Office of Public and Indian Housing programs, contact Nicole Faison, Director of the Office of Public Housing Programs, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4226, Washington, DC 20410, telephone number 202-708-0744. For Office of Housing Programs, contact Gail Williamson, Director of the Housing Assistance Policy Division, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 6138, Washington, DC 20410, telephone number 202-402-2473. (These are not toll-free numbers.) Persons with hearing or speech impairments may access these numbers through TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
In the Rules and Regulations section of this issue of the
Written or electronic comments and requests for a public hearing must be received by May 12, 2009.
Send submissions to: CC:PA:LPD:PR (REG-147636-08), room 5205, Internal Revenue Service, P.O.
Concerning the proposed regulations, Sean W. Mullaney, (202) 622-3860; concerning submissions of comments or requests for a public hearing,
Temporary regulations in the Rules and Regulations section of this issue of the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. These regulations are necessary to ensure that the appropriate amount of income (dividend income, capital gain or both) is recognized currently in the transactions described in the explanation of provisions section in this preamble. Accordingly, good cause is found for dispensing with notice and public comment pursuant to 5 U.S.C. 553(b) and (c) and with a delayed effective date pursuant to 5 U.S.C. 553(d). For applicability of the Regulatory Flexibility Act, see the cross-referenced notice of proposed rulemaking published elsewhere in this
Comments are also requested regarding whether IRS and Treasury Department should exercise the regulatory authority under section 304(b)(6) to permit an increase to the basis of the transferred stock in a section 304(a)(1) transaction to the extent the distribution in redemption of the shares deemed issued by the acquiring corporation is treated as a dividend from the earnings and profits of the issuing corporation.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department specifically request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the
The principal author of these proposed regulations is Sean W. Mullaney of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.367(a)-9 also issued under 26 U.S.C. 367(a) and (b). * * *
[The text of proposed § 1.367(a)-9 is the same as the text of § 1.367(a)-9T published elsewhere in this issue of the
(e) [The text of proposed § 1.367(b)-4(e) is the same as the text of § 1.367(b)-4T(e) published elsewhere in this issue of the
(f) [The text of proposed § 1.367(b)-4(f) is the same as the text of § 1.367(b)-4T(f) published elsewhere in this issue of the
(g) [The text of proposed § 1.367(b)-4(g) is the same as the text of § 1.367(b)-4T(g) published elsewhere in this issue of the
(b) [The text of proposed § 1.1248-1(b) is the same as the text of § 1.1248-1T(b) published elsewhere in this issue of the
(g) [The text of proposed § 1.1248-1(g) is the same as the text of § 1.1248-1T(g) published elsewhere in this issue of the
Internal Revenue Service (IRS), Treasury.
Cancellation of notice of public hearing on proposed rulemaking.
This document cancels a public hearing on proposed rulemaking relating to the application of section 108(e)(8) of the Internal Revenue Code to partnerships and their partners.
The public hearing, originally scheduled for February 19, 2009, at 10 a.m., is cancelled.
Richard A. Hurst of the Publications and Regulations Branch, Legal Processing
A notice of public hearing that appeared in the
The public comment period for these regulations expired on January 29, 2009. Outlines of topics to be discussed at the hearing were due on January 27, 2009. The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit an outline of the topics to be addressed. As of Tuesday, February 3, 2009, no one has requested to speak. Therefore, the public hearing scheduled for February 19, 2009, is cancelled.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes the expansion of a naval security zone. This action would expand an existing security zone, which in doing so would encompass a nearby security zone in its entirety. The subsumed security zone would be removed. This action also proposes the installation of water barriers within the expanded security zone. These water borne barriers will provide a line of demarcation and a defensive measure as a safeguard from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature. No persons or vessel may enter or remain in the security zone without the permission of the Captain of the Port, the Commander of Naval Base Point Loma, the Commander of Naval Region Southwest, or a designated representative of those individuals.
Comments and related material must either be submitted to our online docket via
You may submit comments identified by docket number USCG-2008-1016 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these methods. For instructions on submitting comments, see the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call Lieutenant Commander Mike Dolan, USCG, Waterways Management, U.S. Coast Guard Sector San Diego at 619-278-7261. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to
If you submit a comment, please include the docket number for this rulemaking (USCG-2008-1016), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online, or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of 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 a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the
We do not now plan to hold a public meeting. But you may submit a request
The U.S. Navy is requesting an expansion of an existing security zone. The new zone will allow for installation of water barriers to provide a line of demarcation and defensive measure as a safeguard from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature. The expanded security zone would entirely subsume a nearby existing security zone, which would be removed.
The Coast Guard proposes an expansion of an existing security zone in the San Diego Bay for U.S. Navy. The limits of the security zone would be as follows: The water adjacent to Naval Base Point Loma, San Diego, California, enclosed by the following coordinates:
Beginning at 32°42.48′ N, 117°14.21′ W (Point A); 32°42.48′ N, 117°14.17′ W (Point B); 32°42.17′ N, 117°14.00′ W (Point C); 32°41.73′ N, 117°14.21′ W (Point D); 32°41.53′ N, 117°14.23′ W (Point E); 32°41.55′ N, 117°14.02′ W (Point F); 32°41.17′ N, 117°13.95′ W (Point G); 32°41.04′ N, 117°14.14′ W (Point H); thence running generally north along the shoreline to the place of beginning (Point A).
This security zone is necessary to provide as a safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature. No persons or vessel may enter or remain in the security zone without the permission of the Commander, Naval Base Point Loma; Commander, Naval Region Southwest; the Captain of the Port, or their respective designated representatives.
This proposed security zone would entirely overlap the existing security zone at 33 CFR 165.1103, which would be removed.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
This determination is based on the size and location of the security zone. Vessels do not routinely operate for commercial purposes within the area proposed by the security zone expansion, which is currently within a charted restricted area (33 CFR 334.870). Additionally, vessel traffic may pass safely around the security zone.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the San Diego Bay.
This security zone would not have a significant economic impact on a substantial number of small entities because vessel traffic may pass safely around the security zone.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander Mike Dolan, USCG, Waterways Management, U.S. Coast Guard Sector San Diego at 619-278-7233. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 5100.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination under the Instruction that this action is not likely to have a significant effect on the human environment. An environmental analysis checklist supporting this preliminary determination is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Revise § 165.1102 to read as follows:
(a)
Beginning at 32°42.48′ N, 117°14.21′ W (Point A); 32°42.48′ N, 117°14.17′ W (Point B); 32°42.17′ N, 117°14.00′ W (Point C); 32°41.73′ N, 117°14.21′ W (Point D); 32°41.53′ N, 117°14.23′ W (Point E); 32°41.55′ N, 117°14.02′ W (Point F); 32°41.17′ N, 117°13.95′ W (Point G); 32°41.04′ N, 117°14.14′ W (Point H); thence running generally north along the shoreline to the place of beginning (Point A).
(b)
(2) Entry into, or remaining in, the area of this zone is prohibited unless authorized by the Captain of the Port San Diego; Commanding Officer, Naval Base Point Loma; or Commander, Navy Region Southwest.
(3) Persons desiring to transit the area of the security zone may request permission from the Captain of the Port San Diego at telephone number (619) 278-7033 or on VHF channel 16 (156.8 MHz) or from either the Commanding Officer, Naval Base Point Loma or the Commander, Navy Region Southwest by calling the Navy Port Operation Dispatch at telephone number (619) 556-1433 or on VHF-FM channels 16 or 12. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port San Diego or his or her designated representative.
(c)
3. Remove § 165.1103.
Postal Service.
Proposed rule.
This document contains the rules of procedure of the Postal Service Board of Contract Appeals (Board) which will govern all proceedings before the Board. The Board was re-established by the National Defense Authorization Act for Fiscal Year 2006, to hear and decide contract disputes relative to a contract entered into by the United States Postal Service or the Postal Regulatory Commission. In addition the Board has jurisdiction over other matters assigned to it by the Postmaster General, and over matters otherwise authorized by applicable law. The Board intends to issue final, revised rules after considering all comments on the proposed rules.
Comments must be received on or before March 13, 2009.
Judicial Officer Department, United States Postal Service, 2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078.
Administrative Judge Gary E. Shapiro, Board Member, (703) 812-1910.
The Postal Service Board of Contract Appeals was re-established by section 847 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163, 119 Stat. 3136), codified at section 8(c) of the Contract Disputes Act, 41 U.S.C. 607(c), to hear and decide contract disputes relative to a contract entered into by the United States Postal Service or the Postal Regulatory Commission.
These revised rules of procedure have the same general intent and coverage as the existing rules. However, the revised rules have been updated, are more comprehensive than the existing rules, and are intended to reflect more precisely actual practice in proceedings before the Board.
These revised rules will completely replace the existing rules of practice and once adopted as a final rule, will be effective for all appeals docketed by the Board on and after their effective date. While the language of the proposed rules may have changed considerably to enhance clarity and consistency, and to reflect more precisely the practices of the Board, we here identify the most significant changes of substance.
The proposed rules provide that the Board may consider the Federal Rules of Civil Procedure and the Federal Rules of Evidence, where appropriate, for guidance in construing its rules and in processing appeals.
The proposed rules provide that requests for extensions of time shall represent that the moving party has contacted the opposing party about the request, and indicate whether the opposing party consents to the extension, and if filed after the time for taking the required action has expired, indicate the reasons for the party's failure to have submitted the request timely.
The proposed rules require the filing party to serve complaints and answers upon the opposing party. The only documents that should not be served on the opposing party are simultaneous briefs. The proposed rules also allow for filing by fax but provide that the Board may determine not to extend a filing deadline solely because the Board's fax machine is busy or unavailable, or the fax is incomplete or illegible. The rules do not permit electronic filing at this time.
The proposed rules formalize Board precedent that notices of appeal may be filed either with the contracting officer or directly with the Board. Notices of appeal filed with the contracting officer are required to be forwarded by the contracting officer to the Board along with a copy of the contracting officer's final decision on which the appeal is based.
The proposed rules require Postal Service counsel to file the appeal file within thirty days from receipt by Postal Service counsel of the Board's docketing notice, a change from the existing rules that require filing within thirty days from the date the contracting officer receives notice of an appeal. Objections to appeal file documents are to be made at least ten days prior to a hearing or the date specified for settling the record. The proposed rules require the appellant to file the complaint within forty-five days after receipt of the notice of docketing, a change from the existing rules that require filing within thirty days after receipt of the notice of docketing. The proposed rules also formalize Board practice that the Board may order the Postal Service to file the complaint in appeals involving affirmative claims by the Postal Service.
The proposed rules specifically provide for summary judgment motions, and describe the requirements and limitations thereon.
The proposed rules formalize the Board's practices regarding discovery and the requirements and limitations that may be prescribed thereon. Procedures for the production of documents have been specified. Requirements for motions to compel discovery responses have been clarified.
The proposed rules clarify that hearings may be held at the Board's hearing room in Arlington, Virginia, or in another location convenient to the parties and witnesses. The proposed rules formalize the Board's practices regarding exclusion of witnesses at hearings. The proposed rules also provide that both parties will be provided transcripts or copies of proceedings without charge.
The proposed rules require an attorney who has filed a notice of appearance and who wishes to withdraw from a case to file a motion or notice identifying the person that will assume responsibility for the party in the appeal and the contact information therefor. The proposed rules detail the Board's sanction powers over parties and attorneys.
Administrative practice and procedure, Contract Disputes Act of 1978, Postal Service.
For the reasons stated in the preamble, the Postal Service proposes to revise 39 CFR Part 955 to read as follows:
1. Part 955 is revised to read as follows:
39 U.S.C. 204, 401; 41 U.S.C. 607, 608.
(a)
(b)
(2) The Board consists of the Judicial Officer as Chairman, the Associate Judicial Officer as Vice Chairman, and the Judges of the Board, as appointed by the Postmaster General in accordance with the Contract Disputes Act of 1978, 41 U.S.C. 601-613. All members of the Board shall meet the qualifications established in the Contract Disputes Act. In general, appeals are assigned to a panel of at least three members of the Board. The decision of a majority of the panel constitutes the decision of the Board.
(c)
(2)
(3)
(ii) Except as otherwise provided by law, in computing any period of time prescribed by these rules or by any order of the Board, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a federal holiday in which event the period shall run to the end of the next business day. Except as otherwise provided in these rules or an applicable order, prescribed periods of time are measured in calendar days rather than business days.
(iii) Requests for extensions of time from either party shall be made in writing stating good cause therefor, shall represent that the moving party has contacted the opposing party about the request, and shall indicate whether the opposing party consents to the extension. If the request for extension of time is filed after the time for taking the required action has expired, the request should indicate the reasons for the party's failure to have submitted the request before that time expired.
(4) Place of filings. Unless the Board otherwise directs, pleadings and other communications shall be filed with the Recorder of the Board at its office at 2101 Wilson Boulevard, Suite 600, Arlington, Virginia 22201-3078. Generally, and unless otherwise prescribed by law, rule or applicable Board order, the Board considers documents filed upon the earlier of receipt by the Recorder of the Board during the Board's working hours or, if mailed, the date mailed to the Board. A United States Postal Service postmark shall be prima facie evidence that the document with which it is associated was mailed on the date of the postmark.
(5) Service of papers. Papers shall be served personally or by mail, addressed to the party upon whom service is to be made. Copies of simultaneous briefs shall be filed directly with the Board for distribution and shall not be sent directly by the parties to each other. The party filing any other paper with the Board shall send a copy thereof to the opposing party, by an equally or more expeditious means of transmittal, noting on the paper filed with the Board, or on the transmitting letter, that a copy has been so furnished. The filing of a document by fax transmission occurs upon receipt by the Board of the entire legible submission by fax. The Board may determine not to extend a deadline for filing solely because the Board's fax machine is busy or otherwise unavailable when a filing is due.
Notice of an appeal must be in writing, and the original, together with two copies, may be filed with the contracting officer from whose decision the appeal is taken, or may be filed directly with the Board. The notice of appeal must be mailed or otherwise filed within the time specified by applicable law.
(a) A notice of appeal from a contracting officer's decision should indicate that an appeal is thereby intended. It should identify the contract by number and identify the decision from which the appeal is taken, or it should attach a copy of the contracting officer's decision. If an appeal is taken from the failure of a contracting officer to issue a decision, the notice of appeal should describe in detail the claim that the contracting officer has failed to decide and/or attach a copy of the claim that the contracting officer has failed to decide, and explain that the contracting officer has failed to decide the claim as required.
(b) The notice of appeal should be signed personally by the appellant (the contractor taking the appeal), or by an officer of the appellant corporation or member of the appellant firm, or by the contractor's duly authorized representative or attorney. The complaint referred to in § 955.7 may be filed with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.
Upon receipt of a notice of appeal in any form, the contracting officer shall indicate thereon the date of mailing (or date of receipt, if otherwise conveyed) and within 10 days shall forward said notice of appeal to the Board, and shall include a copy of the contracting officer's final decision if one has been issued. Following receipt by the Board of the original notice of an appeal (whether through the contracting officer or otherwise), the contractor and contracting officer will be advised promptly of its receipt, and the contractor will be furnished a copy of these rules.
(a)
(1) The claim and contracting officer's final decision from which the appeal is taken;
(2) The contract, including pertinent specifications, amendments, plans and drawings;
(3) All correspondence between the parties pertinent to the appeal;
(4) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to
(5) Any additional information considered pertinent.
(b)
(c)
(d)
(e) Status of documents in appeal file. Documents contained in the appeal file are considered, without further action by the parties, as part of the record upon which the Board will render its decision, unless a party objects to the consideration of a particular document. Unless otherwise provided by Board order, any such objection shall be made at least 10 days prior to a hearing or the date specified for settling the record in the event there is no hearing on the appeal. If timely objection to a document is made, the Board will rule upon its admissibility into the record as evidence in accordance with §§ 955.14 and 955.21.
(a) Any motion addressed to the jurisdiction of the Board shall be promptly filed. Hearing on the motion may be afforded on application of either party. The Board may at any time and on its own motion raise the issue of its jurisdiction to proceed with a particular case.
(b) A motion filed in lieu of an answer shall be filed no later than the date on which the answer is required to be filed or such later date as may be established by Board order. Any other dispositive motion shall be filed as soon as practicable after the grounds therefor are known.
(c) Motions for summary judgment may be considered by the Board. However, the Board may defer ruling on a motion for summary judgment, in its discretion, until after a hearing or other presentation of evidence. Motions for summary judgment may be filed only when a party believes that, based upon uncontested material facts, it is entitled to relief as a matter of law. The parties are to consider proceeding by submission of the case without a hearing in accordance with § 955.12, in lieu of a motion for summary judgment.
(1) Motions for summary judgment shall include a separate document titled
(2) The opposing party shall file with its opposition a separate document titled
(3) The moving party and the non-moving party shall each submit a memorandum of law supporting or opposing summary judgment.
(4) If, despite reasonable efforts, the opposing party cannot present facts essential to justify its opposition, the Board may defer ruling on the motion to permit affidavits to be obtained or depositions to be taken or other discovery to be conducted, or may issue such other order as is just. The parties should not expect the Board to search the record for evidence in support of either party's position.
(a)
(b)
(c)
(a) Upon its own initiative or upon application by a party, the Board may, in its discretion, order a party to submit a more definite statement of the complaint or answer, or to reply to an answer.
(b) When issues within the proper scope of an appeal, but not raised in the pleadings, have been raised without objection or with permission of the Board at a hearing or in record submissions, they may be treated in all respects as if they had been raised in the pleadings. If evidence is objected to at a hearing on the ground that it is not within the issues raised by the pleadings, in its discretion the Board may admit the evidence and grant the objecting party a continuance or other relief if necessary to enable it to meet such evidence.
As directed by Board order, each party shall inform the Board, in writing, whether it desires a hearing as prescribed in §§ 955.18 through 955.25, or in the alternative submission of its case on the record without a hearing as prescribed in § 955.12. If a hearing is elected, the election should state where and when the electing party desires the hearing to be conducted and should explain the reasons for its choices. In appropriate cases, the appellant shall also state whether the optional small claims (expedited) procedure or accelerated procedure prescribed in § 955.13 is elected.
Based on an examination of the documentation described in § 955.5, the pleadings, and a determination of whether the arguments and authorities addressed to the issues are adequately set forth therein, the Board may, in its discretion, require the parties to submit prehearing briefs in any case in which a hearing has been elected pursuant to § 955.9. In the absence of a Board requirement therefor, either party may, in its discretion and upon appropriate and sufficient notice to the other party, furnish a prehearing brief to the Board. In any case where a prehearing brief is submitted, it shall be furnished so as to be received by the Board at least 15 days prior to the date set for hearing, and a copy shall be furnished simultaneously to the other party.
(a) Whether the case is to be submitted pursuant to § 955.12, or heard pursuant to §§ 955.18 through 955.25, the Board may upon its own initiative or upon the application of either party, convene a conference to consider:
(1) The simplification or clarification of the issues;
(2) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements which will avoid unnecessary proof;
(3) The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the case is to be heard;
(4) The possibility of agreement disposing of all or any of the issues in dispute; and
(5) Such other matters as may aid in the disposition of the appeal.
(b) The results of the conference shall be reduced to writing by the Board and this writing shall thereafter constitute part of the record.
Either party may elect to waive a hearing and to submit its case upon the record before the Board, as settled pursuant to § 955.14. Submission of the case without hearing does not relieve the parties from the necessity of proving the facts supporting their allegations or defenses. Affidavits, depositions, admissions, answers to interrogatories, and stipulations may be employed to supplement other documentary evidence in the record. The Board may permit such submission to be supplemented by oral argument (transcribed if requested), and by briefs in accordance with § 955.24.
(a)
(2) The appellant may elect this procedure when:
(i) There is a monetary amount in dispute and that amount is $50,000 or less, or
(ii) There is a monetary amount in dispute and that amount is $150,000 or less and the appellant is a small business concern (as that term is defined in the Small Business Act and regulations promulgated under the Act).
(3) In cases proceeding under the Expedited Procedure, the respondent shall send the Board a copy of the contract, the contracting officer's final decision, and the appellant's claim letter or letters, if any, within ten days from the respondent's first receipt from either the appellant or the Board of a copy of the appellant's notice of election of the Expedited Procedure. If either party requests an oral hearing in accordance with § 955.9, the Board shall promptly schedule such a hearing for a mutually convenient time consistent with administrative due process and the 120-day limit for a decision, at a place determined under § 955.18. If a hearing is not requested by either party, the appeal shall be deemed to have been submitted under § 955.12 without a hearing.
(4) Promptly after receipt of the appellant's election of the Expedited Procedure, the Board shall establish a schedule of proceedings that will allow for the timely resolution of the appeal. Pleadings, discovery, and other prehearing activities may be restricted or eliminated at the Board's discretion as necessary to enable the Board to decide the appeal within 120 days after the Board has received the appellant's notice of election of the Expedited Procedure. In so doing, the Board may reserve whatever time it considers necessary for preparation of the decision.
(5) Written decisions by the Board in cases processed under the Expedited Procedure will be short and contain only summary findings of fact and conclusions. Decisions will be rendered for the Board by a single Judge. If there has been a hearing, the Judge presiding at the hearing may, in his or her discretion, at the conclusion of the hearing and after entertaining such oral arguments as he or she deems appropriate, render on the record oral summary findings of fact, conclusions of law, and a decision of the appeal. Whenever such an oral decision is rendered, the Board will subsequently furnish the parties a printed copy of such oral decision for the record and payment purposes and for the establishment of the commencement date of the period for filing a motion for reconsideration under § 955.30.
(6) Decisions of the Board under the Expedited Procedure will not be published, will have no value as precedents, and in the absence of fraud, cannot be appealed.
(b)
(2) Promptly after receipt of the appellant's election of the Accelerated Procedure, the Board shall establish a schedule of proceedings that will allow for the timely resolution of the appeal. The Board, in its discretion, may shorten time periods prescribed elsewhere in these Rules as necessary to enable the Board to decide the appeal within 180 days after the Board has received the appellant's notice of election of the Accelerated Procedure.
(3) Written decisions by the Board in cases processed under the Accelerated Procedure will normally be short and contain only summary findings of fact and conclusions. Decisions will be rendered for the Board by a single Judge with the concurrence of the Chairman or Vice Chairman or other designated Judge, or by a majority among these two and an additional designated member in case of disagreement. In cases where the
(c)
(d)
(e)
(a) The record upon which the Board's decision will be rendered consists of the appeal file described in § 955.5, and to the extent the following items have been filed, pleadings, prehearing conference memoranda or orders, prehearing briefs, depositions or interrogatories received in evidence, admissions, stipulations, transcripts of conferences and hearings, hearing exhibits, posthearing briefs, and documents which the Board has specifically designated be made a part of the record. The record will at all reasonable times be available for inspection by the parties at the Board.
(b) Except as the Board may otherwise order in its discretion, no proof shall be received in evidence after completion of an oral hearing or, in cases submitted on the record, after notification by the Board that the case is ready for decision.
(c) The weight to be attached to any evidence of record will rest within the sound discretion of the Board. The Board may in any case require either party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the appeal.
(d) The Board may consider the Federal Rules of Evidence for guidance regarding admissibility of evidence and other evidentiary issues in construing those Board rules that are similar to Federal Rules and for matters not specifically covered herein.
(a) The parties are encouraged to engage in voluntary discovery procedures. In connection with any deposition or other discovery procedure, the Board may issue any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, and those orders may include limitations on the scope, method, time and place for discovery, and provisions for protecting the secrecy of confidential information or documents.
(b) The Board may limit the frequency or extent of use of discovery methods described in these rules. In doing so, generally the Board will consider whether: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity by discovery in the case to obtain the information sought; or (3) the discovery is unduly burdensome and expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake. The parties are required to make a good faith effort to resolve objections to discovery requests informally. A party receiving an objection to a discovery request, or a party which believes that another party's response to a discovery request is incomplete or entirely absent, may file a motion to compel a response, but such a motion must include a representation that the moving party has tried in good faith, prior to filing the motion, to resolve the matter informally. The motion to compel shall include a copy of each discovery request at issue and the response, if any.
(c) If a party fails to appear for a deposition, after being served with a proper notice, or fails to serve answers or objections to interrogatories, requests for admission of facts, or requests for the production or inspection of documents, after proper service, the party seeking discovery may request that the Board impose appropriate rulings or sanctions.
(a)
(b)
(c)
(a)
(b)
(c)
(d)
If there is to be a hearing, it will be held at a time and place prescribed by the Board after consultation with the party or parties electing the hearing. At the discretion of the Board, hearings may be held in the Board's hearing room in Arlington, VA or may be held at another location with due consideration to the just, informal, expeditious and inexpensive resolution of each case.
The Board shall issue an order reasonably in advance of the hearing identifying the time and place thereof.
The unexcused absence of a party at the time and place set for hearing will not be occasion for delay. In the event of such absence, the hearing will proceed and the case will be regarded as submitted by the absent party as provided in § 955.12.
Hearings shall be as informal as may be reasonable and appropriate under the circumstances. The Board may exclude evidence to avoid unfair prejudice, confusion of the issues, undue delay, waste of time, or presentation of irrelevant, immaterial or cumulative evidence. Although the Board will consider the Federal Rules of Evidence as described in § 955.14(d), letters or copies thereof, affidavits, or other evidence not ordinarily admissible under the Federal Rules, may be admitted in the discretion of the Board. The weight to be attached to evidence presented in any particular form will be within the discretion of the Board, taking into consideration all the circumstances of the particular case. Stipulations of fact agreed upon by the parties may be accepted as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The Board may in any case require evidence in addition to that offered by the parties.
Witnesses before the Board will be examined orally under oath or affirmation, unless the facts are stipulated, or the Board shall otherwise order. If the testimony of a witness is not given under oath or affirmation, the Board may warn the witness that his or her statements may be subject to the provisions of 18 U.S.C. 287 and 1001, and any other provisions of law imposing penalties for knowingly making false representations in connection with claims against the United States or in any matter within the jurisdiction of any department or agency thereof. Upon the request of either party or if the Board deems it advisable, the Board will exclude witnesses from the hearing room. The Board will not exclude a party who is an individual, the properly designated representative of a party which is an entity, a person whose presence is essential to the presentation of a party's case, or someone authorized by statute to be present.
(a) When books, records, papers, or documents have been received in evidence, a true copy thereof or of such part thereof as may be material or relevant may be substituted therefor, during the hearing or at the conclusion thereof.
(b) After a decision has become final, upon request and after notice to the other party, the Board in its discretion may permit the withdrawal of original exhibits, or any part thereof, by the party entitled thereto. The substitution of true copies of exhibits or any part thereof may be required by the Board in its discretion as a condition of granting permission for such withdrawal.
Posthearing briefs may be submitted upon such terms as may be ordered by the Board at the conclusion of the hearing. Ordinarily, they will be simultaneous briefs, submitted to the Board on a date established by the Board, following receipt of transcripts.
Testimony and argument at hearings shall be reported verbatim, unless the Board otherwise orders. Transcripts or copies of the proceedings will be provided to the parties by the Board.
(a) The term
(b) The term
(c) References to contractor, appellant, contracting officer, respondent and parties shall include respective counsel for the parties, as soon as appropriate notices of appearance have been filed with the Board.
Any attorney for either party who has filed a notice of appearance and who wishes to withdraw from a case must file a motion or notice which includes the name, address, telephone number, and fax machine number of the person who will assume responsibility for representation of the party in question.
(a) Whenever at any time it appears that the parties are in agreement as to disposition of the controversy, the Board may suspend further processing of the appeal:
(b) The Board may in its discretion suspend proceedings to permit a contracting officer to issue a decision when an appeal has been taken from the contracting officer's failure to render a timely decision, or for other good cause.
Decisions of the Board will be made in writing and sent simultaneously to both parties. The rules of the Board and all final orders and decisions shall be open for public inspection at the offices of the Board, and may be made available on its official Web site and to commercial publishers. Decisions of the Board will be made solely upon the record, as described in § 955.14.
A motion for reconsideration, if filed by either party, shall set forth
In certain cases, appeals docketed before the Board are required to be placed in a suspense status and the Board is unable to proceed with disposition thereof for reasons not within the control of the Board. In any such case where the suspension has continued, or it appears that it will continue, for an inordinate length of time, the Board may, in its discretion, dismiss such appeals from its docket without prejudice to their restoration when the cause of suspension has been removed. Unless either party or the Board acts within three years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed with prejudice.
Whenever a record discloses the failure of either party to file documents required by these rules, respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise indicates an intention not to continue the prosecution or defense of an appeal, the Board may issue an order requiring the offending party to show cause why the appeal should not be either dismissed or granted, as appropriate. If the offending party shall fail to show such cause, the Board may take such action as it deems reasonable and proper under the circumstances.
No member of the Board or of the Board's staff shall entertain, nor shall any person directly or indirectly involved in an appeal submit to the Board or the Board's staff, off the record, any evidence, explanation, analysis, or advice, whether written or oral, regarding any matter at issue in an appeal. This provision does not apply to consultation among Board members nor to ex parte communications concerning the Board's administrative functions or procedures.
(a) All parties and their attorneys must obey directions and orders prescribed by the Board and adhere to standards of conduct applicable to such parties and attorneys. As to an attorney, the standards include the rules of professional conduct and ethics of the jurisdictions in which that attorney is licensed to practice, to the extent that those rules are relevant to conduct affecting the integrity of the Board, its process, or its proceedings.
(b) If any party or its attorney fails to comply with any direction or order issued by the Board, or engages in misconduct affecting the Board, its process, or its proceedings, the Board may issue such orders as are just, including the imposition of appropriate sanctions. Sanctions may include:
(1) Taking the facts pertaining to the matter in dispute to be established for the purpose of the case;
(2) Forbidding challenge of the accuracy of any evidence;
(3) Refusing to allow the disobedient party to support or oppose designated claims or defenses;
(4) Prohibiting the disobedient party from introducing in evidence designated documents or testimony;
(5) Striking pleadings or parts thereof, or staying further proceedings until the order is obeyed;
(6) Dismissing or granting the case or any part thereof;
(7) Imposing such other sanctions as the Board deems appropriate.
(c) In addition, the Board may sanction individual attorneys for a violation of any Board order or direction or standard of conduct applicable to such individual where the violation seriously affects the integrity of the Board, its process, or its proceedings. Sanctions may be public or private, and may include admonishment, disqualification from a particular matter, referral to an appropriate licensing authority, or such other action as circumstances may warrant.
(a)
(1)
(2)
(3)
(b)
(c)
(i) 15 days before a scheduled deposition where the attendance of a witness at a deposition is sought, and/or where the production by a witness of books, papers, documents, electronically stored information, and other tangible and intangible things is sought; and
(ii) 30 days before a scheduled hearing where the attendance of a witness at a hearing is sought; except that
(iii) In its discretion the Board may honor requests for subpoenas not made within these time limitations.
(2) A request for a subpoena shall state the reasonable scope and general relevance to the case of the testimony and of any books, papers, documents, electronically stored information, and other tangible and intangible things sought.
(d)
(e)
(2) Where the witness is located in a foreign country, a letter rogatory or subpoena may be issued and served under the circumstances and in the
(f)
(2) A subpoena may be served by a United States marshal or deputy marshal, or by any other person who is not a party and not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by personally delivering a copy to that person and tendering the fees for one day's attendance and the mileage provided by 28 U.S.C. 1821 or other applicable law.
(3) The party at whose instance a subpoena is issued shall be responsible for the payment of fees and mileage of the witness and of the officer who serves the subpoena. The failure to make payment of such charges on demand may be deemed by the Board as a sufficient ground for striking the testimony of the witness and the evidence the witness has produced.
(g)
These revised rules govern proceedings in all cases docketed by the Board on or after a date determined by the Board.
Fish and Wildlife Service, Interior.
Proposed rule; reopening of public comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period for submitting comments on our July 31, 2008 proposed revised designation of critical habitat for the marbled murrelet (
We will accept comments from all interested parties until March 13, 2009. Any comments received after the closing date may not be considered in the final decision on the revised designation of critical habitat.
You may submit comments by one of the following methods:
•
•
We will not accept e-mail or faxes. We will post all comments on
Ken Berg, Field Supervisor, Western Washington Fish and Wildlife Office, 510 Desmond Drive, SE, Suite 102, Lacey, WA 98503-1273, telephone (360) 753-9440, facsimile (360) 753-9008; Paul Henson, Field Supervisor, Oregon Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR 97266, telephone (503) 231-6179, facsimile (503) 231-6195; or Michael Long, Field Supervisor, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521, telephone (707) 822-7201, facsimile (707) 822-8411. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We intend that any final action resulting from the proposed rule will be as accurate and as effective as possible. Therefore, we request comments or suggestions on the proposed revised designation of critical habitat for the marbled murrelet (
We particularly seek comments concerning:
(1) The reasons why we should or should not revise currently designated critical habitat for the marbled murrelet by removing 254,070 ac (102,820 ha) from the 1996 designation, based on new information that is the best available information indicating that these areas do not meet the definition of critical habitat;
(2) Specific information on the amount and distribution of marbled murrelet habitat;
(3) Any foreseeable economic, national security, or other potential impacts resulting from the proposed critical habitat revision, and in particular, any impacts on small entities;
(4) Our proposal to revise 50 CFR 17.11 to adopt the taxonomic clarification for the marbled murrelet to reflect the change from Brachyramphus marmoratus marmoratus to Brachyramphus marmoratus; and
(5) Whether we could improve or modify our approach to revising critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
You may submit your comments and materials concerning the proposed revised designation of critical habitat for the marbled murrelet by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed revised designation of critical habitat for the marbled murrelet, will be available for public inspection on
On May 24, 1996, we designated 3,887,800 acres (ac) (1,573,340 hectares (ha)) as critical habitat for the marbled murrelet in Washington, Oregon, and California. On July 31, 2008, we published a proposed rule in the
The primary authors of this document are the staff members of the Division of Endangered Species, Pacific Region, U.S. Fish and Wildlife Service.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Fish and Wildlife Service, Interior.
Proposed rule; notice of availability of draft post-delisting monitoring plan; reopening of public comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft post-delisting monitoring plan (draft PDM Plan) for the Hawaiian hawk (
Comments from all interested parties on the Hawaiian hawk draft PDM Plan and proposed rule must be received on or before April 13, 2009.
The draft PDM Plan may be downloaded from our Web site at
You may submit comments by one of the following methods:
•
•
Although you may request a copy of the draft PDM plan via e-mail or fax, we will not accept comments on the draft PDM or the proposed rule via e-mail or fax. We will post all comments on
Patrick Leonard, Field Supervisor, Pacific Islands Fish and Wildlife Office, P.O. Box 50088, Honolulu, HI 96850; (telephone 808-792-9400). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339, 24 hours a day, 7 days a week.
We published the proposed rule to delist the Hawaiian hawk, due to recovery, on August 6, 2008, with a 60-day comment period that closed on October 6, 2008 (73 FR 45680). Several studies have shown that range-wide population estimates have been stable for at least 20 years and this species is not threatened with becoming endangered throughout all or a significant portion of its range in the foreseeable future.
Section 4(g)(1) of the ESA requires that we implement a system, in cooperation with the States, to effectively monitor, for not less than 5 years, the status of all species that have been recovered and delisted. Additionally, we are to make prompt use of the emergency listing authority under section 4(b)(7) of the ESA if the recovered species is presented with significant risk to its well being. In order to meet the ESA's monitoring requirements, and to facilitate that efficient collection of data, we have designed a draft plan to detect changes in the status of the Hawaiian hawk.
The Hawaiian hawk draft PDM Plan was developed in cooperation with the Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife (DOFAW), the National Park Service (NPS), and the U.S. Geological Survey, Biological Resources Discipline (USGS-BRD). Our Pacific Islands Fish and Wildlife Office (PIFWO) will have the lead agency responsibility for this monitoring effort, and will coordinate
Comments and materials we receive, as well as supporting documentation we used in preparing the draft PDM Plan and proposed rule, will be available for public inspection on
We intend that any final action resulting from the proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, concerned governmental agencies, the scientific community, industry, or any other interested party concerning the proposed rule. If you previously submitted comments on the proposed delisting rule, please do not resubmit them, as we have already incorporated them into the public record and will fully consider them in our final decision.
We also request comments on the Hawaiian hawk draft PDM Plan. We will take into consideration the substantive comments that we receive by the comment due date indicated above in the
Before including your address, phone number, electronic mail address, or other personal identifying information in your comment, you should be aware that your entire document—including your personal identifying information—may be publicly available at any time. While you may request at the top of your document that we withhold this information from public review, we cannot guarantee that we will be able to do so.
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
Forest Service, USDA.
Notice of meeting.
The Eastern Washington Cascades Provincial Advisory Committee and the Yakima Provincial Advisory Committee will meet on Wednesday, February 25, 2009 at the Okanogan Wenatchee National Forest Headquarters office, 215 Melody Lane, Wenatchee, WA. This meeting will begin at 9 a.m. and continue until 3 p.m. During this meeting Provincial Advisory Committee members will receive information about the Climate Change initiative-adaptation strategies and the Access Travel Management Plan. All Eastern Washington Cascades and Yakima Province Advisory Committee meetings are open to the public.
Direct questions regarding this meeting to Becki Heath, Designated Federal Official, USDA, Okanogan-Wenatchee National Forest, 215 Melody Lane, Wenatchee, Washington 98801, 509-664-9200.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
This survey provides an essential component of the current economic indicators needed for assessing the evolving status of the economy and formulating economic policy. The Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) has designated this survey as a principal federal economic indicator. The shipments and inventory data are essential inputs to the gross domestic product (GDP), while the orders data are direct inputs to the leading economic indicator series. The GDP and the economic indicator series would be incomplete without these data. The survey also provides valuable and timely domestic manufacturing data for economic planning and analysis to business firms, trade associations, research and consulting agencies, and academia.
The data are used for analyzing short- and long-term trends, both in the manufacturing sector and as related to other sectors of the economy. The data on value of shipments, especially when adjusted for change in inventory, measure current levels of production. New orders figures serve as an indicator of future production commitments. Changes in the level of unfilled orders, because of excess or shortfall of new orders compared with shipments, are used to measure the excess (or deficiency) in the demand for manufactured products. Changes in the level of inventories and the relation of these to shipments are used to project future movements in manufacturing activity. These statistics are valuable for analysts of business cycle conditions including members of the Council of Economic Advisers (CEA), the Bureau of Economic Analysis (BEA), the Federal Reserve Board (FRB), the Department of the Treasury, business firms, trade associations, private research and consulting agencies, and the academic community.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer either by fax (202-395-7245) or e-mail (
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Jasmeet Seehra, OMB Desk Officer,
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Signed at Washington, DC, this 30th day of January 2009.
Attest:
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Jo- Carroll Foreign Trade Zone Board, grantee of FTZ 271, requesting special-purpose subzone status for the xylitol, xylose, and mannose manufacturing plant of Danisco U.S.A., Inc., Sweeteners Division (Danisco), located in Thomson, Illinois. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on February 4, 2009.
The Danisco facility (80 employees/154 acres/120,000 sq.ft.) is located at 10994 Three Mile Road (Carroll County), Illinois. The plant is used to produce xylitol (nutritive sweetener), xylose (xylitol precursor) and mannose (dietary supplement) (annual production capacity: 12,000, 9,500 and 50 tons, respectively) for export and the domestic market. The manufacturing process involves filtration, separation, evaporation, hydrogenation and crystallization using domestic and foreign material inputs. Materials that would be purchased from abroad (representing about 20% of finished product value) include: xylose (crystalline, ML), l-arabinose, galactose, mannose, rhamnose, separation resins (i.e., processing aids), and clamping bands (duty rate range: free 5.8%).
FTZ procedures would exempt Danisco from customs duty payments on the foreign materials used in export production (about 50% of annual shipments). On domestic shipments, the company could be able to elect the duty rate that applies to finished xylitol and D-Mannose (duty free) for the foreign material inputs noted above. The application indicates that the savings from FTZ procedures would help improve the facility's international competitiveness.
In accordance with the Board's regulations, Pierre Duy of the FTZ Staff is designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the following address: Office of the
A copy of the application will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at the address listed above and in the “Reading Room” section of the Board's website, which is accessible via www.trade.gov/ftz. For further information, contact Pierre Duy at: pierre_duy@ita.doc.gov, or (202) 482-1378.
Import Administration, International Trade Administration, Department of Commerce.
On September 9, 2008, the Department of Commerce published the preliminary results of the 2006/2007 administrative review of the antidumping duty order on polyethylene retail carrier bags from the People's Republic of China. The review covers two exporters. The period of review is August 1, 2006, through July 31, 2007. We invited interested parties to comment on these preliminary results.
Based on our analysis of the comments received, we have made changes to our margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of the Review.”
February 11, 2009.
Kristin Case or Minoo Hatten, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3174 or (202) 482-1690, respectively.
On September 9, 2008, the Department of Commerce (the Department) published the preliminary results of review of the antidumping duty order on polyethylene retail carrier bags (PRCBs) from the People's Republic of China (PRC). See
We invited parties to comment on the
We have conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The merchandise subject to the antidumping duty order is PRCBs, which may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non-sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches but not longer than 40 inches (101.6 cm).
PRCBs are typically provided without any consumer packaging and free of charge by retail establishments,
Imports of the subject merchandise are currently classifiable under statistical category 3923.21.0085 of the Harmonized Tariff Schedule of the United States (HTSUS).
In proceedings involving non-market-economy (NME) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
In the
In the
In the
All issues raised in the case and rebuttal briefs by parties in this review are addressed in the Issues and Decision Memorandum from John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Acting Assistant Secretary for Import Administration, dated February 4, 2009 (Decision Memo), which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded is in the Decision Memo and attached to this notice as an Appendix. The Decision Memo, which is a public document, is on file in the Central Records Unit, main Department of Commerce building, Room 1117, and is accessible on the Web at http://ia.ita.doc.gov/frn. The paper copy and electronic version of the Decision Memo are identical in content.
Based on our analysis of comments received, we have made several changes in our margin calculations. We have adjusted our surrogate financial-ratio calculations. Specifically, we have excluded “Unloading Charges” from the surrogate financial-ratio calculations. Additionally, we have included “Chit Dividends/Losses” in the surrogate financial-ratio calculations. Moreover, we have corrected several undisputed classification and clerical errors in our surrogate financial-ratio calculations. Finally, we have revised our calculation of Nozawa's freight-revenue offset cap. See Decision Memo.
As a result of our review, we determine that the following final dumping margins exist for the period August 1, 2006, through July 31, 2007:
Upon issuance of these final results, the Department will determine, and U.S. Customs and Border Protection (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 administrative review. For customers/importers of the respondents for which we do not have entered value, we have calculated customer/importer-specific antidumping duty assessment amounts based on the ratio of the total amount of antidumping duties calculated for the examined sales of subject merchandise to the total quantity of subject merchandise sold in those transactions. For customers/importers of the respondents for which we received entered-value information, we have calculated customer/importer-specific antidumping duty assessment rates based on customer/importer-specific
The following cash-deposit requirements will be effective upon publication of this notice of final results of administrative review for shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of the publication as provided by section 751(a)(2)(C) of the Act: (1) the cash-deposit rates for the reviewed companies will be the rates shown above; (2) for previously reviewed or investigated companies not listed above that have separate rates, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (3) for all other PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash-deposit rate will be the PRC-wide rate of 77.57 percent; (4) for all non-PRC exporters of subject merchandise the cash-deposit rate will be the rate applicable to the PRC exporter that supplied that exporter. These deposit requirements shall remain in effect until further notice.
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. See
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act.
Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
Notice of Approval and Availability for the Revised Management Plan for the Chesapeake Bay Virginia National Estuarine Research Reserve.
The Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce has approved the Chesapeake Bay Virginia National Estuarine Research Reserve Management Plan Revision. Notice and an opportunity for public comment on the Revised Management Plan was first published in the
Four sites along the York River comprise the Chesapeake Bay Virginia National Estuarine Research Reserve; Sweet Hall Marsh, Taskinas Creek, the Catlett Islands, and the Goodwin Islands. The four sites were designated as the Chesapeake Bay Virginia National Estuarine Research Reserve in 1991 pursuant to Section 315 of the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1461. The reserve has been operating in partnership with the Virginia Institute of Marine Science under a management plan approved in 1991. Pursuant to 15 CFR Section 92 1.33(c), a state must revise their management plan every five years. The submission of this plan fulfills this requirement and sets a course for successful implementation of the goals and objectives of the reserve. A boundary expansion, a revised geographic vision for the reserve, new facilities, and updated programmatic objectives are notable revisions to the 1991 approved management plan.
The revised management plan outlines the administrative structure; the education, stewardship, and research goals of the reserve; and the plans for future land acquisition and facility development to support reserve operations. This management plan describes how the strengths of the reserve will focus on four areas relevant to the Chesapeake Bay: Functions and linkages of land-margin ecosystems; ecosystem vulnerability to climate and human-induced stressors; water quality and aquatic stressors; and integrated ocean observing systems.
Since 1991, the reserve has added a coastal training program that delivers science-based information to key decision makers in the Chesapeake Bay; has completed a site profile that characterizes the reserve; and has expanded the monitoring, stewardship and education programs significantly. A new administrative building (2003) and a new science and education lab (2005) have been built to support the growth of reserve programs.
With the approval of this management plan, the Chesapeake Bay Virginia National Estuarine Research Reserve will change their total acreage from 2,849 acres to a new total of 2,705 acres. This change is attributable to boundary modifications at two of the reserve sites. At Sweet Hall Marsh, 189 acres of reserve property are being removed from the reserve boundary due to a change in ownership. At the Taskinas Creek site, 44.5 acres are being added to the reserve boundary to provide a deciduous and hardwood forest buffer to protect the estuarine areas used for research and education.
The 1991 Management Plan proposed a multi-phased expansion of the reserve that started with the four sites on the York River and planned to incorporate over 20 sites throughout Virginia to ensure adequate representation of Virginian estuarine areas important to the Chesapeake Bay. This expansion has not occurred since 1991. Due to the anticipated logistical, economic, and programmatic difficulties of having over 20 sites administered as part of the National Estuarine Research Reserve, the 2008 Management Plan focuses on the York River for the next five years.
Michael Miglion at (301) 563-1126 or Laurie McGilvray at (301) 563-1158 of NOAA's National Ocean Service, Estuarine Reserves Division, 1305 East-West Highway, N/ORM5, 10th floor, Silver Spring, MD 20910. For copies of the Chesapeake Bay Virginia Management Plan revision, visit
Department of the Navy, DoD.
Notice.
A notice of availability was published by the U.S. Environmental Protection Agency in the
Mrs. Kimberly Kler, Naval Facilities Engineering Command Northwest, Attention: NWTRC EIS/OEIS, 1101 Tautog Circle, Suite 203, Silverdale, Washington 98315-1101; or
The public comment period on the NWTRC Draft EIS/OEIS will be extended by seven days until February 18, 2009. Comments may be submitted in writing to Naval Facilities Engineering Command Northwest, Attention: Mrs. Kimberly Kler—NWTRC EIS/OEIS, 1101 Tautog Circle, Suite 203, Silverdale, WA 98315-1101. In addition, comments may be submitted online at
1. Humboldt County Library, 1313 Third Street, Eureka, CA;
2. Jefferson County Rural Library, 620 Cedar Avenue, Port Hadlock, WA;
3. Kitsap Regional Library, 1301 Sylvan Way, Bremerton, WA;
4. Lincoln City Public Library, 801 SW Highway 101, Lincoln City, OR;
5. Oak Harbor Public Library, 1000 SE Regatta Drive, Oak Harbor, WA;
6. Port Townsend Public Library, 1220 Lawrence St., Port Townsend, WA;
7. Timberland Regional Library, 420 Seventh Street, Hoquiam, WA.
Department of the Navy, DoD.
Notice.
The CNO Executive Panel will report on the findings and recommendations of the Northeast Asia Subcommittee to the Chief of Naval Operations. The meeting will consist of presentations, briefs, and discussions of the following topics that have been classified at the SECRET Level: Current and future Navy strategy; plans, and policies in support of U.S. deterrence planning crisis management and conflict escalation and control in Northeast Asia. The executive session of this meeting will be closed to the public.
The discussion of such information would be exempt from public disclosure as set forth in section 552b(c)(5), (6), and (7) of title 5, United States Code. For this reason, the executive session of this meeting will be closed to the public.
The closed Executive Session will be held on March 11th, 2009 from 9:30 a.m. to 12 p.m.
The meeting will be held at CNA, 4825 Mark Center Drive, Alexandria, VA 22311-1846, Room 1A01. The meeting will be handicap accessible.
LCDR Eric Taylor, CNO Executive Panel, 4825 Mark Center Drive, Alexandria, VA 22311-1846, telephone: 703-681-4909.
This notice of meeting is provided per the Federal Advisory Committee Act, as amended (5 U.S.C. App.). The executive session of the meeting consists of discussions of classified information. The proposed closed session 9:30 a.m. to 12 p.m. will include a discussion involving future Navy strategy; plans, and policies in support of U.S. deterrence planning crisis management and conflict escalation and control in Northeast Asia. Discussion of such information cannot be adequately segregated from other topics, which precludes opening the executive session of this meeting to the public.
Accordingly, the Secretary of the Navy has determined in writing that the meeting shall be closed to the public because it will be concerned with matters listed in sections 552b(c)(5), and (7) of the title 5, United States Code.
Department of Education, National Assessment Governing Board.
Notice of open meeting and partially closed meetings.
The notice sets forth the schedule and proposed agenda of a forthcoming meeting of the National Assessment Governing Board. This notice also describes the functions of the Board. Notice of this meeting is required under Section 10(a)(2) of the Federal Advisory Committee Act. This document is intended to notify members of the general public of their opportunity to attend. Individuals who will need special accommodations in order to attend the meeting (i.e., interpreting services, assistive listening devices, materials in alternative format) should notify Munira Mwalimu at 202-357-6938 or at
March 5-7, 2009.
Munira Mwalimu, Operations Officer, National Assessment Governing Board, 800 North Capitol Street, NW., Suite 825, Washington, DC 20002-4233, Telephone: (202) 357-6938.
The National Assessment Governing Board is established under section 412 of the National Education Statistics Act of 1994, as amended.
The Board is established to formulate policy guidelines for the National Assessment of Educational Progress (NAEP). The Board's responsibilities include selecting subject areas to be assessed, developing assessment specifications and frameworks, developing appropriate student achievement levels for each grade and subject tested, developing standards and procedures for interstate and national comparisons, developing guidelines for reporting and disseminating results, and releasing initial NAEP results to the public.
On March 5, the Assessment Development Committee will meet in open session from 12 noon to 2:00 p.m. and the Ad Hoc Committee on NAEP Testing and Reporting on Students with Disabilities and English Language Learners will meet in open session from 2 p.m. to 4 p.m. Thereafter, the Executive Committee will meet in open session from 4:30 p.m. to 5 p.m. and in closed session from 5 p.m. to 6 p.m.
During the closed session the Executive Committee will receive a
The second portion of the closed session of the Executive Committee is for discussion of personnel matters. These discussions pertain solely to internal personnel rules and practices of an agency and will disclose information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. As such, the discussions are protected by exemptions 2 and 6 of section 552b(c) of Title 5 U.S.C.
On March 6, the full Board will meet in open session from 8:30 a.m. to 9:15 a.m. The Board will approve the agenda and the November 2008 Board minutes. Following these actions, the oath of office will be administered to a new Board member. Thereafter, the Governing Board will receive a report from the Interim Executive Director of the Governing Board, and hear an update on the work of the National Center for Education Statistics (NCES).
On March 6, two of the Board's standing committees—the Assessment Development Committee and the Reporting and Dissemination Committee will meet in open session from 9:45 a.m. to 12:15 p.m.
On March 6, the Committee on Standards, Design and Methodology will meet in closed session from 9:45 a.m. to 10:20 a.m. and in open session from 10:20 a.m. to 12:15 p.m. During the closed session, the Committee will review proposed 12th Grade Preparedness Research Studies, independent government costs estimates for the studies, and projected timelines for contract awards. The information discussed in closed session will be essential to the Committee's recommendations regarding preparedness research studies to be implemented and the order of implementation. Public disclosure of information discussed would significantly impede implementation of the Governing Board's contracts and provide an undue advantage to potential bidders, and is therefore protected by exemption 9(B) of section 552b(c) of Title 5 U.S.C.
On March 6 from 12:30 p.m. to 1:30 p.m. the full Board will meet in closed session to receive a briefing on the NAEP 2008 Long Term Trends Report in Reading and Mathematics from the Associate Commissioner of NCES. The Governing Board will be provided with embargoed data on the report that cannot be discussed in an open meeting prior to their official release. The meeting must therefore be conducted in closed session as premature disclosure of data would significantly impede implementation of the NAEP program, and is therefore protected by exemption 9(B) of section 552b(c) of Title 5 U.S.C.
From 1:30 p.m. to 2:30 p.m. the Board will participate in a panel discussion with former Board Chairs. From 2:45 p.m. to 3:45 p.m., the Board will receive an update on the work of the Ad Hoc Committee on NAEP Testing and Reporting on Students with Disabilities and English Language Learners. This session will be followed by an update from WestEd on the NAEP 2010 Technological Literacy Framework Project which is scheduled to take place from 3:45 p.m. to 4:30 p.m. The March 6 session of the Board meeting is scheduled to adjourn at 4:30 p.m.
On March 7, the Nominations Committee will meet in closed session from 7:15 a.m. to 8:30 a.m. to review and discuss confidential information regarding nominees received for Board vacancies for terms beginning on October 1, 2009. The Committee will recommend a final slate of candidates for Board discussion and action. Following the Committee meeting, the full Board will meet in closed session from 9 a.m. to 9:30 a.m. to receive and discuss the final list of nominees to be submitted to the Secretary of Education for Board appointments. These discussions pertain solely to internal personnel rules and practices of an agency and will disclose information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. As such, the discussions are protected by exemptions 2 and 6 of section 552b(c) of Title 5 U.S.C.
The full Board will meet in open session on March 7 from 9:30 a.m. to 10 a.m. to discuss the future direction of NAEP and the Governing Board. From 10:15 a.m. to 12 p.m. the Board will receive and take action on Committee reports. The March 7, 2009 session of the Board meeting is scheduled to adjourn at 12 p.m.
Detailed minutes of the meeting, including summaries of the activities of the closed sessions and related matters that are informative to the public and consistent with the policy of section 5 U.S.C. 552b(c) will be available to the public within 14 days of the meeting. Records are kept of all Board proceedings and are available for public inspection at the U.S. Department of Education, National Assessment Governing Board, Suite #825, 800 North Capitol Street, NW., Washington, DC, from 9 a.m. to 5 p.m. Eastern Standard Time, Monday through Friday.
The official version of this document is the document published in the
Federal Energy Regulatory Commission.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) is
Comments on the information collection are due by April 14, 2009.
An example of this collection of information may be obtained from the Commission's Web site (at
Comments may be filed electronically via the eFiling link on the Commission's Web site at
Commenters filing electronically should not make a paper filing. Commenters that are not able to file electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426.
Users interested in receiving automatic notification of activity in this docket may do so through eSubscription (at
Michael Miller, Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426. He may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collected under the requirements of FERC-725 (“Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards” (OMB Control No. 1902-0225)) is used by the Commission to implement the statutory provisions of Title XII, subtitle A of the Energy Policy Act of 2005 (EPAct 2005).
The Electricity Modernization Act of 2005 was enacted into law as part of the Energy Policy Act of 2005 on August 8, 2005. Subtitle A of the Electricity Modernization Act amended the Federal Power Act (FPA) by adding a new section 215, titled “Electric Reliability.” Section 215 of the FPA buttresses the Commission's efforts to strengthen the reliability of the interstate grid through the granting of new authority to provide for a system of mandatory Reliability Standards developed by the Electric Reliability Organization (ERO)
On February 3, 2006, the Commission issued Order No.672
Once certified, the ERO must submit each proposed Reliability Standard to the Commission for approval. Only a Reliability Standard approved by the Commission is enforceable under section 215 of the FPA.
The ERO may delegate its enforcement responsibilities to a Regional Entity. Delegation is effective only after the Commission approves the delegation agreement. A Regional Entity may also propose a Reliability Standard to the ERO for submission to the Commission for approval. This Reliability Standard may be either for application to the entire interconnected Bulk-Power System or for application only within its own region.
The ERO or a Regional Entity must monitor compliance with the Reliability Standards. It will direct a user, owner or operator of the Bulk-Power System that violates a Reliability Standard to comply with the Reliability Standard. The ERO or Regional Entity may impose a penalty on a user, owner or operator for violating a Reliability Standard, subject to review by, and appeal to, the Commission.
Subtitle A of the Electricity Modernization Act of 2005 also includes two reliability-related provisions that are not part of the section 215 of the FPA. First section 1211(b) of the Act provides that the ERO certified by the Commission as well as Regional Entities are not departments, agencies or instrumentalities of the United States Government. Section 1211 (c) provides that federal agencies responsible for approving access to electric transmission or distribution facilities located on lands within the United States will, in accordance with applicable law, expedite any federal agency approvals that are necessary to allow the owners or operators of these facilities to comply with a FERC-approved Reliability Standard that pertains to vegetation management, electric service restoration, or resolution of situations that imminently endanger the reliability or safety of the facilities.
Order No. 672 set forth the criteria that an ERO applicant must satisfy to qualify as the ERO, including the ability to develop and enforce Reliability Standards.
The Electricity Modernization Act of 2005 buttresses the Commission's efforts to strengthen the interstate transmission grid through the granting of authority pursuant to section 215 of the FPA which provides for a system of mandatory reliability rules developed by the ERO, established by the Commission, and enforced by the Commission, subject to Commission review.
A submission of the information is necessary for the Commission to carry
The methodology for estimating the totals for the 3-year self assessment follows. Staff estimates that the self assessment will take 6 months to complete. In order for NERC to complete the work in half the time, we assume that NERC must hire double the workforce, so 10 contractors are used in the present calculation. The $1,050,000 was taken directly from NERC's 2009 Business Plan and Budget.
The estimated annual total cost to respondents is $1,380,503
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) training personnel to respond to an information collection; (4) searching data sources; (5) preparing and reviewing the information collection; and (6) transmitting or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect or overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
On November 5, 2008, Corral Creek South Hydro, LLC filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Corral Creek South Pumped Storage Project to be located in Twin Falls County, Idaho on federal land administered by the Bureau of Land Management. The proposed project would be closed loop and would not be built on an existing body of water.
The proposed project would consist of: (1) An upper earthen dam with a height of 180 feet and a length of 8,400 feet; (2) an upper reservoir with a surface area of 118 acres, a capacity of 9,120 acre-feet, and a maximum pool elevation of 6,620 feet msl; (3) a lower earthen dam with a height of 200 feet and a length of 4,140 feet; (4) a lower reservoir with a surface area of 113
Comments, motions to intervene, notices of intent and competing applications may be filed electronically via the internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
For more information on how to submit these types of filings please go to the Commission's Web site located at
On November 5, 2008, Mesa De Los Carros Hydro, LLC filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Mesa De Los Carros Pumped Storage Project to be located in San Miguel County, New Mexico. The proposed project would be closed loop and would not be built on an existing body of water.
The proposed project would consist of: (1) An upper earthen dam with a height of 88 feet and a length of 11,880 feet; (2) an upper reservoir with a surface area of 276 acres, a capacity of 10,394 acre-feet, and a maximum pool elevation of 6,900 feet msl; (3) a lower earthen dam with a height of 110 feet and a length of 9,662 feet; (4) a lower reservoir with a surface area of 396 acres, a capacity of 11,652 acre-feet, and a maximum pool elevation of 5,560 feet msl; (5) a 29 foot diameter, 9,000 foot long, steel penstock; (6) a powerhouse containing 10 pump/turbine units with a total installed capacity of 1,154 MW; (7) a 19.5 mile long, 500 kV transmission line and; (8) appurtenant facilities. The proposed project would have an annual production of 4,214 GWh which would be sold to a local utility.
Comments, motions to intervene, notices of intent and competing applications may be filed electronically via the internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
For more information on how to submit these types of filings please go to the Commission's Web site located at
On November 3, 2008, Mississippi L&D #25 Hydro, LLC filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Mississippi River Lock & Dam 25 Project to be located in Lincoln County, Missouri and Calhoun County, Illinois. The proposed project would utilize the existing U.S. Army Corps of Engineers Lock and Dam 25 on the Mississippi River.
The proposed project would consist of: (1) A powerhouse containing 4 turbine/generator units with a total installed capacity of 80.4 MW; (2) a 6.8 mile long, 34.5 kV transmission line and; (3) appurtenant facilities. The proposed project would have an annual production of 403 GWh which would be sold to a local utility.
Comments, motions to intervene, notices of intent and competing applications may be filed electronically via the internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions
For more information on how to submit these types of filings please go to the Commission's Web site located at
On November 5, 2008, Swan Lake North Hydro, LLC filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Swan Lake North Pumped Storage Project to be located in Klamath County, Oregon on federal land managed by the Bureau of Land Management. The proposed project would be closed loop and would not be built on an existing body of water.
The proposed project would consist of: (1) An upper earthen dam with a height of 70 feet and a length of 11,850 feet; (2) an upper reservoir with a surface area of 260 acres, a capacity of 8,300 acre-feet, and a maximum pool elevation of 5,500 feet msl; (3) a lower earthen dam with a height of 80 feet and a length of 8,415 feet; (4) a lower reservoir with a surface area of 215 acres, a capacity of 8,820 acre-feet, and a maximum pool elevation of 4,200 feet msl; (5) a 29 foot diameter, 5,860 foot long, steel penstock; (6) a powerhouse containing 10 pump/turbine units with a total installed capacity of 1,144 MW; ( 7) a 12.5 mile long, 500 kV transmission line and; (8) appurtenant facilities. The proposed project would have an annual production of 3,340 GWh which would be sold to a local utility.
Comments, motions to intervene, notices of intent and competing applications may be filed electronically via the internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
For more information on how to submit these types of filings please go to the Commission's Web site located at
On November 5, 2008, Yegua Mesa Hydro, LLC filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Yegua Mesa Pumped Storage Project to be located in San Miguel County, New Mexico on federal land administered by the Bureau of Land Management. The proposed project would be closed loop and would not be built on an existing body of water.
The proposed project would consist of: (1) An upper earthen dam with a height of 94 feet and a length of 11,088 feet; (2) an upper reservoir with a surface area of 380 acres, a capacity of 9,868 acre-feet, and a maximum pool elevation of 6,800 feet msl; (3) a lower earthen dam with a height of 99 feet and a length of 5,597 feet; (4) a lower reservoir with a surface area of 380 acres, a capacity of 9,365 acre-feet, and a maximum pool elevation of 5,380 feet msl; (5) a 27 foot diameter, 9,690 foot long penstock; (6) a powerhouse containing 10 pump/turbine units with a total installed capacity of 1,100 MW; ( 7) a 14 mile long, 500 kV transmission line; and (8) appurtenant facilities. The proposed project would have an annual production of 3,993 GWh which would be sold to a local utility.
Comments, motions to intervene, notices of intent and competing applications may be filed electronically via the internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
For more information on how to submit these types of filings please go to the Commission's Web site located at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern Time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Commission staff member James Hastreiter (Office of Energy Projects (503) 552-2760;
As “non-decisional” staff, Mr. Hastreiter will not participate in an advisory capacity in the Commission's review of any offer of settlement or settlement agreement, or deliberations concerning the disposition of the relicense application.
Different Commission “advisory staff” will be assigned to review any offer of settlement or settlement agreement, and to process the relicense application, including providing advice to the Commission with respect to the agreement and the application. Non-decisional staff and advisory staff are prohibited from communicating with one another concerning the settlement and the relicense application.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Mira Compressor Station
This notice announces the opening of the scoping process we will use to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine which issues need to be evaluated in the EA. Please note that the scoping period will close on March 6, 2009.
This notice is being sent to affected landowners; federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. State and local government representatives are asked to notify their constituents of this planned project and encourage them to comment on their areas of concern.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
Gulf Crossing proposes to upgrade the two previously certificated turbine-compressor units at the Mira Compressor Station to larger turbine compressor units to increase the total horsepower of the Mira Compressor Station by 14,896. Gulf Crossing would install a new Solar Mars 100-15000S/C452 natural gas-fired turbine and a Solar Titan 130-20502S/C653 natural gas-fired turbine in place of the previous units for a total Station horsepower of 35,500. In addition, minor upgrades to the station's auxiliary facilities would be required.
The general location of the project facilities is shown in Appendix 1.
If approved, Gulf Crossing proposes to commence construction of the proposed facilities in July 2009.
All construction activities associated with the modifications to the Mira Compressor Station would be located within the previously certificated facility footprint. A total of 20 acres would be utilized during construction, and 10 acres would be retained within the fenced area of the compressor station.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, the Commission staff requests public comments on the scope of the issues to address in the EA. All comments received are considered during the preparation of the EA. State and local government representatives are encouraged to notify their constituents of this proposed action and encourage them to comment on their areas of concern.
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife;
• Air quality and noise;
• Endangered and threatened species;
• Public safety.
We will also evaluate possible alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure your comments are considered, please carefully follow the instructions in the public participation section below.
With this NOI, we are asking federal, state, and local agencies with jurisdiction and/or special expertise with respect to environmental issues to formally cooperate with us in the preparation of the EA. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Additional agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this NOI.
We have identified potential impacts to air quality and a potential increase in noise impacts as two issues that we think deserve attention based on a preliminary review of the proposed facilities and the environmental information provided by Gulf Crossing. This preliminary list of issues may be changed based on your comments and our analysis.
You can make a difference by providing us with your specific comments or concerns about the Mira Amendment. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send in your comments so that they will be received in Washington, DC on or before March 6, 2009.
For your convenience, there are three methods in which you can use to submit your comments to the Commission. In all instances please reference the project docket number CP07-398-002 with your submission. The Commission encourages electronic filing of comments and has dedicated eFiling
(1) You may file your comments electronically by using the Quick Comment feature, which is located on the Commission's internet Web site at
(2) You may file your comments electronically by using the
(3) You may file your comments via mail to the Commission by sending an original and two copies of your letter to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426.
An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. This includes all landowners who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within distances defined in the Commission's regulations of certain aboveground facilities.
If you do not want to send comments at this time but still want to remain on our mailing list, please return the Information Request (Appendix 2). If you do not return the Information Request, you will be taken off the mailing list.
In addition to involvement in the EA scoping process, you may want to become an “intervenor,” which is an official party to the proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in a Commission proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “e-filing” link on the Commission's Web site.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts that could result from the construction and operation of the 300 Line Project. The project is planned by Tennessee Gas Pipeline Company (TGP) to expand the natural gas transportation capacity of its existing 300 Line pipeline in Pennsylvania and New Jersey.
This Notice of Intent (NOI) announces the opening of the scoping process used to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine which issues need to be evaluated in the EA. The staff will also use the scoping process to determine whether preparation of an environmental impact statement is more appropriate for this project based on the anticipated level of impacts. Please note that the scoping period will close on March 6, 2009.
Comments may be submitted in written or verbal form. Further details on how to submit written comments are provided in the Public Participation section of this notice. In lieu of or in addition to sending written comments, we invite you to attend the public scoping meetings scheduled as follows.
Interested groups and individuals are encouraged to attend the meetings and to present comments on the environmental issues they believe should be addressed in the EA. A transcript of the meetings will be generated so that your comments will be accurately recorded.
This notice is being sent to affected landowners; federal, state, and local
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the planned facilities. The pipeline company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Internet Web site (
TGP is requesting authorization to construct, own, and operate the facilities necessary to increase natural gas delivery capacity to the northeast region of the United States by approximately 300,000 dekatherms per day. In addition to increasing natural gas delivery capacity in the region, TGP would also upgrade certain existing compressor units to improve overall system reliability.
• Installation of approximately 128.4 miles of new 30-inch-diameter pipeline in seven separate looping
• Construction of a new 15,000 horsepower (hp) compressor station (Station 303) in Venango County, Pennsylvania;
• Construction of a new 15,400 hp compressor station (Station 310) in McKean County, Pennsylvania;
• Modification to an existing meter station in Bergen County, New Jersey;
• Modifications to seven existing compressor stations in Potter (Station 313), Tioga (Station 315), Bradford (Station 317 and 319), Susquehanna (Station 321), and Pike Counties (Station 323), Pennsylvania, and Sussex County (Station 325), New Jersey, resulting in increased hp at five of the seven existing stations; and
• Installation of associated appurtenant aboveground facilities including mainline valves and pig
The location of the project facilities is shown in Appendix 1.
Construction of the 300 Line Project would require about 2,091.7 acres of land including pipeline, aboveground facilities, appurtenant facilities, and pipe storage and contractor yards. Following construction, about 1,149.9 acres would be used for operation of the project facilities. The area disturbed during construction but not required for operation would generally be allowed to revert to pre-construction condition.
The planned pipeline loops would be located within and directly adjacent to the existing 300 Line right-of-way and at a typical offset of 25 feet from the existing pipeline to the extent practicable. Construction and operation of the two new compressor stations would occur within larger land tracts to be acquired by TGP, and the proposed modifications to existing compressor stations would occur within the existing fenceline of the facilities.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this NOI, the Commission staff requests public comments on the scope of the issues to address in the EA. All comments received will be considered during the preparation of the EA. State and local government representatives are encouraged to notify their constituents of this proposed action and encourage them to comment on their areas of concern.
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife;
• Air quality and noise;
• Endangered and threatened species; and
• Public safety.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's Pre-Filing Process. The purpose of the Pre-Filing Process is to encourage early involvement of interested stakeholders and to identify and resolve issues before an application is filed with the FERC. As part of our Pre-Filing Process review, we have begun to contact some federal and state agencies to discuss their involvement in the scoping process and the preparation of the EA. In addition, representatives from the FERC participated in public open houses sponsored by TGP in the project area in December 2008 and January 2009, to explain the environmental review process to interested stakeholders.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to federal, state, and local agencies; public interest groups; interested individuals; affected landowners; newspapers; libraries; and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the
With this NOI, we are asking federal, state, and local agencies with jurisdiction and/or special expertise with respect to environmental issues to formally cooperate with us in the preparation of the EA. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Additional agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this NOI.
We have already identified several issues that we think deserve attention based on a preliminary review of the planned facilities, comments made to us at TGP's open houses, preliminary consultations with other agencies, and the environmental information provided by TGP. This preliminary list of issues may be changed based on your comments and our analysis:
• Compatibility with the Wallkill River National Wildlife Refuge in Sussex County, New Jersey, where proposed Loop 325 would cross the refuge for approximately 0.8 mile;
• Compatibility of the planned Loop 325 on lands under jurisdiction of the New Jersey Highlands Council;
• Potential impacts on nearby residences including wells and septic systems, land use restrictions, and property values;
• Aesthetic impacts, including the loss of trees in residential areas;
• Potential impacts on threatened or endangered species including the Indiana bat and the Bog turtle;
• Noise concerns associated with the new compressor stations (Stations 303 and 310); and
• Assessment of alternatives including alternatives that would avoid or reduce impacts on the Wallkill River National Wildlife Refuge and Long Pond Iron Works State Park, and alternative compressor station locations.
You can make a difference by providing us with your specific comments or concerns about the 300 Line Project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send in your comments so that they will be received in Washington, DC on or before March 6, 2009.
For your convenience, there are three methods you can use to submit your written comments to the Commission. In all instances please reference the project docket number PF09-1-000 with your submission. The Commission encourages electronic filing of comments and has dedicated eFiling expert staff available to assist you at 202-502-8258 or
(1) You may file your comments electronically by using the Quick Comment feature, which is located on the Commission's internet Web site at
(2) You may file your comments electronically by using the
(3)
Label one copy of the comments for the attention of Gas Branch 1, PJ-11.1.
Once TGP formally files its application with the Commission, you may want to become an “intervenor,” which is an official party to the proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in a Commission proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “eFiling” link on the Commission's Web site. Please note that you may not request intervenor status at this time; you must wait until the formal application is filed with the Commission.
An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project. This includes all landowners who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within distances defined in the Commission's regulations of certain aboveground facilities.
If you do not want to send comments at this time but still want to remain on our mailing list, please return the Information Request (Appendix 2). If you do not return the Information Request, you will be taken off the mailing list.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Public meetings or site visits will be posted on the Commission's calendar located at
Finally, to request additional information on the project or to provide comments directly to the project sponsor, you can contact TGP directly be calling toll free at 1-866-208-3676. Also, TGP has established an Internet Web site at
Take notice that on January 22, 2009 Cameron Interstate Pipeline Company, LLC submitted a request for waiver of the requirement to submit the 2008 FERC Form No. 2 and a temporary waiver of the requirement to submit the FERC Form 3-Q under sections 260.1 and 260.300 of the Commission regulations.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on January 30, 2009, Carolina Gas Transmission Corporation (Carolina Gas), 601 Old Taylor Road, Cayce, South Carolina 29033, filed in Docket No. CP09-55-000, an application pursuant to sections 157.205 and 157.210 of the Commission's Regulations under the Natural Gas Act (NGA) as amended, to convert an existing compressor unit from standby to base load service, under Carolina Gas' blanket certificate issued in Docket No. CP06-72-000,
Carolina Gas proposes to convert an existing standby 1,050 horsepower Solar Saturn turbine compressor unit to base load service at its Grover compressor station near Blacksburg, Cherokee County, South Carolina. Carolina Gas states that converting the standby compressor unit to base load service would allow Carolina Gas to meet shippers' request for an additional 25,000 Dekatherms per day of natural gas service. Carolina Gas also states that it would cost an estimated $413,000 to place the compressor unit into base load service.
Any questions concerning this application may be directed to Samuel L. Dozier, Vice President, Commercial and Field Operations, Carolina Gas Transmission Corporation, 601 Old Taylor Road, Cayce, South Carolina 29033, or via telephone at (803) 217-2234.
This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before March 13, 2009.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2008-0707, to (1) EPA online using
Dave Sosnowski, Environmental Protection Agency, Office of Transportation and Air Quality, Transportation and Regional Programs Division, 2000 Traverwood, Ann Arbor, Michigan 48105; telephone number: 734-214-4823; fax number: 734-214-4052; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On October 1, 2008 (73 FR 57095), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2008-0707, which is available for online viewing at
Use EPA's electronic docket and comment system at
General program effectiveness is determined by the degree to which a program misses, meets, or exceeds the emission reductions committed to in the state's approved State Implementation Plan (SIP), which, in turn, must meet or exceed the minimum emission reductions expected from the relevant performance standard, as promulgated under EPA's revisions to 40 CFR part 51, in response to requirements established in section 182 of the Clean Air Act Amendments of 1990. This information will be used by EPA to determine a program's progress toward meeting requirements under 40 CFR part 51, as well as to assess national trends in the area of basic and enhanced I/M programs and to provide background information in support of periodic site visits and evaluations.
Environmental Protection Agency (EPA).
Notice.
The Tribal Pesticide Program Council (TPPC) will hold a 2-day meeting beginning on Thursday, March 12, 2009 and ending on Friday, March 13, 2009. This notice announces the location and times for the meeting and sets forth the tentative agenda topics.
The meeting will be held on March 12, 2009, from 9 a.m. to 5 p.m. and March 13, 2009 from 9 a.m. to 5 p.m. To request accommodation of a disability, please contact the person listed under
The meeting will be held at the Activities and Recreation Center, Ballroom A, University of California, Davis, CA (UC-Davis). For directions to, or information about, the meeting facility only, call UC-Davis at (530) 754-5306
Kristen Hendricks, Field and External Affairs Division, Office of Pesticide Programs (7506P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460- 0001; telephone number: (703) 308-0308; fax number: (703) 308-1850; e-mail address:
You may be interested in this meeting if you are interested in the TPPC's information-exchange relationship with EPA regarding important issues in Indian country related to human and environmental exposure to pesticides and insight into EPA's decision-making process. All parties are invited and encouraged to participate as appropriate. Potentially affected entities may include, but are not limited to: Those persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug and Cosmetic Act (FFDCA), or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Because other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult either person listed under
1.
2.
1. TPPC State of the Council Report.
2. Tribal reports and presentations.
3. OPP updates.
4. Updates from EPA’s Office of Enforcement and Compliance Assurance.
5. Circuit rider programs.
6. EPA Region and Regional Sub-lead reports.
7. Report and discussion on the use of restricted-use pesticides in Indian Country.
8. Update on EPA OPPTS Strategic Planning.
9. Tribal Caucus (TPPC Only).
Environmental protection, Tribes, Pesticides.
Notice of a partially open meeting of the board of directors of the Export-Import Bank of the United States.
Thursday, February 12, 2009 at 9:30 a.m. The meeting will be held at Ex-Im Bank in Room 1143, 811 Vermont Avenue, NW., Washington, DC 20571.
Item No. 1: Resolution presented to Howard A. Schweitzer General Counsel upon his resignation.
The meeting will be open to public participation for Item No. 1 only.
For further information, contact: Office of the Secretary, 811 Vermont Avenue, NW., Washington, DC 20571 (Tele. No. 202-565-3957).
Federal Communications Commission.
Notice.
The Commission is required to report annually to Congress on the status of competition in markets for the delivery of video programming. This document solicits information from the public for use in preparing the next competition report that is to be submitted to Congress. Comments and data submitted by parties will be used in conjunction with publicly available information and filings submitted in relevant Commission proceedings to assess the extent of competition in the market for the delivery of video programming.
Interested parties may file comments on or before February 27, 2009, and reply on or before March 27, 2009.
You may submit comments, identified by MB 07-269, by any of the following methods:
•
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Dana Scherer, Media Bureau at (202) 418-2330.
This is a synopsis of the Commission's
1. Section 628(g) of the Communications Act of 1934, as amended, directs the Commission to report to Congress annually on the status of competition in the market for the delivery of video programming. This
2. We encourage thorough and substantive submissions from industry participants and state and local regulators with the best knowledge of the questions and issues raised to ensure the accuracy and usefulness of this Report. We will augment reported information with submissions in other Commission proceedings. In the past, we have had to rely on data from publicly available sources when information has not been provided directly by industry participants and will do so again if necessary. Nevertheless, we are concerned that such publicly available information may not be adequate, especially when various sources provide inconsistent data.
3. We ask commenters to provide data on video programming distributors, including cable systems; direct broadcast satellite (DBS) services; large home satellite dish (C-Band) providers; broadband service providers (BSPs); private cable operators (PCO), also called satellite master antenna television systems; open video systems (OVS); wireless cable systems using frequencies in the broadband radio and educational broadband services; local exchange carrier (LEC) systems; utility-operated systems; commercial mobile radio services (CMRS) and other wireless providers; and over-the-air broadcast television stations. In addition, we seek information on video programming distributed over the Internet and via Internet Protocol (IP) networks. We also seek information that will allow us to evaluate horizontal concentration in the video marketplace, vertical integration between programming distributors and programming services, and other issues relating to the programming available to consumers. We request information on technical issues, including equipment and emerging services. We continue to seek comments regarding developments in foreign markets, as they may contribute to our understanding of domestic markets and provide insight into factors affecting video competition. Where possible and relevant, we request data as of June 30, 2007.
4. We seek information and statistical data for each type of multichannel video programming distributor (MVPD), including:
(a) The number of homes passed by each wired technology;
(b) the number of homes capable of receiving service via each wireless technology;
(c) the number of subscribers and penetration rates for cable services, including basic cable service tier (BST), cable programming service tier (CPST), themed tiers (
(d) for noncable MVPDs, the number of subscribers and penetration rates for each available programming tier, a la carte services, PPV, and VOD;
(e) how such cable penetration/subscription rate numbers were derived, and whether the party providing the data considers it a representative sample of the overall cable industry;
(f) available channel capacity of the system; the number, type, and identity of video programming channels offered, the channel capacity required for such offerings and the tier or tiers on which such programming is offered; and the channel capacity of the system used for non-video services;
(g) prices charged for various programming packages and the equipment required to receive them;
(h) industry and individual firm financial information, such as total revenue and revenue by individual company segments or services, cash flow, and expenditures;
(i) information on how video programming distributors compare in terms of relative size and financial resources;
(j) data that measure the audience reach of video programming networks as well as relative control over the video distribution market; and
(k) information on video distributor expansion into new markets, such as local telephony, high-speed Internet access, wireless telephone service, the percentage of subscribers taking these services, and the competitive advantages of offering these services, as well as information on new technologies being considered, tested, or deployed by MVPDs for video, voice, and data offerings.
5. We are interested in data and information on the number of homes that have a choice of MVPD services. How many households can receive service from one or more providers (
6. To evaluate substitution between MVPD technologies, we seek data on the relative prices of similar services offered by different types of competitors. Many cable operators offer or plan to offer bundled service packages, such as video, voice, and high-speed data, as do other MVPDs. What effect does bundling have on head-to-head competition, and what effect does it have on MVPDs that do not offer bundled services due to technical or other limitations? We are interested in investigating methods for measuring and comparing bundled service packages, such as video, voice, and high-speed data, among MVPDs.
7. Barriers to entry can be regulatory, technological, or financial in origin. We seek to understand what these barriers are and how they impede competition in the MVPD marketplace. Are there any existing Commission regulations or statutory provisions that prevent new entrants from promptly deploying their networks and offering consumers new video service options? Are there steps that Congress and the Commission may take to encourage investment in new broadband networks? We seek comment on what modifications, if any, are needed to pertinent regulations or statutes to foster competition in the deployment of broadband networks and the provision of video services.
8. We request detailed information about nonbroadcast programming networks, including ownership, the type of programming networks (
9. We request information on children's, locally-originated, and local news and community affairs programming distributed to consumers by broadcasters and MVPDs. To what extent is programming offered in languages other than English, nationally and locally? How is such programming packaged (
10. We seek comment on programmers' access to MVPDs, including comment on the effectiveness of the program carriage and channel occupancy rules. We request information on the number of independent networks that launched between June 2006 and June 2007, including total subscribers; the distributors that carry them; the manner of carriage (
11. We seek information on how video programming distributors package and market their programming. To what extent are MVPDs offering programming on an a la carte basis or in mixed bundles, themed tiers, and subscriber-selected tiers? We seek information on family friendly programming, including the cost and content of these packages. Are family tiers offered on a stand-alone basis or must consumers subscribe to other tiers (
12. We seek to assess the extent to which MVPDs have been able to acquire or license programming owned by other video distributors. Is there specific programming, national or regional/local, that is unavailable to either cable or noncable operators and, if so, why? What effect does vertical integration have on competing distributors' ability to obtain programming? Are there certain “must-have” programming services, or genres of services (
13. We request comment on the effectiveness of our program access rules. What, if any, video programming services that were once delivered to MVPDs by satellite have been migrated to terrestrial delivery? Which terrestrially delivered networks are unavailable to some MVPDs under the so-called terrestrial exemption to the Commission's program access rules? To what extent are terrestrially delivered programming services owned by, operated by, or affiliated with a programming distributor available to other video programming distributors? What exclusive programming arrangements exist between programmers and MVPDs? With the advent of VOD, what are the competitive implications of video programming distributors securing exclusive rights to programming for inclusion in their VOD offerings?
14. We request comment on competition issues specific to video programming distribution in rural and smaller markets, including the number of MVPDs serving small and rural markets, their subscribership, the services and video programming options they offer, the technology used to provide their services, and the cost for such video services. How does competition differ between rural and smaller markets and larger, urban areas? We seek information on alternative technologies, such as digital subscriber line (DSL) and fiber-based Internet Protocol television (IPTV) that small and rural operators are adopting. We seek information on any existing differences in program carriage agreements between larger urban systems and those in small or rural areas, including information on whether video programming buying cooperatives help small or rural operators obtain programming at discounted rates.
15. We also seek specific information regarding MVPD service available in Alaska and Hawaii. We are interested in whether, and how, cable, DBS, and other MVPD services offered in these
16. We seek comment on any factors that are unique to competition in multiple dwelling units (MDUs). How common is it for consumers to have choices among video programming services within MDUs?
17. We also invite commenters to provide information on access to programming by persons with disabilities. We seek comment on what, if any, concerns industry and the public have with meeting these increased captioning requirements for new Spanish language and “pre-rule” English language programming. We also seek information on the level and quality of captioning for non-English language programming. We seek information on the quality, accuracy, placement, technology, and any instances of missing or delayed captions, and the amount of digital programming that contains closed captions translated from analog closed captions. We seek comment on the extent to which digital programming may not be captioned and ask why this is the case. We seek information on the availability of video description services, currently provided by programmers on a voluntary basis and the amount and types of video programming that includes video descriptions and whether MVPDs generally carry video descriptions inserted by programmers.
18. For the 14th annual report, we seek updated information on the performance of the cable television industry. We request information regarding cable operators' continuing investments to upgrade their plant and equipment to increase channel capacity, create digital services, or offer advanced services. We request information on the development of various methods or technologies to increase system capacity, such as switched digital video technology.
19. For individual cable multiple system operators (MSOs), we request information on the number of systems upgraded, the analog channel capacity resulting from upgrades, the digital channel capacity resulting from upgrades (including the digital to analog compression ratio used), the number of systems with digital tiers, the number of households where digital cable services are available, and the number of subscribers to these digital services. To what extent is new capacity used for non-video services? How have the structure and price of service tiers changed when systems become all digital? How would they change in the future as more systems become all digital? What are the implications for customer premises equipment?
20. We seek information on mergers and other cable system transactions that occurred between June 2006 and June 2007, including the names of the buyer and seller, date of the transaction, type of transaction (
21. We seek information on whether and how cable operators are changing the way they package programming and the role actual or potential competition played in any such changes. Do cable operators offer, or plan to offer, digital programming genre packages or themed tiers (
22. Section 612(g) of the Communications Act provides that when cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households, the Commission may promulgate any additional rules necessary to provide diversity of information sources. We previously concluded that the first prong of the test has been met. We request data and comment on whether both prongs of the 70/70 test have been met. That is, cable operators should submit the following information on a zip code basis: (a) total number of homes the cable operator currently passes; (b) total number of homes the cable currently passes with 36 or more activated channels; (c) total number of subscribers, including all subscribers in MDUs; and (d) total number of subscribers with 36 or more activated channels. To the extent that cable operators filed 2007 data for the purposes of complying with our 2006 Report, they need not submit this same data again. We also seek comment on whether telephone companies that provide video service and overbuilders should be included in the 70/70 calculation.
23. Under sections 614 and 615 of the Communications Act, cable operators must set aside channel capacity for carriage of local broadcast television stations. We request data on the percentage of broadcast stations carried on cable pursuant to retransmission consent agreements and the percentage that are carried pursuant to the must carry provisions. We also seek information on the percentage of their required set-aside channels that cable operators currently are using to carry local broadcast signals. To what extent do cable operators pay cash for broadcast station carriage rights, carry nonbroadcast programming networks, provide advertising time, or otherwise compensate broadcasters? We ask commenters to address the retransmission consent process, including the effect of retransmission consent compensation on cable rates, the ability of small cable operators to secure retransmission consent on fair and reasonable terms, and the impact on MVPDs and consumers of agreements that require the carriage of nonbroadcast networks in exchange for the right to carry local broadcast stations. We seek comment on these and any other issues relating to must carry and retransmission consent that affect competition in the market for the delivery of video programming.
24. Section 612 of the Communications Act established the leased access rules, which require a cable operator to set aside channel capacity for commercial use by video programmers unaffiliated with the operator and provide standards for rates, terms and conditions for the use of leased access. We seek comment regarding leased access channels, including the number of channels currently being used by cable operators for these purposes and the types of programming offered on such channels. Are these channels accomplishing their intended purpose of providing competition to the programming channels under the control of the cable operator?
25. We also request comment on the “tier buy-through” option mandated by Section 623(b)(8) of the Communications Act, including the percentage of subscribers taking advantage of this option; the problems, if any, it creates; the manner in which cable operators make this option known to the public; and the extent to which
26. We seek information and data that explain the factors contributing to DBS's growth in the video programming market, which may help us assess whether those characteristics will continue to position DBS as cable's principal competitor. Is there evidence of meaningful price competition between DBS and cable? Do initial DBS equipment costs or other factors prevent cable subscribers from switching despite escalating monthly cable bills? Does the dynamic between the platforms change in markets where DBS offers local broadcast signals?
27. We seek updated information on the geographic characteristics of DBS subscribership and the factors that account for its relative strengths or weaknesses in different markets (
28. We seek updated information on the deployment of DBS satellites as well as information regarding pending additions to DBS satellite fleets, which will result in increased channel capacity or the provision of advanced services. We request information on DBS operators' current channel capacity and how they allocate it. What technical methods are DBS providers using to increase capacity?
29. We request information on the number of markets where local-into-local television service is offered, or will be offered in the near future, including the number and affiliation of the stations carried. What percentage of DBS subscribers are opting for local programming packages in markets where they are available? What is the cost to consumers of local-into-local broadcast service? What percentage of DBS subscribers also subscribe to cable in order to receive local broadcast signals? Both DIRECTV and EchoStar have launched local broadcast stations in HD in a number of markets. How many markets receive local high definition programming? We seek information on the type of equipment necessary for DBS subscribers to receive local HD broadcasts and the cost of the service and equipment.
30. On December 8, 2004, the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA) was enacted, which added some new provisions to the Communications and Copyright Acts pertaining to the retransmission by DBS of distant or out-of-market broadcast signals, including the option to carry broadcast stations deemed “significantly viewed” by the Commission. We request comment on the impact, if any, these provisions have had on the MVPD marketplace. With respect to the new authorization to market broadcast station signals deemed “significantly viewed,” to what extent are such signals being made available to subscribers? If such signals are not being marketed, is the situation due to technical or operational considerations, problems with obtaining retransmission consents, or other reasons?
31. We request data on prices for DBS programming packages and equipment, and the subscribership of different packages of programming. Do DBS operators offer any programming on an a la carte basis and, if so, what are the prices and subscription requirements associated with such offerings? What additional charges, if any, are required to obtain foreign language or foreign originated programming? We also request information about programming packages available to C-Band subscribers, including the types of packages offered, their prices, and the amount of programming that is offered on an a la carte basis and that is free and unscrambled.
32. We previously reported that LEC entry into the MVPD industry has been limited, but that developments demonstrated renewed LEC interest in providing video programming services. We seek information generally regarding LECs that provide video programming services. Are there any regulatory or statutory impediments to LEC entry into the video service market? Do LECs target specific areas or markets for deployment and what are the determinants of these decisions? How do LEC video services compare to those available from incumbent cable or satellite operators? Is there evidence of price competition between LECs, cable, and satellite operators?
33. The major incumbent local exchange carriers (ILECs) have marketing agreements with DBS providers under which they sell the DBS operator's video services along with their telephony and DSL-based high speed Internet access service. What effect have these agreements had on LEC entry into the video industry? We also request comment on whether smaller ILECs are constructing their own all-fiber or mostly fiber networks to deliver video and advanced services to their existing voice and data customers. Are there any unique barriers to entry into smaller and rural video markets?
34. We request information regarding the provision of video, voice, and data services by broadband service providers (BSPs), including municipal authorities, independent entities and competitive local exchange carriers (CLECs), as well as any entity that provides broadband services. Are video programming services offered in combination with telephone and high-speed Internet access services and, if so, how are rates affected by the packaging of multiple services? How many, or what percentage of, BSP subscribers purchase video service alone, video and telephony, video and high-speed Internet access services, or all three services? We seek comment on the effect that BSPs have on video competition, and the characteristics that facilitate BSP competitiveness (
35. To what extent are new wireline entrants operating under the open video system (OVS) classification, and what factors (
36. We seek information regarding utility companies that provide video services or plan to deploy them. To what extent are video programming services being bundled with telephone, high-speed Internet access, or other services? How does the ability to offer
37. We seek data and comment on the role of broadcast television in the market for the delivery of video programming. We seek data on broadcast network and station audience shares relative to those of nonbroadcast programming services. We also request data on broadcast advertising revenue. To what extent has cable gained local, regional, or national advertising market share from broadcast television? What forms of compensation are broadcasters receiving for retransmission consent? In terms of additional sources of revenue, to what extent are cable and DBS operators paying cash compensation for retransmission of broadcast stations? If the compensation is not cash based, how is it accounted for?
38. We seek comment on a number of issues concerning the transition to digital television (DTV) service. We request data on the number or percentage of households relying solely on over-the-air broadcast television for programming. We solicit specific information regarding the number of households that will need digital to analog converter boxes as of February 17, 2009, because they rely on over-the-air broadcast television reception and do not have televisions with digital tuners. We also seek information on the number of MVPD households, by type of MVPD service, that rely on over-the-air reception for local broadcast service on one or more of their television sets not connected to an MVPD.
39. We request information regarding the carriage of DTV programming by MVPDs and plans to increase the amount of DTV programming carried. How many MVPD subscribers are served by systems that carry DTV programming, and how many households are subscribing to such services when offered as separate packages? We also request comment on carriage agreements between MVPDs and broadcasters. We ask specifically how many noncommercial educational broadcast stations are being carried, and under what terms.
40. We seek information on how MVPDs package and price broadcast and nonbroadcast DTV programming. What impact will the digital transition have on competition if cable has the capacity to provide broadcast HD programming, but DBS operators do not?
41. We request information regarding the amount and type of DTV programming (
42. Have the Commission's programs to educate consumers about the transition to digital television resulted in greater consumer familiarity with DTV in general and HDTV specifically? We seek data regarding consumers' awareness of the DTV transition, including consumer survey results. We seek information on the consumer education efforts of government, retailers, broadcasters, video programmers and producers, and others. How successful are these consumer educations efforts?
43. We seek information on the types of services and content that broadcasters are transmitting using multicasting. In addition, we seek information on whether multicasting is limited to large markets, or if stations in small- and medium-sized markets are multicasting. How much multicast programming is locally produced or locally focused? To what extent is the provision of multicast service dependent upon its carriage by cable and other MVPD operators? In how many markets are cable operators and other MVPDs carrying broadcasters' multicast programming, and which markets are they?
44. DTV also allows broadcasters to use part of their digital bandwidth for subscription multichannel video programming services and datacasting. We seek information on the types of services and content broadcasters are transmitting using multicasting. To what extent is the provision of multicast services dependent on carriage by cable and other MVPD operators?
45. We seek updated information on the adoption of the equipment needed to receive digital programming, either over the air or from an MVPD, such as the total number of digital television (DTV) displays, including HD-ready and Enhanced Definition (ED)-ready monitors, that have been shipped to retailers and how many have been sold to consumers. We request information on how many cable set-top boxes and how many DBS receivers contain over-the-air DTV reception capabilities?
46. Wireless cable operators offer limited competition to incumbent cable operators. Many licensees of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) used by wireless cable operators to provide video service have chosen to focus on the delivery of non-video broadband services, such as high-speed Internet service. Have factors such as concerns regarding access to programming, bandwidth considerations, local regulatory considerations, and bundled service offerings, led wireless cable operators to move away from video service?
47. We request information on the types of services offered by private cable operators (PCOs), also known as satellite master antenna television (SMATV) operators. We request information on the number of PCOs in the United States, the geographic areas they serve, the identification and size of PCO companies, and the type of facilities they serve (
48. We request updated information on the availability and deployment of mobile video services, including information on programming agreements between video programming networks and other content providers and cell phone companies. Specifically, how many mobile telephone users have access to, and subscribe to, such services? What equipment is needed to receive video over cellular systems, and what is the cost of equipment and service? In which markets is service available? Do current trends in mobile video suggest that we should consider mobile telephone providers that offer video programming to be MVPDs?
49. We seek information on video distribution from other wireless devices that are not CMRS providers and on the viewing equipment, including iPods and personal digital assistants (PDAs), used to receive such programming. We seek information on the manner in which video content is delivered to these devices (
50. We also request comment on alternative wireless distribution methods and technologies and the extent to which providers have adopted or are considering adopting them. We seek comment on the extent to which new technologies, such as WiMAX, are used to provide services that compete with those offered by traditional video providers, as well as information on the deployment of municipal Wi-Fi networks.
51. We request information on the types of video services offered over the Internet in both real time and downloadable formats, and request comment on the quality of web-based video relative to traditional video program distribution. We also ask commenters to provide projections of whether web-based video will become a viable competitor in the marketplace for the delivery of video programming and, if so, when such competition is likely to emerge. Further, we seek information on the extent to which Internet video distribution also has become a means by which some new programming networks are developing audience interest in their programming absent agreements with one of the major MVPDs for distribution of their programming over cable or DBS.
52. We seek information on the advanced services offered by all MVPDs,
53. For example, we seek information on the programming that is available through video-on-demand. Is there programming that is produced especially for VOD? How much VOD content is local? What amount of VOD content is exclusive to any one video distributor?
54. We seek information on DVR services provided by MVPDs. What percentage of subscribers has access to operator-supplied DVRs, and how many subscribe to the service? How many use a DVR not supplied by an MVPD? We seek information on the characteristics of the DVRs offered (
55. We seek information about high-speed Internet access service offered by MVPDs. What percentage of MVPD Internet access service subscribers also are video subscribers? How is the service priced, and do video subscribers receive discounts? What is the status of DBS high-speed Internet access (
56. Finally, we seek information on the latest developments regarding Voice over Internet Protocol (VoIP) telephony. Is it marketed as part of a bundle of services? Are discounts offered to video subscribers? To what extent are MVPDs phasing out switched circuit telephony?
57. Technological developments have important consequences for the state of video competition. We seek comment and data on a range of developments related to consumer equipment, navigation devices, the Open Cable Application Platform (OCAP), PacketCable, CableCARDs, advanced compression techniques, technical standards, and home networking.
58. We seek comment on the availability and compatibility of customer premises equipment used to provide video programming and other services. How many households currently have analog television sets that are connected to an external set-top box that allows for the provision of various MVPD services? How many of these set-top boxes only provide analog services and how many provide different types of digital service, (
59. We also seek information on the retail availability of navigation devices to consumers. How many such devices have been sold? What are the obstacles to equipment manufacturers and others for obtaining approval to attach devices to MVPD systems? How does customer premises equipment design, function, and/or availability affect consumer choice and competition between firms in the video programming market? We request information on the development and deployment of electronic programming guides (EPGs), including the number and type of EPGs that video programming distributors offer or plan to offer to their subscribers, and the technologies used to distribute EPGs. We also request information on how many products are currently available with plug-and-play functionality, or are soon to be available.
60. We seek updated information on developments regarding CableLabs' Open Cable Application Platform (OCAP) middleware solution. Which manufacturers are incorporating OCAP into their products? How many OCAP-compliant products have been deployed, and how many are in use today? What types of applications exist for OCAP? Do smaller cable systems have plans to deploy these devices and, if so, how will they do it? We seek information on the results of OCAP device trials by MSOs in select markets, and whether they are expected to lead to commercial deployments and, if so, when. We request information on industry developments to facilitate bidirectional services and interactive television (ITV) applications and services. We also request updated information on the state of the agreement between the Consumer Electronics Association and the National Cable & Telecommunications Association to incorporate support for OCAP in interactive Digital Cable Ready (iDCR) devices, and whether any technical issues remain.
61. We solicit updated information on PacketCable, the specification standard for the delivery of advanced real-time multimedia services over two-way cable plant. We also seek updated information on CableCARDs, including the number operators have placed in service, the manner in which subscribers may obtain a CableCARD, whether operators require professional installation of the card, and any monthly subscription charges or one-time fees associated with installing or authorizing the CableCARD. Have MVPDs or consumers encountered problems with CableCARDs, and how have they been resolved? We seek information on the status of operators' efforts to develop multistream and two-way CableCARDs, and the impact this development will likely have on the competitive marketplace for digital cable-ready receivers, including DVRs.
62. We request updated information on the development and deployment of any downloadable conditional access systems. We seek comment on what content protection technologies are now available, how they work, and what legal or marketplace impediments have affected the roll-out of such tools. We seek comment on what security measures are in use and the effect of the choice of such security measures on competition. We also invite comment on how the Commission can encourage the development of digital rights management technology that will promote consumer uses of, and access to, high value digital content.
63. Broadcasters continue to improve their service and offerings through enhancements to digital Vestigial Sideband Broadcasting (VSB), called Enhanced VSB (E-VSB) and Advanced VSB (A-VSB). E-VSB was approved by the American Television Standards Committee in July 2004, as an amendment to the standard that allows broadcasters to choose between bit rates and added robustness without impeding HDTV. Possible uses of the technology include applications such as robust data broadcasting to desktops, transmissions of file-based information to handheld receivers, and “fallback” audio. However, E-VSB adoption has been slow due to a lack of demand and a lack of E-VSB enabled receivers. A-VSB is another amendment being proposed to the ATSC for mobile video applications. ATSC has accepted the proposal of A-VSB, but it has not yet reached the “candidate standard” stage, which involves more exacting technical review. We request information on these and other technological advances in digital broadcasting.
64. We seek information on the effect that technical rules and standards have on the market for video programming services. Are there specific actions with respect to the establishment of technical rules and standards that the Commission may take to foster greater competition among video service providers? Do current technical rules and standards related to the provision of video services, such as the “plug-and-play” standards, provide a level playing field among competitors in the video delivery marketplace?
65. We seek information or case studies that address the status of competition in foreign markets for the delivery of video programming because developments in other countries can lend insight into the nature of competition in the United States. Specifically, we seek information regarding the differences between the U.S. market and foreign markets, including differences in pricing; packaging (
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67.
68.
• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:
• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to
• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
• In addition, parties must serve the following with either an electronic copy via e-mail or a paper copy of each pleading: (1) the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, or via e-mail at
People with Disabilities: Contact the Commission to request materials in accessible formats (Braille, large print, electronic files, audio format, etc.) by e-mail at
Federal Election Commission.
Thursday, February 12, 2009, at 10 a.m.
999 E Street, NW., Washington, DC (Ninth Floor).
This meeting will be open to the public.
Correction and Approval of Minutes.
Draft Advisory Opinion 2008-21: CME Group, Inc., by Lawrence M. Noble, Esq. and Patricia M. Zweibel, Esq.
Management and Administrative Matters.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Mary Dove, Commission Secretary, at (202) 694-1040, at least 72 hours prior to the hearing date.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By order of the Federal Maritime Commission.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for license as a Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. Chapter 409 and 46 CFR 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
Notice is hereby given that the following Ocean Transportation Intermediary licenses have been reissued by the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. Chapter 409) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR Part 515.
The Federal Maritime Commission hereby gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. Chapter 409) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR Part 515, effective on the corresponding date shown below:
10 a.m. (Eastern Time), February 17, 2009.
Serco Inc., 1818 Library Street, Suite 1000, Reston, Virginia 20190.
Open to the public.
Thomas J. Trabucco, Director, Office of External Affairs, (202) 942-1640.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (DHHS) announces the following advisory committee meeting.
On the morning of the second day the Committee will discuss subcommittee work. There will also be a presentation on international terminology and an update on Health Statistics for the 21st Century. In addition, there will be an update on the work of the National Center for Health Statistics' Board of Scientific Counselors. In the afternoon, the Committee will hear an overview of emerging and innovative sources of health care data.
The times shown above are for the full Committee meeting. Subcommittee breakout sessions can be scheduled for late in the afternoon of the first day and second day and 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.
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (301) 458-4EEO (4336) as soon as possible.
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
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).
Request for comments.
The NTP invites public comment on the recommendation from an expert panel on the listing status for cobalt-tungsten carbide powders and hard metals in the 12th RoC and the scientific justification for the recommendation. The recommendation and scientific justification for cobalt-tungsten carbide powders and hard metals are available electronically in Part B of the Expert Panel Report (
The Expert Panel Report (Part B) for cobalt-tungsten carbide powders and hard metals will be available for public comment by February 4, 2009. Written comments should be submitted by March 30, 2009.
Comments should be sent to Dr. Ruth Lunn, Director, RoC Center [NIEHS, P.O. Box 12233, MD K2-14, Research Triangle Park, NC 27709, FAX: 919-541-0144, or
Dr. Ruth Lunn, RoC Center, 919-316-4637 or
Cobalt-tungsten carbide hard metals are composites of carbides (including tungsten carbide alone or in combination with small amounts of other carbides) with a metallic cobalt binder, pressed into a compact, solid form at high temperatures by a process known as “sintering.” Cobalt-tungsten carbide hard metals are used primarily in cutting tools. Cobalt-tungsten carbide hard metals are manufactured and used in the United States. Occupational exposure to cobalt-tungsten carbide hard-metal particles can occur during hard-metal production, recycling of hard-metal products, and grinding and sharpening of hard-metal tools.
As part of the RoC review process (available at
The RoC Center invites written public comments on the expert panel's recommendation on listing status for cobalt-tungsten carbide powders and hard metals and the scientific justification for the recommendation. All comments received will be posted on the RoC Web site. Persons submitting written comments are asked to include their name and contact information (affiliation, mailing address, telephone and facsimile numbers, e-mail, and sponsoring organization, if any) and send them to Dr. Lunn (see
The RoC Center is in the process of finalizing the background document for cobalt-tungsten carbide powders and hard metals based upon the expert panel's peer review comments and the public comments received (73FR60288). Persons can register free-of-charge with the NTP listserve (
The RoC is a Congressionally mandated document that identifies and discusses agents, substances, mixtures, or exposure circumstances (collectively referred to as “substances”) that may pose a hazard to human health by virtue of their carcinogenicity. The RoC follows a formal, multi-step process for review and evaluation of selected chemicals. Substances are listed in the report as either
Administration for Children and Families, Department of Health and Human Services.
Notice of meeting.
The meeting will be held on Friday, February 27, 2009, from 8:30 a.m. to 12 p.m.
The meeting will be held at the U.S. Department of Health and Human Services, 200 Independence Avenue, SW., Washington, DC 20201. To attend either in person or via teleconference, please register by 5 p.m. Eastern Time, February 24, 2009. To register, please e-mail
The National Commission on Children and Disasters is an independent Presidential Commission that shall independently conduct a comprehensive study to examine and assess the needs of children as they relate to preparation for, response to, and recovery from all hazards, building upon the evaluations of other entities and avoiding unnecessary duplication by reviewing the findings, conclusions, and recommendations of these entities. The Commission shall then submit a report to the President and the Congress on the Commission's independent and specific findings, conclusions, and recommendations to address the needs of children as they relate to preparation for, response to, and recovery from all hazards, including major disasters and emergencies.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by April 13, 2009.
Submit electronic comments on the collection of information to
Elizabeth Berbakos, Office of Information Management (HFA-710), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-796-3792.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA is requesting OMB approval for the reporting and recordkeeping requirements contained in FDA's regulations “Investigational New Drug Application” in part 312 (21 CFR part 312). Part 312 implements provisions of section 505(i) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 355(i)) to issue regulations under which the clinical investigation of the safety and effectiveness of unapproved new drugs and biological products can be conducted.
FDA is charged with implementing statutory requirements that drug products marketed in the United States be shown to be safe and effective, properly manufactured, and properly labeled for their intended uses. Section 505(a) of the act provides that a new drug may not be introduced or delivered for introduction into interstate commerce in the United States unless FDA has previously approved a new drug application (NDA). FDA approves an NDA only if the sponsor of the application first demonstrates that the drug is safe and effective for the conditions prescribed, recommended, or suggested in the product's labeling. Proof must consist, in part, of adequate and well-controlled studies, including studies in humans, that are conducted by qualified experts. The Investigational New Drug (IND) regulations establish reporting requirements that include an initial application as well as amendments to that application, reports on significant revisions of clinical investigation plans, and information on a drug's safety or effectiveness. In addition, the sponsor is required to give FDA an annual summary of the previous year's clinical experience. Submissions are reviewed by medical officers and other agency scientific reviewers assigned responsibility for overseeing the specific study. The IND regulations also contain recordkeeping requirements that pertain to the responsibilities of sponsors and investigators. The detail and complexity of these requirements are dictated by the scientific procedures and human subject safeguards that must be followed in the clinical tests of investigational new drugs.
The IND information collection requirements provide the means by which FDA can do the following: (1) Monitor the safety of ongoing clinical investigations; (2) determine whether the clinical testing of a drug should be authorized; (3) ensure production of reliable data on the metabolism and pharmacological action of the drug in humans; (4) obtain timely information on adverse reactions to the drug; (5) obtain information on side effects associated with increasing doses; (6) obtain information on the drug's effectiveness; (7) ensure the design of well-controlled, scientifically valid studies; and (8) obtain other information pertinent to determining whether clinical testing should be continued and information related to the protection of human subjects. Without the information provided by industry in response to the IND regulations, FDA cannot authorize or monitor the clinical investigations which must be conducted prior to authorizing the sale and general use of new drugs. These reports enable FDA to monitor a study's progress, assure subject safety, assure that a study will be conducted ethically, and increase the likelihood that the sponsor will conduct studies that will be useful in determining whether the drug should be marketed and available for use in medical practice.
There are two forms that are required under part 312:
The first form is Form FDA-1571—“Investigational New Drug Application.” A person who intends to conduct a clinical investigation submits this form to FDA. It includes the following information: (1) A cover sheet containing background information on the sponsor and investigator; (2) a table of contents; (3) an introductory
The second form is Form FDA-1572—“Investigator Statement.” Before permitting an investigator to begin participation in an investigation, the sponsor must obtain and record this form. It includes background information on the investigator and the investigation, and a general outline of the planned investigation and the study protocol.
FDA is requesting OMB approval for the following reporting and recordkeeping requirements in part 312:
In tables 2 and 3 of this document, the estimates for “No. of Respondents,” “No. of Responses per Respondent,” and “Total Annual Responses” were obtained from the Center for Drug Evaluation and Research (CDER) and the Center for Biologics Evaluation and Research (CBER) reports and data management systems for submissions received in 2007 and from other sources familiar with the number of submissions received under part 312. The estimates for “hours per response” were made by CDER and CBER individuals familiar with the burden associated with these reports and from estimates received from the pharmaceutical industry.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by April 13, 2009.
Submit electronic comments on the collection of information to
Jonna Capezzuto, Office of Information Management (HFA-710), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-796-3794.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 409 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 348) establishes a premarket approval requirement for “food additives;” section 201(s) of the act (21 U.S.C. 321) provides an exemption from the definition of “food additive” and thus from the premarket approval requirement, for uses of substances that are Generally Recognized as Safe (GRAS) by qualified experts. In April 1997, FDA proposed a voluntary procedure whereby manufacturers would notify FDA about a view that a particular use (or uses) of a substance is not subject to the statutory premarket approval requirements based on a determination that such use is GRAS (62 FR 18938, April 17, 1997). Proposed §§ 170.36 and 570.36 provide a standard format for the voluntary submission of a notice. The notice would include a detailed summary of the data and information that support the GRAS determination, and the notifier would maintain a record of such data and information. FDA would make the information describing the subject of the GRAS notice, and the agency's response to the notice, available in a publicly accessible file; the entire GRAS notice would be publicly available consistent with the Freedom of Information Act and other Federal disclosure statutes.
FDA estimates the burden of this collection of information as follows:
In the proposed rule, FDA estimated that the Center for Food Safety and Applied Nutrition (CFSAN) would receive approximately 50 GRAS notices per year and that the Center for Veterinary Medicine (CVM) would receive approximately 10 GRAS notices per year. Although FDA requested comment on this estimate, the comments did not provide useful information regarding this issue. Therefore, FDA evaluated the number of notices received by CFSAN to date. CFSAN received 274 GRAS notices during the 11-year period from 1998 through 2008, for an average of approximately 25 GRAS notices per year. Based on this experience, FDA is revising its estimate of the annual number of GRAS notices submitted to CFSAN to be 25 or less. FDA also is revising its estimate of the annual number of GRAS notices submitted to CVM to be 5 or less.
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 March 13, 2009.
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
Denver Presley, Jr., Office of Information Management (HFA-710), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-796-3793.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 502 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 352), among other things, establishes requirements that the label or labeling of a medical device must meet so that it is not misbranded and subject to regulatory action. Section 301 of the Medical Device User Fee and Modernization Act of 2002 (Public Law 107-250) amended section 502 of the act to add section 502(u) to require devices (both new and reprocessed) to bear prominently and conspicuously the name of the manufacturer, a generally recognized abbreviation of such name, or a unique and generally recognized symbol identifying the manufacturer. Thus, the name for this information collection activity has been changed to
Section 2(c) of The Medical Device User Fee Stabilization Act of 2005 (Public Law 109-43) amends section 502(u) of the act by limiting the provision to reprocessed single-use devices (SUDs) and the manufacturers who reprocess them. Under the amended provision, if the original SUD or an attachment to it prominently and conspicuously bears the name of the manufacturer, then the reprocessor of the SUD is required to identify itself by name, abbreviation, or symbol, in a prominent and conspicuous manner on the device or attachment to the device. If the original SUD does not prominently and conspicuously bear the name of the manufacturer, the manufacturer who reprocesses the SUD for reuse, may identify itself using a detachable label that is intended to be affixed to the patient record.
The requirements of section 502(u) of the act impose a minimal burden on industry. This section of the act only requires the manufacturer, packer, or distributor of a device to include their name and address on the labeling of a device. This information is readily available to the establishment and easily supplied. From its registration and premarket submission database, FDA estimates that there are 10 establishments that distribute approximately 1,000 reprocessed SUDs. Each response is anticipated to take 0.1 hours resulting in a total burden to industry of 100 hours.
In the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is withdrawing approval of 103 new drug applications (NDAs) and 35 abbreviated new drug applications (ANDAs) from multiple applicants. The holders of the applications notified the agency in writing that the drug products were no longer marketed and requested that the approval of the applications be withdrawn.
Effective March 13, 2009.
Florine P. Purdie, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 6366, Silver Spring, MD 20993-0002, 301-796-3601.
The holders of the applications listed in the table in this document have informed FDA that these drug products are no longer marketed and have requested that FDA withdraw approval of the applications. The applicants have also, by their requests, waived their opportunity for a hearing.
Therefore, under section 505(e) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(e)) and under authority delegated to the Director, Center for Drug Evaluation and Research, by the Commissioner of Food and Drugs, approval of the applications listed in the table in this document, and all amendments and supplements thereto, is hereby withdrawn, effective March 13, 2009.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for MACROPLASTIQUE IMPLANTS and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director of Patents and Trademarks, Department of Commerce, for the extension of patents which claim that medical device.
Submit written comments and petitions to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 6222, Silver Spring, MD 20993-0002, 301-796-3602.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the device and continues until permission to market the device is granted. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a medical device will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(3)(B).
FDA recently approved for marketing the medical device MACROPLASTIQUE IMPLANTS. MACROPLASTIQUE IMPLANTS are indicated for transurethral injection in the treatment of adult women diagnosed with stress urinary incontinence (SUI) primarily due to intrinsic sphincter deficiency (ISD). Subsequent to this approval, the Patent and Trademark Office received patent term restoration applications for MACROPLASTIQUE IMPLANTS (U.S. Patent Nos. 5,258,028;. 5,336,263; and 5,571,182) from Uroplasty, Inc., and the Patent and Trademark Office requested FDA's assistance in determining these patents' eligibilities for patent term restoration. In a letter dated May 6, 2008, FDA advised the Patent and Trademark Office that this medical device had undergone a regulatory review period and that the approval of MACROPLASTIQUE IMPLANTS represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for MACROPLASTIQUE IMPLANTS is 2,651 days. Of this time, 1,973 days occurred during the testing phase of the
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,640 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Comments and petitions should be submitted to the Division of Dockets Management. Three copies of any mailed information are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Please note that on January 15, 2008, the FDA Division of Dockets Management Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic comments or submissions will be accepted by FDA only through FDMS at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a revised guidance document entitled “Guidance for Industry: Referral Program from the Food and Drug Administration to the National Oceanic and Atmospheric Administration Seafood Inspection Program for the Certification of Fish and Fishery Products for Export to the European Union and the European Free Trade Association.” The revised guidance only changes the date on which FDA intends to stop issuing export certificates for fish or fishery products that are to be shipped to the European Union (EU) and the European Free Trade Association (EFTA). The date FDA now intends to stop issuing EU Export Certificates is June 17, 2009.
Submit written or electronic comments on the guidance at any time.
Submit written requests for single copies of the guidance to the Office of Food Safety (HFS-300), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835. Send one self-addressed adhesive label to assist that office in processing your request. Submit written comments concerning 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 on the guidance to
William Jones, Center for Food Safety and Applied Nutrition (HFS-325), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 301-436-2300.
In the
After publication of the January 15 notice, FDA received comments and has determined it would be beneficial to have more time to deliberate further on the policy issues presented by this action. Consequently, FDA is revising the guidance to announce that it intends to stop issuing EU Export Certificates on June 17, 2009.
FDA is issuing this guidance document as a level 2 guidance consistent with FDA's good guidance practices regulation (21 CFR 10.115(c)(2)). 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, NOAA SIP, or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the guidance document at
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA) is announcing a public workshop entitled: Improving Endpoints, Improving Care: Alpha-1 Antitrypsin Augmentation Therapy and Clinical Trials. The purpose of the public workshop is to identify the most useful clinical trial endpoints and surrogate markers for Alpha-1 antitrypsin (AAT) augmentation therapy. FDA, Alpha-1 Foundation, and the Department of Health and Human Services, Office of Public Health and Science are convening this workshop to facilitate the design of future clinical trials intended to establish clinical efficacy of AAT products. The public workshop will feature presentations and panel discussions led by experts from academic institutions, government, and industry.
If you need special accommodations due to a disability, please contact Rhonda Dawson (see
AAT deficiency is a genetic condition that leads to decreased levels of alpha-1 antitrypsin in the blood and significantly increases the risk of serious lung disease in adults and liver disease in infants, children, and adults. Intravenous augmentation therapy with FDA-licensed, plasma-derived AAT products has become the standard of care for treatment in the subset of patients with AAT deficiency who have moderate pulmonary disease. Since the original product approvals, additional data collection and advances in understanding of AAT deficiency suggest the need to revisit and improve clinical trial efficacy endpoints.
The public workshop will facilitate scientific discussions to identify the most relevant and feasible, currently available and future clinical trial efficacy endpoints for AAT augmentation therapy and further evaluate its usefulness to a broader patient population. Topics to be discussed include: (1) AAT deficiency disease characteristics, progression and pulmonary pathophysiology; (2) patient selection for clinical trials; (3) current challenges to the development of endpoints for clinical trials; and (4) currently available and future clinical trial endpoints, including functional markers of disease progression, and radiological and biochemical endpoints.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Elaine Ferguson at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting nominations for voting and nonvoting consumer representatives to serve on the National Mammography Quality Assurance Advisory Committee (NMQAAC) and certain devices panels of the Medical Devices Advisory Committee in the Center for Devices and Radiological Health (CDRH).
FDA has a special interest in ensuring that women, minority groups, and individuals with disabilities are adequately represented on advisory committees and, therefore, encourages nominations of qualified candidates from these groups.
Nominations will be accepted for current vacancies and for those that will or may occur through October 31, 2009. Because vacancies occur on various dates throughout the year, there is no cutoff date for the receipt of nominations.
All nominations for membership should be sent electronically to
For specific committee questions, contact the following persons listed in table 1 of this document:
FDA is requesting nominations for voting and nonvoting consumer representatives for the vacancies listed in table 2 of this document:
The committee advises FDA on the following topics: (1) Developing appropriate quality standards and regulations for mammography facilities; (2) developing appropriate standards and regulations for bodies accrediting mammography facilities under this program; (3) developing regulations with respect to sanctions; (4) developing procedures for monitoring compliance with standards; (5) establishing a mechanism to investigate consumer complaints; (6) reporting new developments concerning breast imaging which should be considered in the oversight of mammography facilities; (7) determining whether there exists a shortage of mammography facilities in rural and health professional shortage areas and determining the effects of personnel on access to the services of such facilities in such areas; (8) determining whether there will exist a sufficient number of medical physicists after October 1, 1999; and (9) determining the costs and benefits of compliance with these requirements.
The committee reviews and evaluates data on the safety and effectiveness of marketed and investigational devices and makes recommendations for their regulation. The panels engage in a number of activities to fulfill the functions of the Federal Food, Drug, and Cosmetic Act's (the act) envisions for device advisory panels. With the exception of the Medical Devices Dispute Resolution Panel, each panel, according to its specialty area, does the following: (1) Advises the Commissioner of Food and Drugs (the Commissioner) regarding recommended classification or reclassification of devices into one of three regulatory categories, (2) advises on any possible risks to health associated with the use of devices, (3) advises on formulation of product development protocols, (4) reviews premarket approval applications for medical devices, (5) reviews guidelines and guidance documents, (6) recommends exemption of certain devices from the application of portions of the act, (7) advises on the necessity to ban a device, and (8) responds to requests from the agency to review and make recommendations on specific issues or problems concerning the safety and effectiveness of devices.
Persons nominated for membership as a consumer representatives on the committee/panels must meet the following criteria: (1) Demonstrate ties to consumer and community-based organizations, (2) be able to analyze technical data, (3) understand research design, (4) discuss benefits and risks, and (5) evaluate the safety and efficacy of products under review. The consumer representative must be able to represent the consumer perspective on issues and actions before the advisory committee; serve as a liaison between the committee and interested consumers, associations, coalitions, and consumer organizations; and facilitate dialogue with the advisory committees on scientific issues that affect consumers.
Selection of members representing consumer interests is conducted through procedures that include the use of organizations representing the public interest and consumer advocacy groups. The organizations have the responsibility of recommending candidates of the agency's selection.
All nominations must include a cover letter, a curriculum vita or resume (that includes the nominee's office address, telephone number, and e-mail address), and a list of consumer or community-based organizations for which the candidate can demonstrate active participation.
Nominations will specify the advisory committee or panel(s) for which the nominee is recommended. Nominations will include confirmation that the nominee is aware of the nomination.
Any interested person or organization may nominate one or more qualified persons for membership as consumer representatives on the advisory committee/panels. Self-nominations are also accepted. Potential candidates will be required to provide detail information concerning such matters as financial holdings, employment, and research grants and/or contracts to permit evaluation of possible sources of a conflict of interest. The nomination should specify the committee/panels of interest. The term of office is up to 4 years, depending on the appointment date.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to advisory committees.
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.
• Vaccines based on HTLV-II vectors have exhibited the capability to eliciting T cell response effectively. In particular they induce specific CD4+ and CD8+ T cell response. Antibody response to the HTLV-II vector is almost undetectable. The vector is infectious, but highly attenuated, with respect to the wild type HTLV-II. Desirably, the HTLV-II viral vector induces antibodies that can participate in Antibody-Dependent-Cell-Mediated Cytotoxicity (ADCC), a mechanism that enhances its effectiveness.
• Most of the T-cell vaccines developed for HIV are based on microbial vectors that have limited replication capacity and do not persist in the host. Such vaccines do not protect macaques from SIV infection and their ability to protect against high virus load is merely transient (approximately six months). They are perceived to elicit too “small T-cell responses” that expand “too late”. In addition, few of these vectors target mucosal sites, the first portal of HIV entry. In contrast, an HTLV-II based vaccine is anticipated to infect macaques and replicate at very low level in lymphoid tissue and particularly in the gut which may enable them to maintain sufficient level of effectors CD8 memory cells to decrease early seeding of the virus, and sufficient level of central memory cells in lymph nodes that may limit the broadcasting of the virus at distal sites. These features make an HTLV-II based vaccine for HIV an excellent unique candidate to target mucosal tissues and provide long lasting mucosal immunity to HIV. In addition, the HTLV-II infects dendritic cells both in vivo and in vitro, and the HTLV-II infected dendritic cells have a mature phenotype, suggesting that HIV antigens expressed within dendritic cells could be effectively presented to the immune system.
• HTLV-II is a human retrovirus with no clear disease associations neither in healthy nor in HIV infected individuals.
• HTLV shares many biological and molecular characteristics of HIV, including routes of transmission, a T-cell tropism and gut tropism.
• Based on the above, it is believed that HIV vaccines based on HTLV-II vector will exhibit superiority compared to other vaccines in development.
• Treatment of HIV infection
• Assessing the effectiveness of therapeutic vaccines or other immune therapies
• Novel strategy for treating HIV infection
• Direct measure of the reestablishment of CD8 T-cell function
• Alternative to ART
• HIV therapeutics
• Immunotherapy and therapeutic vaccine development
From a panel of 11 Fabs recovered by different panning strategies, three highly potent neutralizing antibodies, termed Fabs A3, B2, and E3, which recognized spatially separated regions on the JEV virion were identified. These antibodies reacted with epitopes in different domains: The major determinant for Fab A3 was Lys179 (domain I), that for Fab B2 was Ile126 (domain II), and that for Fab E3 was Gly302 (domain III) in the envelope protein, suggesting that these antibodies neutralize the virus by different mechanisms. These three Fabs and derived humanized monoclonal antibodies (MAbs) exhibited high neutralizing activities against a broad spectrum of JEV genotype strains. In preclinical testing, the monoclonal antibodies of the technology significantly prolonged the average survival time compared to the control group, suggesting a therapeutic potential for use of MAb B2 in humans.
This application claims the antibodies described above, methods of preventing
Bites from the nymphal stage of
• Sialostatin L2 as an anti-tick vaccine will target the vector and therefore confer protection against all the pathogens that may be transmitted by the vector.
• An environmentally friendly alternative to acaricides.
1. M Kotsyfakis
2. M Kotsyfakis
3. M Kotsyfakis
• U.S. Provisional Application No. 60/963,332 filed 02 Aug 2007 (HHS Reference No. E-289-2007/0-US-01).
• PCT Patent Application No. PCT/US08/09075 filed 25 Jul 2008 (HHS Reference No. E-289-2007/1-PCT-01).
The model can be used to measure the performance of imaging procedures designed to measure the true intensity of spots on microarrays. Modeling and simulation of microarray image formation is a key to benchmarking various signal processing tools being developed to estimate cDNA signal spots. Using a model to describe the true signal intensity not only helps in evaluating these tools, but also facilitates the understanding of various process interactions. The simulation program has been used extensively in the design of the microarray image-analysis program used at the National Human Genome Research Institute (NHGRI). This has been done by testing the accuracy of the analysis program on simulated images exhibiting troublesome noise conditions and then tuning the program to achieve better results.
The simulation procedure can be incorporated into hardware/software for
• Microarray imaging
• Evaluation of gene expression
• Efficient and accurate microarray signal analysis
• Improved detection of weak targets and improved local background estimation for microarray spots
Characteristics of problems that are appropriate for the application of the COEV method are: (1) Appropriate for machine learning, in that there is a well-defined set of input variables and a clear prediction target; (2) difficult for traditional methods, and where a modest improvement in accuracy over existing machine learning methods (
Possible application areas of interest include the analysis of high-throughput screening data for pharmaceutical discovery, detecting patterns of fraud in insurance claims, or automating screening of medical images.
This invention requires further R&D and testing to make it a practical system for widespread use.
• Machine learning
• High throughput screening analysis for pharmaceutical, biotechnology, and other industries
• More accurate interpretation and analysis of complex data networks
• Improved predictive outcomes with continued use (evolutionary learning)
Further information is available at
• Predictive outcomes for genetic mutations
• Biomedical research
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 any 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.
1. H Inoue
2. HY Yoon
• HHS Reference No. E-220-2008/0—Research Tool.
• HHS Reference No. E-220-2008/1—Research Tool.
• HHS Reference No. E-220-2008/2—Research Tool.
• HHS Reference No. E-221-2008/0—Research Tool.
• HHS Reference No. E-221-2008/1—Research Tool.
• HHS Reference No. E-221-2008/2—Research Tool.
• HHS Reference No. E-222-2008/0—Research Tool.
• HHS Reference No. E-242-2008/0—Research Tool.
• HHS Reference No. E-243-2008/0—Research Tool.
• HHS Reference No. E-244-2008/0—Research Tool.
• HHS Reference No. E-245-2008/0—Research Tool.
• HHS Reference No. E-245-2008/1—Research Tool.
• HHS Reference No. E-252-2008/0—Research Tool.
• Research tool in various laboratory procedures to identify and detect MAD1.
• Diagnostic tool for aneuploidy, the condition of having an abnormal number of chromosomes, which results in birth and developmental defects, such as Down syndrome.
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.
Investigators at the National Cancer Institute (NCI) have developed a compact gene signature that detects genome instability in breast cancer cells. By comparing changes in expression levels of only 12 genes in malignant tissue to levels in normal breast tissue it is possible to detect the genetic abnormalities that are indicative of a poor prognosis. This method has potential to improve markedly the forecasting of clinical outcomes for breast cancer and help improve treatment of this disease.
• Precise staging of women with breast cancer prior to commencing treatment.
• Discovery of therapeutics that alter genomic instability and improve breast cancer prognosis.
• Reduced number of genes to measure compared to available technologies.
• Prognosis independent of other cancer indicators, such as lymph node status.
• Improved prediction in low risk patients.
Secreted HMGN acts as a potent recruiter and activator of dendritic cells, the cell principally responsible for initiating the immune response. Furthermore, it enables dendritic cells to preferentially induce a Th1-type T lymphocyte response that leads to enduring cellular immunity. Therefore, HMGN has potential use as a clinically effective immunoadjuvant for use in vaccines against tumors and many intracellular pathogens.
Investigators at the National Institutes of Health have developed compositions and methods for using HMGN and its derivatives as immunoadjuvants in combination, as mixtures or as chemical conjugates, with microbial or tumor antigens. HMGN has the advantage of being gene encoded so it can be fused to an antigen gene to produce recombinant fusion proteins or administered as a DNA vaccine. Conversely, HMGN could be exploited as a drug target to treat diseases that would benefit from shifting away the Th1-type immune response towards a Th2-type or humoral immune response. This would be beneficial for treatment of parasitic infections and inflammatory or autoimmune disorders.
• As an immunostimulatory adjuvant to increase efficacy of preventive or therapeutic vaccinations against microbes or cancers.
• As an attractant and activator of dendritic cells.
• Antagonist drug development for suppressing Th1-type response.
• Less adverse effects expected compared to current immunoadjuvants since HMGN is produced by the human body.
• Highly effective polarizer of the immune response towards Th1-type immunity.
The invention relates to substituted IL-15 amino acid sequences of one or more amino acids that are predicted to reduce or eliminate deamidation of a specific aspargine amino acid residue found within the IL-15 protein. Deamidation can lead to protein degradation and interfere with the pharmaceutical purification and processing of IL-15. The invention also provides potential substituted gene sequences that encode the substituted IL-15 amino acid sequences. The substituted IL-15 amino acid sequences may advantageously facilitate the refolding, purification, storage, characterization, and clinical testing of IL-15.
The claims in the pending patent application provide for virus-like particles, methods of making virus-like particles, and methods of using virus-like particles to deliver proteins to a cell. The claims also provide for methods of targeting a protein to a cell, methods of protein therapy and methods of treating diseases or disorders.
• Intracellular targeted delivery of therapeutic proteins.
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• Antigen loading of dendritic cells for cancer vaccination.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, 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.
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.
Notice is hereby given of a meeting of the Services Subcommittee of the Interagency Autism Coordinating Committee (IACC).
The purpose of the Services Subcommittee is to review the current state of services and supports for individuals with Autism Spectrum Disorder (ASD) and their families in order to improve these services. The Subcommittee meeting will be open to the public and the meeting will be conducted entirely as a conference call with Webinar.
Members of the public who participate using the conference call phone number will be able to listen to the meeting but will not be heard. There may be an opportunity for members of the public to submit written comments during the subcommittee meeting through the web presentation tool. Submitted comments will be reviewed after the meeting. If you experience any technical problems with the web presentation tool, please contact GoToWebinar at (800) 263-6317.
To use the Webinar, the following computer capabilities are required: (A) Internet Explorer 5.0 or later, Netscape Navigator 6.0 or later or Mozilla Firefox 1.0 or later; (B) Windows® 2000, XP Home, XP Pro, 2003 Server or Vista; (C) Stable 56k, cable modem, ISDN, DSL or better Internet connection; (D) Minimum of Pentium 400 with 256 MB of RAM (Recommended); (E) Java Virtual Machine enabled (Recommended)
This notice is being published less than 15 days prior to the meeting due to the scheduling limitations of the members.
Information about the IACC is available on the Web site:
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.
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.
Federal Emergency Management Agency, DHS.
Public meeting notice.
This notice announces the date, time, location, and discussion topics for a stakeholder meeting open to the public to engage in dialogue with Department of Homeland Security (DHS) leadership and program managers regarding the Voluntary Private Sector Preparedness Accreditation and Certification Program (PS-Prep).
The meeting will be held at the American Red Cross Ballroom, Hall of Service, 1730 E Street, NW., Washington, DC 20006. Enter at the E Street entrance. This is not located at the Red Cross Headquarters. The nearest Metro stations are Farragut West (exit at 17th and I Street, walk south towards H Street for four blocks and turn right at E Street) and Farragut North (exit at Connecticut Avenue and K Street, walk south towards I Street for five blocks and turn right at E Street).
You may submit comments, identified by Docket ID FEMA-2008-0017, by one of the following methods:
Mr. Donald Grant, Incident Management Systems Integration Division, National Preparedness Directorate, National Integration Center, 500 C Street, SW., Washington, DC 20472. Phone: 202-646-3850 or e-mail:
On December 24, 2008, the Federal Emergency Management Agency (FEMA), Department of Homeland Security (DHS), published a
The December 24, 2008
This notice announces the second stakeholder outreach meeting. FEMA is hosting this public meeting to discuss issues of interest pertaining to PS-Prep. The purpose of this meeting is to provide an open forum for additional comment and dialogue with DHS on PS-Prep. Individuals desiring to participate will have the opportunity to make a brief, formal or informal, presentation of
Public attendance is encouraged.
60-Day Notice of Information Collection Under Review: Form N-300, Application To File Declaration of Intention; OMB Control No. 1615-0078.
The Department of Homeland Security, U.S. Citizenship and Immigration Services has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until April 13, 2009.
Written comments and suggestions regarding the item(s) contained in this notice, and especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352, or via email at
During this 60-day period USCIS will be evaluating whether to revise the Form N-300. Should USCIS decide to revise the Form N-300 it will advise the public when it publishes the 30-day notice in the
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) 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,
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please visit the USCIS Wweb site at:
We may also be contacted at: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210, Telephone number 202-272-8377.
60-Day Notice of Information Collection Under Review: National Interest Waivers; Supplemental Evidence to I-140 and I-485; OMB Control No. 1615-0063.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until April 13, 2009.
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) 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,
(1)
(2)
(3)
(4)
(5)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please visit the USCIS Web site at:
We may also be contacted at: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210, Telephone number 202-272-8377.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The HECM Counseling Client Survey is used by HUD to obtain information directly from counseling recipients. This form is sent to the clients of a counseling agency as part of HUD's performance review of the agency.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-NEW) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Fish and Wildlife Service, Interior.
Notice of receipt of applications.
The following applicants have applied for scientific research permits to conduct certain activities with endangered species under the Endangered Species Act of 1973, as amended (Act).
To ensure consideration, written comments must be received on or before March 13, 2009.
Written comments should be submitted to the Chief, Endangered Species Division, Ecological Services, P.O. Box 1306, Room 6034, Albuquerque, New Mexico 87103. Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act. Documents will be available for public inspection, by appointment only, during normal business hours at the U.S. Fish and Wildlife Service, 500 Gold Ave. SW., Room 6034, Albuquerque, New Mexico. Please refer to the respective permit number for each application when submitting comments.
Susan Jacobsen, Chief, Endangered Species Division, P.O. Box 1306, Albuquerque, New Mexico 87103, (505) 248-6920.
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 from public review, we cannot guarantee that we will be able to do so.
Applicant requests a new permit for research and recovery purposes to conduct presence/absence surveys of the following species: lesser long-nosed bat (
Applicant requests a new permit for research and recovery purposes to conduct presence/absence surveys of Comanche Springs pupfish (
Applicant requests an amendment to a current permit for research and recovery purposes to conduct presence/absence surveys of Sonora tiger salamander (
Applicant requests a new permit for research and recovery purposes to conduct presence/absence surveys of black-capped vireo (
Applicant requests an amendment to a current permit for research and recovery purposes to transport and transplant Huachuca water umbel (
16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of reviews.
We, the U.S. Fish and Wildlife Service (Service), announce 5-year reviews of 23 southwestern species listed under the Endangered Species Act of 1973 (Act). The purpose of reviews conducted under this section of the Act is to ensure that the classification of species as threatened or endangered on the List of Endangered and Threatened Wildlife and Plants is accurate. The 5-year review is an assessment of the best scientific and commercial data available at the time of the review.
To allow adequate time to conduct this review, information submitted for our consideration must be received on or before May 12, 2009. However, we will continue to accept new information about any listed species at any time.
You should submit information on these species to the Service at the addresses listed under “Public Comments” in the
Contact the appropriate office named in “Public Comments” for species-specific information.
Section 4(c)(2)(A) of the Act (16 U.S.C. 1531
The 5-year review is an assessment of the best scientific and commercial data available at the time of the review. Therefore, we are requesting submission of any new information (best scientific and commercial data) on the following 23 species since their original listings as either endangered (ashy dogweed, Canelo Hills ladies'-tresses, Comanche Springs pupfish, Davis' green pitaya, Gila chub, Gulf Coast jaguarundi, Huachuca water-umbel, Koster's springsnail, Little Aguja (=Creek) pondweed, masked bobwhite (quail), Mexican long-nosed bat, Nellie cory cactus, Noel's amphipod, Pecos assiminea snail, Pecos gambusia, Roswell springsnail, Texas poppy-mallow, and Zapata bladderpod) or threatened (Arkansas River shiner, bunched cory cactus, Chisos Mountains hedgehog cactus, Lloyd's Mariposa cactus, and Navajo sedge). If the present classification of any of these species is not consistent with the best scientific and commercial information available, the Service will recommend whether or not a change is warranted in the Federal classification of that species. Any change in Federal classification would require a separate rulemaking process.
Our regulations at 50 CFR 424.21 require that we publish a notice in the
A 5-year review considers all new information available at the time of the review. These reviews will consider the best scientific and commercial data that has become available since the current listing determination or most recent status review of each species, such as:
A. Species biology, including but not limited to population trends, distribution, abundance, demographics, and genetics;
B. Habitat conditions, including but not limited to amount, distribution, and suitability;
C. Conservation measures that have been implemented to benefit the species;
D. Threat status and trends (see five factors under heading “How do we determine whether a species is endangered or threatened?”); and
E. Other new information, data, or corrections, including but not limited to taxonomic or nomenclatural changes, identification of erroneous information contained in the List of Endangered and Threatened Wildlife and Plants, and improved analytical methods.
The List of Endangered and Threatened Wildlife and Plants (List) is found in 50 CFR 17.11 (wildlife) and 17.12 (plants). Amendments to the List through final rules are published in the
The following definitions are provided to assist those persons who contemplate submitting information regarding the species being reviewed:
A.
B.
C.
Section 4(a)(1) of the Act establishes that we determine whether a species is endangered or threatened based on one or more of the five following factors:
A. The present or threatened destruction, modification, or curtailment of its habitat or range;
B. Overutilization for commercial, recreational, scientific, or educational purposes;
C. Disease or predation;
D. The inadequacy of existing regulatory mechanisms; or
E. Other natural or manmade factors affecting its continued existence.
Section 4(a)(1) of the Act requires that our determination be made on the basis of the best scientific and commercial data available.
If we find that there is new information concerning any of the 23 species listed in Table 1 indicating a change in classification may be warranted, we may propose a new rule that could do one of the following: (a) Reclassify the species from endangered to threatened; (b) reclassify the species from threatened to endangered; or (c) remove the species from the List. If we determine that a change in classification is not warranted, then these species will remain on the List under their current status.
Submit information regarding the Canelo Hills ladies'-tresses (
Submit information regarding the bunched cory cactus (
Submit information regarding masked bobwhite (quail) (
Submit information regarding ashy dogweed (
Submit information regarding Gulf Coast jaguarundi (
Submit information regarding Koster's springsnail (
Submit information regarding the Arkansas River shiner (
We request any new information concerning the status of the 23 species listed in Table 1. See “What information is considered in the review?” heading for specific criteria. Information submitted should be supported by documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources. Before including your address, phone number, e-mail address, or other personal identifying information in your comments, 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 from public review, we cannot guarantee that we will be able to do so.
This document is published under the authority of the Endangered Species Act (16 U.S.C. 1531
Bureau of Land Management.
Correction.
The Bureau of Land Management published a document in the
Duane Marti, 916-978-4675.
In the
United States International Trade Commission.
February 19, 2009 at 11 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meetings: none.
2. Minutes.
3. Ratification List.
4. Inv. No. 731-TA-1022 (Review) (Refined Brown Aluminum Oxide from China)—briefing and vote. (The Commission is currently scheduled to
5. Inv. Nos. 701-TA-454 and 731-TA-1144 (Final) (Welded Stainless Steel Pressure Pipe from China)—briefing and vote. (The Commission is currently schedule to transmit its determinations and Commissioners' opinions to the Secretary of Commerce on or before March 2, 2009.)
6. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
United States International Trade Commission.
Termination of five-year review.
The subject five-year review was initiated in November 2008 to determine whether revocation of the antidumping duty order on ceramic station post insulators from Japan would be likely to lead to continuation or recurrence of material injury. On December 12, 2008, the Department of Commerce published notice that it was revoking the order effective December 30, 2008, “{b}ecause the domestic interested parties did not participate in this sunset review* * *” (73 FR 75675). Accordingly, pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)), the subject review is terminated.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
This review is being terminated under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.69 of the Commission's rules (19 CFR 207.69).
By order of the Commission.
Notice is hereby given that on February 5, 2009, a proposed consent decree in
The proposed Consent Decree will resolve claims alleged in this action by the United States and the State of West Virginia against Patriot Coal Corporation et al. for the discharge of pollutants into waters of the United States in violation of Section 301 of the Act, 33 U.S.C. 1311, and in violation of the conditions and limitations of National Pollutant Discharge Elimination System (“NPDES”) permits issued by the State pursuant to Section 402 of the Act, 33 U.S.C. 1342, and W. Va. Code 22-11-8. Under the proposed Consent Decree, Defendants will perform injunctive relief including: Hiring a third-party consultant to develop and implement a company-wide compliance-focused environmental management system, creating a database to track information relevant to compliance efforts, conducting regular internal and third-party environmental compliance audits, implementing a system of tiered response actions for any potential future violations, conducting annual training for all employees and contractors with environmental responsibilities and/or responsibilities under the consent decree, and implementing stream restoration projects. In addition, Patriot will pay a civil penalty of $6.5 million.
The Department of Justice will accept comments relating to the proposed consent decree for a period of thirty (30) days from the date of publication of this notice. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and mailed either electronically to
A copy of the proposed consent decree may also be obtained by mail from the Department of Justice Consent Decree Library, P.O. Box 7611, Washington, DC 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood (
Pursuant to 21U.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) 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),
The company plans to import the listed controlled substances for the manufacture of diagnostic products for 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 should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than March 13, 2009.
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 January 6, 2009, Siegfried (USA), Inc., 33 Industrial Park Road, Pennsville, New Jersey 08070, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in schedules I and II:
The company plans to manufacture the listed controlled substances in bulk for distribution to its customers.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substances, 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 should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control,
10 a.m., Thursday, February 12, 2009.
The Richard V. Backley Hearing Room, 9th Floor, 601 New Jersey Avenue, NW., Washington, DC.
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Jean Ellen (202) 434-9950 / (202) 708-9300 for TDD Relay / 1-800-877-8339 for toll free.
Institute of Museum and Library Services (IMLS), NFAH.
Notice of meeting.
This notice sets forth the agenda of the forthcoming meeting of the National Museum and Library Services Board. This notice also describes the function of the Board. Notice of the meeting is required under the Sunshine in Government Act.
I. Welcome.
II. Approval of Minutes.
III. Board Program: Community Revitalization: The Contributions of Libraries and Museums.
IV. Financial Update
V. Legislative Update.
VI. Board Updates.
VII. Adjournment.
(Open to the Public.)
The meeting will be held in the Board Room of the Sofia Hotel, 150 W. Broadway, San Diego, California. Telephone: (619) 234-9200.
Elizabeth Lyons, Special Events and Board Liaison, Institute of Museum and Library Services, 1800 M Street, NW., 9th Floor, Washington, DC 20036. Telephone: (202) 653-4676.
The National Museum and Library Services Board is established under the Museum and Library Services Act, 20 U.S.C. Section 9101 et seq. The Board advises the Director of the Institute on general policies with respect to the duties, powers, and authorities related to Museum and Library Services. If you need special accommodations due to a disability, please contact: Institute of Museum and Library Services, 1800 M Street, NW., 9th Floor, Washington, DC 20036. Telephone: (202) 653-4676; TDD (202) 653-4614 at least seven (7) days prior to the meeting date.
8:30 a.m., Wednesday, February 18, 2009.
NTSB Conference Center, 429 L'Enfant Plaza, SW., Washington, DC 20594.
The one item is open to the public.
Telephone: (202) 314-6100.
Individuals requesting specific accommodations should contact Rochelle Hall at (202) 314-6305 by Friday, February 13, 2009.
The public may view the meeting via a live or archived Webcast by accessing a link under “News & Events” on the NTSB home page at
Vicky D'Onofrio, (202) 314-6410.
U.S. Nuclear Regulatory Commission (NRC).
Notice of pending NRC action to submit an information collection request to the Office of Management and Budget (OMB) and solicitation of public comment.
The NRC invites public comment about our intention to request the OMB's approval for renewal of an existing information collection that is summarized below. We are required to publish this notice in the
Information pertaining to the requirement to be submitted:
1.
2.
3.
4.
5.
6.
7.
Submit, by April 13, 2009, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide Web site:
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Materials, Metallurgy & Reactor Fuels will hold a meeting on Tuesday, March 3, 2009, at 11545 Rockville Pike, Rockville, Maryland, Room T-2B3.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review pellet clad interaction failures under extended power uprate conditions. The Subcommittee will hear presentations by and hold discussions with representatives of the NRC and the industry. 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 Officer, Michael Benson (Telephone: 301-415-6396) 5 days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted only during those portions of the meeting that are open to the public. 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 a.m. and 5 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.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (the “Commission”) has submitted to the Office of Management and Budget a request for extension of the previously approved collection of information discussed below.
Section 19(a) (15 U.S.C. 80a-19(a)) of the Investment Company Act of 1940 (the “Act”)
Rule 19a-1 (17 CFR 270.19a-1) under the Act, entitled “Written Statement to Accompany Dividend Payments by Management Companies,” sets forth specific requirements for the information that must be included in statements made pursuant to section 19(a) by or on behalf of management companies.
The purpose of rule 19a-1 is to afford fund shareholders adequate disclosure of the sources from which distribution payments are made. The rule is intended to prevent shareholders from confusing income dividends with distributions made from capital sources. Absent rule 19a-1, shareholders might receive a false impression of fund gains.
Based on a review of filings made with the Commission, the staff estimates that approximately 4600 series of registered investment companies that are management companies may be subject to rule 19a-1 each year, and that each portfolio on average mails two statements per year to meet the requirements of the rule.
The staff estimates that approximately one-third of the total annual burden (3,067 hours) would be incurred by a paralegal with an average hourly wage rate of approximately $168 per hour,
To comply with state law, many investment companies already must distinguish the different sources from which a shareholder distribution is paid and disclose that information to shareholders. Thus, many investment
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Compliance with the collection of information required by rule 19a-1 is mandatory for management companies that make statements to shareholders pursuant to section 19(a) of the Act. 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.
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 send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 350l
Form N-17f-2 (17 CFR 274.220) under the Act is entitled “Certificate of Accounting of Securities and Similar Investments in the Custody of Management Investment Companies.” Form N-17f-2 is the cover sheet for the accountant examination certificates filed under rule 17f-2 (17 CFR 270.17f-2) by registered management investment companies (``funds”) maintaining custody of securities or other investments. Form N-17f-2 facilitates the filing of the accountant's examination certificates prepared under rule 17f-2. The use of the form allows the certificates to be filed electronically, and increases the accessibility of the examination certificates to both the Commission's examination staff and interested investors by ensuring that the certificates are filed under the proper Commission file number and the correct name of a fund.
Commission staff estimates that on an annual basis it takes: (i) On average 1.25 hours of fund accounting personnel at a total cost of $188.75 to prepare each Form N-17f-2;
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms. Complying with the collections of information required by Form N-17f-2 is mandatory for those funds that maintain custody of their own assets. Responses will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid 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 send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation S-B (17 CFR 228.10, 228.101—228.103, 228.201—228.202, 228.303—228.308, 228.310, 228.401—228.407, 228.501—228.512, 228.601, 228.701—228.703) specifies the non-financial disclosure requirements applicable to registration statements under 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:
On September 19, 2008, the BATS Exchange, Inc. (“BATS” or “BATS Exchange”) submitted to the Securities and Exchange Commission (“SEC” or “Commission”) in accordance with Section 11A of the Securities Exchange Act of 1934 (“Act”)
The Joint-SRO Plan establishes procedures for market centers to follow in making their monthly reports required pursuant to Rule 605 of Regulation NMS, available to the public in a uniform, readily accessible, and usable electronic format. The current participants to the Joint-SRO Plan are the American Stock Exchange LLC, Boston Stock Exchange, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., Cincinnati Stock Exchange, Inc. (n/k/a National Stock Exchange
Section III(b) of the Joint-SRO Plan provides that a national securities exchange or national securities association may become a party to the Plan by: (i) Executing a copy of the Plan, as then in effect (with the only changes being the addition of the new participant's name in Section II(a) of the Plan and the new participant's single-digit code in Section VI(a)(1) of the Plan) and (ii) submitting such executed plan to the Commission for approval. BATS submitted a signed copy of the Joint-SRO Plan to the Commission in accordance with the procedures set forth in the Plan regarding new participants.
The Commission finds that the amendment to the Joint-SRO Plan is consistent with the requirements of the Act and the rules and regulations thereunder. Specifically, the Commission finds that the proposed amendment is consistent with the requirements of Section 11A of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, February 12, 2009 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain
The Acting General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Paredes, as duty officer, voted to consider the items listed for the Closed Meeting in closed session, and determined that no earlier notice thereof was possible.
The subject matter of the Closed Meeting scheduled for Thursday, February 12, 2009 will be:
Formal orders of investigation;
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings of an enforcement nature;
An adjudicatory matter; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
CBOE proposes to adjust (i) the monthly access fee for persons granted temporary CBOE membership status (“Temporary Members”) pursuant to Interpretation and Policy .02 under CBOE Rule 3.19 (“Rule 3.19.02”) and (ii) the monthly access fee for Interim Trading Permit (“ITP”) holders under CBOE Rule 3.27. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, CBOE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The current access fee for Temporary Members under Rule 3.19.02
The indicative lease rate is defined under Rule 3.27(b) as the highest clearing firm floating monthly rate
The Exchange used the same process to set the proposed Temporary Member and ITP access fees that it used to set the current Temporary Member and ITP access fees. The only difference is that the Exchange used clearing firm floating monthly rate information for the month of February 2009 to set the proposed access fees (instead of clearing firm floating monthly rate information for the month of January 2009 as was used to set the current access fees) in order to take into account changes in clearing firm floating monthly rates for the month of February 2009.
The Exchange believes that the process used to set the proposed Temporary Member access fee and the proposed Temporary Member access fee itself are appropriate for the same reasons set forth in CBOE rule filing SR-CBOE-2008-12 with respect to the original Temporary Member access fee.
Each of the proposed access fees will remain in effect until such time either that the Exchange submits a further rule filing pursuant to Section 19(b)(3)(A)(ii) of the Act
The procedural provisions of the CBOE Fee Schedule related to the assessment of each proposed access fee are not proposed to be changed and will remain the same as the current procedural provisions relating to the assessment of that access fee.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
CBOE 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.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A) 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 Elizabeth M. Murphy, 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.
On December 3, 2008, Chicago Board Options Exchange, Incorporated (“CBOE”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission has carefully reviewed the proposed rule change and 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
If CBSX is at quoting at the national best bid or offer (“NBBO”) when a Trade, Flash and Cancel order is submitted to CBSX, CBSX will execute the incoming order automatically against the published quotation. However, if CBSX is not quoting at the NBBO, the Trade, Flash and Cancel designation initiates a process whereby the order would be electronically exposed to CBSX traders for a period of up to three seconds, rather than routed away to other markets, in accordance with Exchange Rule 52.6(a). CBSX traders will not know the identity or the account type of the party that submitted the Trade, Flash and Cancel order.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Financial Industry Regulatory Authority, Inc. (“FINRA”) (f/k/a National Association of Securities Dealers, Inc. (“NASD”)) filed with the Securities and Exchange Commission (“SEC” or “Commission”) on October 14, 2008 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA proposed to amend its Customer Code and Industry Code to require arbitrators to provide an explained decision upon the joint request of the parties. The explained decision would be a fact-based award stating the general reason(s) for the arbitrators' decision; it would not be required to include legal authorities and/or damage calculations. Under the proposed rule change, parties would be required to submit any joint request for an explained decision at least 20 days before the first scheduled hearing date.
The arbitrators would not be required to provide an explained decision in cases resolved without a hearing under simplified arbitration Rules 12800 and 13800 or in default cases conducted under Rules 12801 and 13801.
FINRA did not propose to amend Rules 12904(f) and 13904(f), which provide that an award may contain an underlying rationale. This means that arbitrators would continue to be permitted to decide, on their own, to write an explained decision. Thus, as is currently the case, if the panel decides on its own to write an explained decision, FINRA would not pay an additional honorarium to any panel member.
The absence of explanations in awards is a common complaint of non-prevailing parties in the FINRA forum, especially customers and associated persons. In order to address these complaints and increase investor confidence in the fairness of the arbitration process, in March 2005, FINRA filed a proposed rule change with the SEC that would have required arbitrators to provide explained decisions upon the request of customers, or of associated persons in industry controversies. The SEC published the original proposed rule
While FINRA was considering its next steps, there were several new developments related to explained decisions in other contexts. FINRA filed with the Commission dispositive motions
The original proposed rule change would have permitted a customer, or an associated person in an intra-industry controversy, to require an explained decision. Many commenters objected to the one-sided nature of that provision. Under the new proposed rule change, all parties to a case would have to agree to an explained decision. Moreover, while the arbitrators will be resolving the entire matter and the explained decision would normally address all the claims asserted by the parties, the parties may request that an explained decision address only certain claims. According to FINRA, requiring the parties' joint agreement to an explained decision is consistent with FINRA's general policy to accommodate a joint request of the parties.
The new proposed rule change would provide that parties must submit any joint request for an explained decision no later than 20 days prior to the first scheduled hearing date. This deadline coincides with the time that parties must exchange documents and identify witnesses they intend to present at the hearing. In FINRA's view, this approach would establish a clear deadline, give the parties sufficient time to request an explained decision, and provide notice to the arbitrators that an explained decision will be required before the hearing begins.
The new proposed rule change would require that the chairperson write the explained decision. The original proposed rule change contemplated that any of the arbitrators, or all of them, might draft the decision. Many commenters on the original proposed rule change were concerned that poorly written decisions might harm the public's perception of arbitration, or increase the likelihood of a party successfully vacating an award. To address these concerns, the rule would require that the chairperson write the decision.
Under the Codes, arbitrators must meet specific experience and training criteria to serve as chairpersons in arbitrations.
• Have a law degree and are a member of a bar of at least one jurisdiction and have served as an arbitrator through award on at least two arbitrations administered by a self-regulatory organization in which hearings were held; or
• Have served as an arbitrator through award on at least three arbitrations administered by a self-regulatory organization in which hearings were held.
On June 23, 2008, the SEC approved a proposal to eliminate the Code provision allowing arbitrators to serve as Chairpersons provided they have “substantially equivalent training or experience” in lieu of completing FINRA Dispute Resolution's Chairperson training course (
Under the new proposed rule change, the explained decision would be a fact-based award stating the general reason(s) for the arbitrators' decision.
The original proposed rule change did not address who would have been responsible for preparing the explained decision and provided that each arbitrator would be paid an additional $200 honorarium for cases in which an explained decision was required. Under the new proposed rule change, only the chairperson would write the decision,
Under the new proposed rule change, parties would not be able to require explained decisions in two types of arbitration proceedings. The first is simplified arbitrations that are decided solely upon the pleadings and evidence filed by the parties, as described in Rules 12800 and 13800. The second is arbitrations that are conducted under the default procedures provided for in Rules 12801 and 13801. According to FINRA, explained decisions would not be appropriate in either of these situations because of the abbreviated nature of these arbitration proceedings.
Under the new proposed rule change, arbitrators would continue to be permitted to decide, on their own or upon the motion of one party, to write an explained decision. Arbitrators would not receive an additional honorarium if the panel issues an explained decision that is not required under the proposed rules. The new proposed rule change would not affect the current rule that permits arbitrators to include a rationale in an award, even if the parties have not requested it, and would not encourage arbitrators to write an explained decision when they are not asked to do so by all the parties.
The SEC received five comment letters.
One commenter supported the proposal, but asserted that every panel should provide a brief explanation for each award.
FINRA responded to these comments by stating that under FINRA's original proposal (which has since been withdrawn), arbitrators would have been required to provide explained decisions upon the request of customers, or of associated persons in industry disputes.
FINRA further asserted that one of the benefits of arbitration is that it is final and binding, and courts rarely vacate awards.
One commenter stated that the proposal does not provide sufficient guidance to arbitrators.
FINRA responded by stating that the proposed rule specifies that a fact-based decision includes the general reasons for the arbitrators' decision, and that arbitrators do not have to include legal authorities or damage calculations.
One commenter argued that requiring a joint request for an explained decision eliminates the need for the proposal.
FINRA concluded by stating that the proposal will increase investor confidence in the fairness of the arbitration process, and should be approved.
After careful review of the proposed rule change, the comments, and FINRA's response to the comments, the Commission finds that the proposed rule change is consistent with the requirements of the Act, and the rules and regulations thereunder that are applicable to a national securities association.
In general, the Commission believes that FINRA has responded to the comments adequately and appropriately, and has explained how the proposed rule change is consistent with the requirements of the Act, and the rules and regulations thereunder that are applicable to a national securities association.
The Commission's oversight of the securities arbitration process is directed at ensuring that it is fair and efficient. The Commission shares the concerns expressed by a commenter that the proposal may not increase investors' perceptions of fairness in circumstances in which an industry party does not agree to an investor's request for an explained decision. Nevertheless, the Commission believes that the even-handed approach of providing parties a means of jointly requesting a decision represents a reasonable compromise between the status quo, whereby the Codes offer parties no formal means of requesting an explained decision, and the original proposal, whereby claimants alone would have the right to request an explained decision. Further, the Commission believes that the procedures set forth in FINRA's proposed rule (including, procedures related to: Deadlines for submitting a request; designating the chairperson as the writer of explained decisions; compensation for writing explained decisions; substance of the explained decision; and eligibility of cases for explained decisions) will contribute to the efficiency of the securities arbitration process by setting forth clear guidelines for parties and arbitrators in instances where parties have jointly requested an explained decision.
At the same time, the Commission is concerned that it may be difficult for parties to mutually agree to request an explained decision, because the decision of whether to request an explained decision (or whether to refuse to request an explained decision) may ultimately be a strategic decision. In order to gauge the effectiveness of the proposal, the Commission has requested that FINRA gather statistics for a period of one year from the effective date of this proposal, on the number of joint requests for explained decisions made in arbitration. Further, the Commission has asked FINRA to report on any anecdotal evidence it receives during this one-year period that may shed light on how often parties are unable to agree to request an explained decision.
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 adopt a sponsored access rule for a pilot period ending on July 29, 2009. The text of the proposed rule change is available on the Exchange's Website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to attract additional business by adopting a sponsored access rule
First, the Sponsored Participant and its Sponsoring Member Organization must have entered into and maintained an Access Agreement with the Exchange. The Sponsoring Member Organization must designate the Sponsored Participant by name in an addendum to the Access Agreement.
Second, there must be a Sponsored Participant Agreement between the Sponsoring Member Organization and the Sponsored Participant that contains the following sponsorship provisions, enumerated in full in Rule 1094(b)(ii):
(i) The orders of the Sponsored Participant are binding in all respects on the Sponsoring Member Organization;
(ii) The Sponsoring Member Organization is responsible for the actions of the Sponsored Participant;
(iii) In addition to the Sponsoring Member Organization being required to comply with the Exchange Certificate of Incorporation, By-laws, Rules and procedures of the Exchange, the Sponsored Participant shall do so as if such Sponsored Participant were an Exchange member organization;
(iv) The Sponsored Participant shall maintain, keep current and provide to the Sponsoring Member Organization a list of individuals authorized to obtain access to the Exchange on behalf of the Sponsored Participant;
(v) The Sponsored Participant shall familiarize its authorized individuals with all of the Sponsored Participant's obligations under this Rule and will assure that they receive appropriate training prior to any use or access to the Exchange;
(vi) The Sponsored Participant may not permit anyone other than authorized individuals to use or obtain access to the Exchange;
(vii) The Sponsored Participant shall take reasonable security precautions to prevent unauthorized use or access to the Exchange, including unauthorized entry of information into the Exchange, and agrees that it is responsible for any and all orders, trades and other messages and instructions entered, transmitted or received under identifiers, passwords and security codes of authorized individuals, and for the trading and other consequences thereof;
(viii) The Sponsored Participant acknowledges its responsibility to establish adequate procedures and controls that permit it to effectively monitor its employees', agents' and Participants' use and access to the Exchange for compliance with the terms of this agreement;
(ix) The Sponsored Participant shall pay when due all amounts, if any, payable to Sponsoring Member Organization, the Exchange, or any other third parties that arise from the Sponsored Participant's access to and use of the Exchange. Such amounts include, but are not limited to applicable exchange and regulatory fees.
Third, the Sponsoring Member Organization must provide the Exchange with a Sponsored Participant Addendum to its Access Agreement acknowledging its responsibility for the orders, executions and actions of its Sponsored Participant at issue.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of such proposed rule change the
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 Elizabeth M. Murphy, 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.
On September 30, 2008, the National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-NSCC-2008-08 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The Mutual Fund Profile Service (“Profile”) is a central data source for comprehensive fund prospectus and operational information relating to mutual funds. The repository is a recognized industry standard for information critical to the distribution of mutual funds in the third-party market.
Profile is organized into three databases: (1) Security Issue Database (containing information such as Security ID number, security name, fee structure, investment objectives, breakpoint schedule data, and blue sky eligibility); (2) Participant Database (containing contact information, NSCC processing capabilities and restrictions or requirements); and (3) Distribution Database (containing projected or actual distributions, capital gains and dividend amounts and details, and commission information). NSCC fund members input data regarding their mutual funds into the Security Issue and Participant Profile databases. Profile is then accessed by the NSCC members that are mutual fund distributors.
NSCC has recently enhanced the Security Issue Database in Profile to include new data fields needed by distributors and to re-engineer the structure of the data hierarchy to be easier for fund members to populate their data. Some of the enhancements to the Profile database were initiated in response to a recommendation in the Report (“Report”) of The Joint NASD/Industry Task Force on Breakpoints (“Task Force”).
Consistent with its efforts to expand Profile's capabilities as a comprehensive and accurate source for the mutual fund distribution industry, NSCC is now amending its rules to add an agreement that requires NSCC fund members to have taken reasonable steps to validate the accuracy of their data they submit to the Profile database. This agreement is not intended to be either a basis for independent legal rights against the fund member or is any third party intended or permitted to rely upon it as a representation to a third party or upon which a third-party can base any legal rights. NSCC requires similar agreements from its members elsewhere in its rules and in its membership agreement, such as the agreement required of a fund member in Section 2 of Rule 51 to not submit a transaction through NSCC's Mutual Fund Services in contravention of any applicable regulatory requirements.
Section 17A(b)(3)(F) of the Act requires, among other things, that the rules of a clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions, assure the safeguarding of securities and funds which are in the custody or control of the clearing agency or for which it is responsible, to foster cooperation and coordination with persons engaged in the clearance and settlement of securities transactions, to remove impediments to and perfect the mechanism of a national system for the prompt and accurate clearance and settlement of securities transactions, and, in general, to protect investors and the public interest.
Accordingly, for the reasons stated above the Commission believes that the rule change is consistent with NSCC's obligation under Section 17A of the Act.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act and the rules and regulations thereunder.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
On October 30, 2008, the New York Stock Exchange LLC (“NYSE”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-NYSE-2008-112 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
As a part of the securities industry moving towards eliminating the use of physical certificates (
In its letter to the NYSE, the Securities Industry and Financial Markets Association (“SIFMA”), which is one of the leaders in the movement towards dematerialization, requested that the NYSE discontinue its prohibition of issuers or their transfer agents charging fees in connection with the issuance of securities certificates (“SIFMA Letter”).
NYSE believes that securityholders derive no apparent benefit from continuing to hold their securities in certificated form rather than in uncertificated form in street name or through DRS and that the inability of the issuers or their transfer agents to charge for the issuance of securities certificates imposes a considerable cost on issuers and transfer agents. Therefore, NYSE is discontinuing its prohibition of issuers or their transfer agents charging fees for the issuance of new certificates. Allowing transfer agents to charge for the issuance of certificates should not only shift the cost of the issuance of certificates from the issuers and transfer agents to the requesting securityholders but should also have the added effect of encouraging more securityholders to hold their securities in street name or through DRS, which should further the dematerialization movement. NYSE listed companies that want their investors to continue to have access to the free issuance of new certificates will be able to ensure the continuation of such practice through their contractual arrangements with their transfer agents.
NYSE believes that the rule change will help make the securities markets more safe and efficient by encouraging the dematerialization of securities and by correctly placing the cost of the use of certificates on those investors requesting certificates. NYSE also believes that the rule change is consistent with the protection of investors and the public interest because holding a securities position in street name or through DRS provides investors with the ability to hold their securities in a safe and cost-effective manner without incurring the costs associated with the issuance and processing of securities certificates.
The Commission received two comment letters,
Section 6(b)(5) of the Act requires, among other things, that the rules of an exchange be designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transaction in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.
Accordingly, for the reasons stated above the Commission believes that the rule change is consistent with NYSE's obligation under Section 6 of the Act.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular with the requirements of Section 6 of the Act and the rules and regulations thereunder.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
On December 12, 2008, NYSE Alternext US LLC (“Exchange” or “NYSE Alternext”) filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to offer, through its wholly-owned subsidiary NYSE Euronext Advanced Trading Solutions, Inc., the RMG service to NYSE Alternext members and member organizations pursuant to voluntary, contractual arrangements.
RMG would only interact with a Sponsored Participant's order prior to the order's receipt by the Exchange's trading system. In addition, RMG would only return an order to the Sponsored Participant if the order did not meet the criteria set by the Sponsoring Member Organization. RMG would not provide order execution or trade reporting capabilities, but RMG would maintain records of all messages related to
The Sponsoring Member Organization, and not RMG, will have full responsibility for ensuring that Sponsored Participants' sponsored access to the Exchange complies with the Exchange's sponsored access rules. The use of the RMG by a Member Organization does not automatically constitute compliance with Exchange rules.
The Exchange proposes to make RMG available to its members and member organizations pursuant to contractual arrangements. The Exchange states that it believes that RMG will offer its members and member organizations another option in the efficient risk management of its Sponsored Participant's access to the NYSE Alternext Trading Systems.
After careful review, the Commission finds that the Exchange's proposal to establish its RMG service is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the foregoing reasons, the Commission believes that the proposal to establish the RMG service is consistent with the Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Alternext Equities Rules 116 (“Stop” Constitutes Guarantee) and 123C (Market On The Close Policy And Expiration Procedures) to create a single closing print to be reported to the Consolidated Tape for each security.
The text of the proposed rule change is available at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
Through this filing the Exchange seeks to amend NYSE Alternext Equities Rules 116 and 123C to create a single closing print to be reported to the Consolidated Tape for each security.
As described more fully in a related rule filing,
In connection with the Merger, on December 1, 2008, the Exchange relocated all equities trading conducted on the Exchange legacy trading systems and facilities located at 86 Trinity Place, New York, New York (the “86 Trinity Trading Systems”), to trading systems and facilities located at 11 Wall Street, New York, New York (the “Equities Relocation”). The Exchange's equity trading systems and facilities at 11 Wall Street (the “NYSE Alternext Trading Systems”) are operated by the NYSE on behalf of the Exchange.
In order to implement the Equities Relocation, the Exchange adopted Rules 1-1004 of the New York Stock Exchange LLC as the NYSE Alternext Equities Rules to govern the equities trading on the NYSE Alternext Trading Systems.
NYSE Alternext Equities Rules 116.40 and 123C prescribe,
Pursuant to NYSE Alternext Equities Rule 123C market participants may enter an MOC order to have that order executed as part of the closing transaction at the price of the close.
Market participants that seek to have their orders executed on the close but are sensitive to price may, pursuant to NYSE Alternext Equities Rule 123C, enter LOC orders that will be eligible for execution in the closing transaction, provided that the closing price is at or within the limit specified.
Pursuant to NYSE Alternext Equities Rule 123C(5), at 3:40 p.m. if a security has a disparity between MOC and marketable LOC interest to buy and MOC and marketable LOC interest to sell of 50,000 shares or more the assigned DMM is required to send a message from Display Book that is published to the Consolidated Tape informing the investing public of the disparity (“Mandatory Indication”). The Mandatory Indication includes the symbol, the amount and the side of the imbalance. In addition, to the Mandatory Indication, a DMM may, with Floor Official approval, disseminate an imbalance publication that is for a disparity of less than 50,000 shares when the imbalance in the security is significant in relation to the average daily trading volume in the security. At 3:50 p.m. the DMM is required to provide an update of the previous imbalance publications.
At the close of trading, any closing imbalance of MOC and marketable LOC orders are calculated by netting (
If there is no imbalance, the aggregate buy and sell MOC and marketable LOC orders are paired off at the price of the last sale of the subject security on the Exchange prior to the close of trading in the security.
The closing transaction on the Exchange continues to be a manual auction in order to facilitate greater price discovery and allow for the maximum interaction between market participants. Currently, increased volatility in the market has given rise to the need to simplify procedures. In order to continue to provide timely closing of securities, the Exchange believes that it is necessary to reduce the manual processing required of the DMM to promote an even more efficient close. As such, the Exchange seeks to create a single closing print to be reported to the Consolidated Tape for each security. The Exchange believes that this will work to optimize the efficient operation of the closing process.
The Exchange therefore proposes to amend NYSE Alternext Equities Rules 116 and 123C(3) to provide for a single closing print to be reported to the Consolidated Tape system for each listed security. Currently, the DMM is required to manually enter the imbalance and the paired prints to Exchange systems for reporting to the Consolidated Tape. Requiring two prints impedes DMMs' efficiency in reporting the closing transaction.
Multiple closing prints were used to provide information about the share imbalances that impacted the closing price of a security on the Exchange. NYSE Alternext Equities Rule 123C allows Exchange systems to disseminate a data feed of real-time order imbalances that accumulate prior to the close of trading on the Exchange (“Order Imbalance Information”). Order Imbalance Information is supplemental information disseminated by the Exchange prior to a closing transaction.
The Exchange believes that the Order Imbalance Information achieves the goal of providing real-time detail and transparency for market participants about the factors that impact the closing price of a security. The Exchange further notes that the current imbalance publications pursuant to NYSE Alternext Equities Rule 123C(5) will continue to be disseminated in accordance with the provisions of the rule. As such, the Exchange believes that there no longer exists a need for the dissemination of two separate prints at the close.
The Exchange therefore proposes that the imbalance, if any, paired off closing transactions and stop orders elected for execution on the close be reported to the Consolidated Tape System as a single transaction and print. The Exchange proposes to amend the text of NYSE Alternext Equities Rule 116.40(C) to remove language that states that “pair off” transactions should be printed to the Consolidated Tape as stopped stock. Similarly, the Exchange proposes to amend NYSE Alternext Equities Rule 123C(3) (Closing Prints) to state that the imbalance and the pair off amounts shall be printed to the Consolidated Tape as a single transaction.
Pursuant to the above proposed changes, a single print close in a security would occur as described in the example below:
The DMM for stock XYZ has determined that the closing price in the stock will be $30.25. The last sale price on the Exchange was $30.00. The DMM has 6,000,000 shares of MOC and marketable LOC buy orders up to a price of $30.25. On the sell side, there are 5,000,000 MOC and marketable LOC sell orders down to a price of $30.24. The DMM pairs 5,000,000 shares of MOC and marketable LOC buy orders against the 5,000,000 shares of MOC and marketable LOC sell orders at a price of $30.25, leaving an imbalance of 1,000,000 shares on the buy side. On the Display Book, the DMM has 700,000 shares of limit sell orders at various prices marketable up to a price of $30.25, and there is also Crowd interest of 300,000 shares at that price. The DMM will use the 700,000 shares of limit sell orders on the Display Book and 300,000 shares of Crowd interest to offset the remaining 1,000,000 shares of MOC and marketable buy LOC imbalance.
In the above example, the DMM would continue to arrange the closing transaction as set forth in NYSE Alternext Equities Rules 123C(3) and 116.40; however, rather than reporting two separate closing prints to the Consolidated Tape, a single closing print reflecting the execution of 6,000,000 shares at $30.25 would be reported. The 6,000,000 share volume in the single print close includes: (1) the 1,000,000 share buy order imbalance; and (2) the 5,000,000 shares of MOC and marketable LOC buy and sell orders that were paired off.
The Exchange believes that the consolidation of the separate closing transactions and prints will reduce the amount of manual information to be reported by the DMM thus increasing the speed and efficiency of the closing process ultimately improving the quality of the Exchange market with timelier reporting of closing transactions.
Percentage orders are not valid orders on the Exchange; however, there remains an inadvertent reference to this legacy order type in NYSE Alternext Equities Rule 123C(3). The Exchange therefore seeks to correct this oversight by deleting that reference to percentage order from the rule through this filing given that percentage orders are not valid order types.
The Exchange notes that parallel changes are proposed to be made to the rules of the NYSE. These changes are described in SR-NYSE-2009-10.
The Exchange proposes that the amendments herein will be operative as of February 6, 2009.
The Exchange believes that its proposal is consistent with Section 6(b) of the Securities Exchange Act of 1934 (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.
No written comments were solicited or received with respect to the proposed rule change.
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing.
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because doing so will enable the Exchange to immediately implement a more efficient closing process, thereby providing for timelier reporting of the
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such 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 Elizabeth M. Murphy, 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 Rule 5.4 to eliminate the $3 market price per share requirement from the Exchange's requirements for continued approval for an underlying security and eliminate the prohibition against listing additional series of options on an underlying security at any time when the price per share of such underlying security is less than $3. Changes to the rule text are shown in the attached Exhibit 5.
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this proposed rule change is to eliminate the $3 market price per share requirement from the Exchange's requirements for continued approval for an underlying security from Rule 5.4. In addition, the rule filing would further amend Rule 5.4 by eliminating the prohibition against listing additional series of options on an underlying security at any time when the price per share of such underlying security is less than $3.
The Exchange believes that the $3 market price per share requirement is no longer necessary or appropriate, and states that only those underlying securities meeting the remaining maintenance listing criteria set forth in Rule 5.4 will be eligible for continued listing and the listing of additional option series. The Exchange believes
As of January 2, 2009, the Exchange had 209 underlying issues that had closed below $3 per share, and an additional 176 that had closed between $3 and $5 per share, out of a total of 2170 underlying classes.
The Exchange believes the proposed rule change is consistent with and furthers the objectives of Section 6(b)(5) of the Act, in that it is designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest, as it provides for the continued listing of options overlying securities that meet all requirements except for share price. By continuing the listing, investors will be able to continue managing risk in these securities.
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.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such 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 Elizabeth M. Murphy, 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)
The Exchange proposes to amend its rules governing NYSE Arca, LLC (also referred to as the “NYSE Arca Marketplace”), which is the equities trading facility of NYSE Arca Equities. The Exchange proposes to adopt a technical original listing fee applicable specifically to Derivative Securities Products (as defined below) and Structured Products (as defined below). The filing also removes from the NYSE Arca Schedule of Fees and Charges a reference to a fee waiver that was applicable only in 2007 and is therefore no longer relevant. 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 those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to adopt a technical original listing fee applicable specifically to Derivative Securities Products and Structured Products.
For the purposes of this proposed fee, the term “Derivative Securities Products” shall include securities described in NYSE Arca Equities Rules 5.2(j)(3) (Investment Company Units); 8.100 (Portfolio Depositary Receipts); 8.200 (Trust Issued Receipts); 8.201 (Commodity-Based Trust Shares); 8.202 (Currency Trust Shares); 8.203 (Commodity Index Trust Shares); 8.204 (Commodity Futures Trust Shares); 8.300 (Partnership Units); 8.500 (Trust Units); and 8.600 (Managed Fund Shares). The term “Structured Products” shall include securities listed under Rule 5.2(j)(1) (Other Securities); 5.2(j)(2) (Equity Linked Notes), Rule 5.2(j)(4) (Index-Linked Exchangeable Notes); Rule 5.2(j)(6) (Equity Index-Linked Securities, Commodity-Linked Securities, Currency-Linked Securities, Fixed Income Index-Linked Securities, Futures-Linked Securities and Multifactor Index-Linked Securities); Rule 5.2(j)(7) (Trust Certificates); Rule 8.3 (Currency and Index Warrants); and Rule 8.400 (Paired Trust Shares).
Derivative Securities Products and Structured Products are currently subject to the Exchange's existing technical original listing fee of $5,000, which is applicable to all listed securities (other than closed-end funds, for which the Exchange previously adopted a separate technical original listing fee of $15,000).
The Exchange believes that the existing $5,000 fee is not suitable for Derivative Securities Products and Structured Products, as it is very high in comparison to the initial and continued listing fees for those securities. Issuers of Derivative Securities Products pay a flat initial listing fee of $5,000 and issuers of Structured Products pay a minimum of $5,000 in initial listing fees and a maximum of $45,000, depending on how many securities are issued. In comparison, the minimum initial listing fee for operating company common stock is $100,000 and the maximum is $150,000. The annual fee for Derivative Securities Products ranges from $2,000 to $25,000 and for Structured Products from $10,000 to $55,000. Generally, in comparison, annual fees for common stock of operating companies range from $30,000 to $85,000. Generally, for any given number of securities issued and outstanding, the initial and annual fees payable for a listed common stock far exceed the amount payable for a comparable number of securities of a Derivative Securities Product or Structured Product. The Exchange believes that the existing technical original listing fee is disproportionate in relation to the other costs of listing Derivative Securities Products and Structured Products on the Exchange and that a $2,500 fee is more consistent with the pricing expectations of issuers of these categories of securities. The $2,500 fee may include multiple issues of securities from the same issuer. The Exchange believes that charging a single application fee for multiple securities covered on a single application is appropriate, as there is very little additional work required by Exchange staff to process multiple technical original listings of the same issuer in comparison to the work required in connection with the processing of an application for a single security. The Exchange recognizes that it does not take this approach to multiple classes of equity securities of an operating company, but believes that the distinction is appropriate for two reasons: (i) Given the much lower listing fees associated with the listing of Derivative Securities Products and Structured Products than with operating company equity listings, even the $2,500 technical original listing fee would be proportionately much greater in comparison to the initial and annual fees paid by issuers of Derivative
The filing also removes from the NYSE Arca Schedule of Fees and Charges a reference to a fee waiver that was applicable only in 2007 and is therefore no longer relevant. Issuers are subject to Annual Fees in the year of listing, pro-rated based on days listed that calendar year. However, for those issuers dually listed on the Exchange and another securities exchange on January 1, 2007 who gave notice by June 30, 2007 to the Exchange of their intention to voluntarily withdraw from listing on the Exchange (and in fact withdraw during 2007), the 2007 annual listing fees were waived (and not subject to prorating). This filing removes text from Footnote 8 to the NYSE Arca Schedule of Fees and Charges which described this waiver, as that text is of no further relevance.
The NYSE Arca Schedule of Fees and Charges can be found on the Exchange's Web site at
The bases under the Exchange Act for this proposed rule change are: (i) The requirement under Section 6(b)(4)
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 Exchange Act.
Written comments on the proposed rule change were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve the 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 is consistent with the Exchange 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 Elizabeth M. Murphy, 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.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the following information
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Submit comments to the Office of Management and Budget (OMB) for up to 30 days from February 11, 2009.
Direct comments and questions to Katherine Astrich, the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB), who may be reached at 202-395-4718. You may submit comments by any of the following methods:
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You may obtain copies of the proposed information collection and supporting documents from Anitra Collins, Room L213, 2401 E St., NW., Washington, DC 20052-0101, who may be reached on 202-663-1754 or at
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary to properly perform our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.
Forms DS-1622 and DS-1843 is designed to collect medical information to provide medical providers with current and adequate information to base decisions on medical suitability for a federal employee and family members for assignment abroad. Both forms will allow medical personnel to verify that there are sufficient medical resources at a diplomatic mission abroad to maintain the health and fitness of the individual and family members within the State Department medical program.
The information collected will be collected through the use of an electronic forms engine or by hand written submission using a pre-printed form.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/453-8048). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Department of State.
Notice; correction.
The Department of State published a document in the
Pam Durham, Office of Missile Threat Reduction, Bureau of International Security and Nonproliferation, Department of State (202-647-4931). On import ban issues, Rochelle Stern, Director Policy Planning and Program Management, Office of Foreign Assets Control, Department of the Treasury (202-622-2500). On U.S. Government procurement ban issues, Kim Triplett, Office of the Procurement Executive, Department of State (703-875-4079).
In the
Moksong Trading Corporation (North Korea) and its sub-units and successors.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201 et. seq.). The due date for Answers, Conforming Applications, or Motions to Modify Scope are set forth below for each application. Following the Answer period DOT may process the application by expedited procedures. Such procedures may consist of the adoption of a show-cause order, a tentative order, or in appropriate cases a final order without further proceedings.
The following Agreements were filed with the Department of Transportation under Sections 412 and 414 of the Federal Aviation Act, as amended (49 U.S.C. 1382 and 1384) and procedures governing proceedings to enforce these provisions. Answers may be filed within 21 days after the filing of the application.
Federal Aviation Administration (FAA), DOT.
Notice of Availability of a Draft Final Environmental Assessment for the Proposed Airport Development at the Sawyer County Airport in Hayward, Wisconsin.
The Federal Aviation Administration (FAA), in conjunction with the Wisconsin Department of Transportation Bureau of Aviation (WisDOT BOA), have prepared a joint Federal and State Draft Final Environmental Assessment (DFEA) for the Proposed Airport Development at the Sawyer County Airport in Hayward, Wisconsin. The FAA and WisDOT BOA are making available the DFEA for the following proposed airport improvement projects: installation of an instrument landing system (ILS) for Runway 20 with medium approach lighting system with runway alignment indicator lights; construction of a parallel taxiway/ramp expansion for Runway 2/20; land acquisition; removal of airspace obstructions, including removal/relocation of a town road; and relocation of precision approach path indicator, localizer, and distance measuring equipment at Runway 20.
The proposed airport improvement projects include both state block program actions and FAA actions. Actions for the proposed airport improvement project would be divided between FAA and WisDOT BOA. Agency approvals are required to proceed. Proposed FAA actions include: provide Federal environmental approval to establish eligibility to participate in Federal funding for eligible projects not included in the state block grant program which are assessed in the EA; issue an environmental finding for FAA actions; provide ILS equipment, assist in the design of the proposed ILS; perform the flight check, certification, and operation of the proposed ILS; and provide long-term maintenance of the proposed ILS.
Proposed WisDOT BOA actions for the airport improvement projects include: issue an environmental finding for WisDOT BOA's actions; determine eligibility of Airport Improvement Program funds for the proposed ILS project; approve the necessary funding for the proposed ILS project; assist in design of the proposed ILS; purchase land for the proposed ILS; install the proposed ILS; construct necessary airport facilities to support proposed ILS and airport operations; develop, implement, and monitor required mitigation for unavoidable impacts due to the proposed ILS project.
The DFEA has been prepared in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, FAA Order 1050.1E, “Policies and Procedures for Considering Environmental Impacts,”
The DFEA will be available for public review for 30 days at the following locations:
Written comments are encouraged from persons or interested parties. Written comments concerning the DFEA will be accepted until 5 p.m. CST, Monday, March 16, 2009. Written comments may be sent to: Ms. Virginia Marcks, Manager, Infrastructure Engineering Center, Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines, IL 60018.
Ms. Virginia Marcks, Manager, Infrastructure Engineering Center, Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines, Illinois 60018.
The Sawyer County Airport currently has non-precision instrument approach capabilities. During inclement weather with low visibility and low ceilings, aircraft pilots may not be able to land because they are unable to see the landing runway as they approach to land. Instrument flight rules (IFR) regulate aircraft operations during inclement weather under low visibility and cloud ceilings. Under IFR conditions, aircraft must use an instrument approach to initiate the landing process. The proposed ILS would provide instrumentation that would allow landings under IFR conditions.
Medical transport pilots from several companies use the Sawyer County Airport on a regular basis. Medical flights are not scheduled events; they occur whenever a medical emergency arises, good weather or bad. When medical transports cannot land, it is more than an inconvenience; it's typically a life-threatening situation. An ILS at the Sawyer County Airport would serve the purpose of increasing the probability that those medical transports could land whenever they were needed.
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received.
This notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before March 3, 2009.
You may send comments identified by Docket Number FAA-2008-1260 using any of the following methods:
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We will post all comments we receive, without change, to
Tyneka Thomas (202) 267-7626 or Laverne Brunache (202) 267-3133, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
The Surface Transportation Board has received a request from BST Associates (WB616-2—2/15/08) for access to certain data from the Board's 2005-2007 Carload Waybill Samples. A copy of this request may be obtained from the Office of Economics, Environmental Analysis, and Administration.
The waybill sample contains confidential railroad and shipper data; therefore, if any parties object to these requests, they should file their objections with the Director of the
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for emergency review, and it has been approved under the Paperwork Reduction Act of 1995, Public Law 104-13. To allow interested persons to comment on this information collection, the Department is publishing this notice and plans to submit a request for a three-year extension of OMB's approval. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the Agency reviewer listed below and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11020, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
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(8) Information obtained from the form that qualifies as confidential business information will be so treated by SIGTARP, and not disclosed in a manner that would reveal the individual operations of a TARP recipient.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of one newly-designated entity whose property and interests in property are blocked pursuant to Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism.”
The designation by the Director of OFAC of one entity identified in this notice, pursuant to Executive Order 13224, is effective on
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On September 23, 2001, the President issued Executive Order 13224 (the “Order”) pursuant to the International Emergency Economic Powers Act, 50 U.S.C. 1701-1706, and the United Nations Participation Act of 1945, 22 U.S.C. 287c. In the Order, the President declared a national emergency to address grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the September 11, 2001, terrorist attacks in New York, Pennsylvania, and at the Pentagon. The Order imposes economic sanctions on persons who have committed, pose a significant risk of committing, or support acts of terrorism. The President identified in the Annex to the Order, as amended by Executive Order 13268 of July 2, 2002, 13 individuals and 16 entities as subject to the economic sanctions. The Order was further amended by Executive Order 13284 of January 23, 2003, to reflect the creation of the Department of Homeland Security.
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in or hereafter come within the United States or the possession or control of United States persons, of: (1) Foreign persons listed in the Annex to the Order; (2) foreign persons determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of the Department of Homeland Security and the Attorney General, to have committed, or to pose
The designee is as follows:
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
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 take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8508, Request for Waiver From Filing Information Returns Electronically (Forms W-2, W-2G, 1042-S, 1098 Series, 1099 Series, 5498 Series, and 8027).
Written comments should be received on or before April 13, 2009 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Carolyn N. Brown, (202) 622-6688 at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Approved: January 23, 2009.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
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 take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13(44 U.S.C. 3506(c)(2)(A)).
Currently, the IRS is soliciting comments concerning an existing final regulation, EE-28-78 (TD 7845), Inspection of Applications for Tax Exemption and Applications for Determination Letters for Pension and Other Plans (§§ 301.6104(a)-1, 301.6104(a)-5, 301.6104(a)-6, 301.6104(b)-1 and 301.6104(c)-1.
Written comments should be received on or before April 13, 2009 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Carolyn N. Brown at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-6688, or through the Internet at (
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
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 take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 5452, Corporate Report of Nondividend Distributions.
Written comments should be received on or before April 13, 2009 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Carolyn N. Brown at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-6688, or through the Internet at (
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Final regulations and removal of temporary regulations.
This document contains final regulations under section 367(a) of the Internal Revenue Code (Code) concerning gain recognition agreements filed by United States persons with respect to transfers of stock or securities to foreign corporations. The regulations finalize temporary regulations published on February 5, 2007 (TD 9311). The regulations primarily affect United States persons that transfer (or have transferred) stock or securities to foreign corporations and that will enter (or have entered) into a gain recognition agreement with respect to such a transfer.
Send submissions to: CC:PA:LPD:PR (REG-147144-06), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-147144-06), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
S. James Hawes, (202) 622-3860 (not a toll-free number).
The collections of information in these regulations have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-2056.
The collections of information in these final regulations are in § 1.367(a)-8(d), (g), (k), and (o). Responses to the collections of information are required to avoid recognizing gain under an existing gain recognition agreement and to facilitate electronic filing. The regulations also require the amount of any gain recognized under a gain recognition agreement and applicable interest due with respect to any additional tax due with respect to such gain to be reflected on a schedule included with the electronically-filed return of the taxpayer.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection of information displays a valid control number.
Books and records relating to these collections of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
On February 5, 2007, the IRS and Treasury Department issued temporary and proposed regulations under section 367(a) concerning the terms and conditions for a gain recognition agreement (GRA) filed by a United States person (the U.S. transferor) in connection with a transfer of stock or securities to a foreign corporation (transferee foreign corporation) and the impact of certain transactions on an existing GRA (the 2007 regulations). 72 FR 5184 (T.D. 9311) (2007-10 IRB 635). No public hearing on the 2007 regulations was requested or held; however, numerous comments were received. After considering the comments received, the IRS and Treasury Department adopt the 2007 regulations, with modifications, as final regulations under section 367(a). This Treasury decision also removes the temporary regulations and revises cross-references where appropriate to reflect the removal and replacement of the temporary regulations with final regulations.
The 2007 regulations provide specific exceptions for certain dispositions or other events that would otherwise require gain to be recognized under an existing GRA (triggering event). The exceptions generally apply to dispositions that qualify for nonrecognition treatment under the Code and require the U.S. transferor to enter into a new GRA with respect to the initial transfer for the remaining term of the existing GRA.
Several commentators asserted that the exceptions provided by the 2007 regulations did not literally apply to various dispositions qualifying for nonrecognition treatment because the entity making the transfer is not described in the relevant exception, thus inappropriately resulting in gain recognition under a GRA. For example, assume that in year 1 a domestic corporation, USP, transfers stock of a foreign corporation, FS1, to another foreign corporation, FS2, pursuant to an exchange to which section 351 applies (the initial transfer). USP files a GRA with respect to the initial transfer. In year 2, FS2 transfers the FS1 stock received from USP in year 1 to another foreign corporation, FS3, solely in exchange for stock of FS3 under section 351. The year 2 transfer of the FS1 stock by FS2 would constitute a triggering event for purposes of the GRA filed by USP with respect to the initial transfer, but the transfer qualifies for an exception under the 2007 regulations. USP complies with the requirements of the 2007 regulations with respect to the GRA filed for the initial transfer. In year 3, FS3 contributes the FS1 stock received from FS2 in year 2 to another foreign corporation, FS4, solely in exchange for stock of FS4 under section 351. The year 3 transfer of the FS1 stock by FS3 is a triggering event with respect to the GRA entered into by USP in connection with the initial transfer.
The 2007 regulations provide an exception for certain subsequent transfers of the transferred stock in a transaction to which section 351 applies (section 351 exchange), but the exception does not clearly apply when the transferor in the section 351 exchange is not the transferee foreign corporation. Commentators expressed similar concerns with respect to other nonrecognition transactions, including liquidations described in section 332 (section 332 liquidation), transactions to which section 355 applies (section 355 transactions), and transactions involving partnerships. The commentators suggested various alternatives for avoiding the inappropriate triggering of a GRA in such cases.
The IRS and Treasury Department agree that certain nonrecognition transactions that may not qualify for an exception under the 2007 regulations should not trigger an existing GRA. Because specific exceptions provide certainty to the relevant transactions,
The general exception provided by the final regulations applies generally to any disposition or other event that would otherwise constitute a triggering event if the disposition is a nonrecognition transaction (as defined in section 7701(a)(45), but including an exchange described in section 351(b) or 356 even if all gain realized is recognized); a U.S. transferor retains a direct or indirect interest in the transferred stock or securities (or the assets of the transferred corporation, such as where the transferred corporation has liquidated in the interim); and the U.S. transferor that retains such direct or indirect interest enters into a new GRA with respect to the initial transfer. However, if, as a result of the disposition or other event, a foreign corporation acquires all or part of the transferred stock or securities (or substantially all the assets of the transferred corporation) the general exception shall apply only if the U.S. transferor owns at least five percent (applying the attribution rules of section 318, as modified by section 958(b)) of the total voting power and the total value of the outstanding stock of such foreign corporation immediately after the disposition or other event. This five percent ownership condition is intended to limit the application of the general exception in transactions where the U.S. transferor retains a minimal interest in the transferred stock or securities (or substantially all the assets of the transferred corporation). The final regulations include examples to illustrate the application of the general exception.
A disposition or other event to which the general exception applies shall be subject to the provisions of the final regulations to the same extent and in the same manner as a disposition or event to which a specific exception applies. For example, even though a specific exception is generally available for a section 351 exchange of the transferred stock by the transferee foreign corporation, the U.S. transferor must still recognize gain under the existing GRA to the extent the transferee foreign corporation would otherwise recognize gain in the exchange under section 351(b). The U.S. transferor must therefore similarly recognize gain in connection with a disposition or other event to which the general exception applies to the extent that the transferee foreign corporation would otherwise recognize gain in the exchange under section 351(b).
A new GRA filed under the general exception is generally subject to the same terms and conditions as the existing GRA, but must also describe the subsequent dispositions that would constitute triggering events (based on the principles of the final regulations, but not including any triggering event otherwise described in the final regulations) and include a statement that the U.S. transferor agrees to treat such dispositions as triggering events. In addition, the final regulations provide that, with respect to a new GRA filed under the general exception, a triggering event shall also include any other disposition or event that is inconsistent with the principles of the triggering event exceptions including, for example, an indirect disposition of the transferred stock or securities or of substantially all of the assets of the transferred corporation. This additional condition is similar to the condition applicable to a GRA filed in connection with an indirect stock transfer described in § 1.367(a)-3(d).
One commentator requested that an exception be provided for a securities lending transaction to which section 1058 applies. The final regulations do not provide such an exception.
Under the 2007 regulations, a complete or partial disposition by the U.S. transferor of the stock of the transferee foreign corporation received in the initial transfer generally requires the U.S. transferor to recognize gain under the GRA. Exceptions to this general rule are provided for certain nonrecognition transfers to which sections 351, 354, or 721 applies. As described further in part D. of this Preamble, the 2007 regulations provide further that a GRA shall instead terminate (in whole or in part) if the U.S. transferor disposes of all or part of the stock of the transferee foreign corporation received in the initial transfer pursuant to a transaction in which all gain realized is recognized currently and included in taxable income as a result of the disposition, but only if the basis of the stock disposed of (excluding certain adjustments to such basis) is not greater than the basis in the transferred stock or securities at the time of the initial transfer.
If the U.S. transferor disposes of stock of the transferee foreign corporation pursuant to an intercompany transaction (within the meaning of § 1.1502-13) that is not described in section 351 or 354, the conditions for terminating the existing GRA (in whole or in part) are not satisfied because, under the provisions of § 1.1502-13, the U.S. transferor generally defers taking into account any gain realized and recognized on the disposition. Thus, such a disposition would be a triggering event.
Several commentators asserted that it is inappropriate to require the U.S. transferor to recognize gain under the GRA in such cases because the stock of the transferee foreign corporation remains within the consolidated group of which the U.S. transferor is a member. It is also inappropriate to terminate the GRA because the intercompany item has not been taken into account. Instead, the commentators recommended that the GRA remain in effect for its remaining term. The IRS and Treasury Department agree with this recommendation, and the final regulations provide a specific exception for dispositions of stock of the transferee foreign corporation pursuant to an intercompany transaction (intercompany transaction exception) to which a specific triggering event exception does not apply. If the intercompany transaction exception applies, the U.S. transferor remains subject to the existing GRA. But see the discussion below when the intercompany transaction is a nonrecognition transaction in which an amount of gain is recognized.
The intercompany transaction exception is available if two conditions are satisfied. The first condition is that the basis of the stock of the transferee foreign corporation disposed of in the intercompany transaction is not greater than the sum of the aggregate basis in the transferred stock or securities at the time of the initial transfer, any increase to the basis of the transferred stock or securities by reason of gain recognized by the U.S. transferor in connection with the initial transfer, and any increase to the basis of the stock of the transferee foreign corporation by reason of income inclusions by the U.S. transferor (for example, pursuant to section 961). To satisfy this basis condition, the U.S. transferor can elect to reduce the basis of the stock of the transferee foreign corporation, effective
The second condition is that the annual certification filed with respect to the existing GRA for the taxable year during which the intercompany transaction occurs includes a complete description of the intercompany transaction and a schedule illustrating how the basis condition is satisfied.
Because the final regulations provide specific exceptions for certain nonrecognition transfers of stock of the transferee foreign corporation (for example, pursuant to a section 351 exchange), the new intercompany transaction exception applies only to the extent the intercompany transaction gives rise to an intercompany item (as defined in § 1.1502-13(b)(2)). If the intercompany item is a gain, the existing GRA must be divided into two separate agreements—one that remains with the U.S. transferor (of an amount equal to the intercompany item) and another that moves to the acquiring member (of an amount equal to the remaining amount of the existing GRA amount). For example, assume the amount of the existing GRA is $100x, the intercompany transaction is described in section 351(b), and the U.S. transferor recognizes $20x gain (the intercompany item) in the intercompany transaction. The intercompany transaction exception applies to the extent of the $20x intercompany item, and the exception for section 351 exchanges applies to the remainder of the transfer. Thus, the U.S. transferor remains subject to a $20x GRA (to the extent of the $20x intercompany item), and the acquiring member becomes subject to an $80x GRA. This result is similar to that of a transfer of the stock of the transferee foreign corporation to a domestic acquiring corporation in a section 351 exchange that is not an intercompany transaction but in which the U.S. transferor recognizes gain under section 351(b). In such a case, the amount of the new GRA entered into by the domestic acquiring corporation is reduced by the amount of gain recognized by the U.S. transferor on the transfer under section 351(b). The U.S. transferor does not remain subject to a GRA because the gain recognized under section 351(b) is taken into account. By contrast, if the section 351 exchange were an intercompany transaction, the U.S. transferor must remain subject to a GRA in an amount equal to the gain recognized under section 351(b) because the gain has not been taken into account.
If the intercompany item is a loss, however, the U.S. transferor shall remain subject to the entire GRA. In addition, in such a case, the termination rule that applies to dispositions of the stock of the transferee foreign corporation in which all realized gain is recognized and included in taxable income during the taxable year of the disposition shall not apply.
The final regulations provide rules to coordinate the subsequent inclusion in taxable income of an intercompany item and an amount of gain recognized under the GRA. Generally, under the coordination rule, if subsequent to an intercompany transaction to which the intercompany transaction exception applies, a disposition or other event occurs that requires the U.S. transferor to take into account the intercompany item related to the intercompany transaction (under the provisions of § 1.1502-13), the disposition shall not constitute a triggering event. Instead the GRA shall terminate without further effect or the amount of gain subject to the GRA shall be reduced based on the principles of the termination rule that applies to certain dispositions of the stock of the transferee foreign corporation received in the initial transfer. The final regulations include an example illustrating this rule.
The preamble to the 2007 regulations requested comments concerning whether specific exceptions should be provided for divisive reorganizations involving the U.S. transferor, the transferee foreign corporation, or the transferred corporation. No comments were received. However, the final regulations provide a specific exception for divisive reorganizations involving a transfer of the stock of the transferee foreign corporation received in the initial transfer to a domestic corporation (domestic controlled corporation) before the distribution of the stock of the domestic controlled corporation. The specific exception applies if the domestic controlled corporation enters into a new GRA with respect to the initial transfer. The IRS and Treasury Department expect the general exception to apply to other divisive reorganizations, as appropriate. The final regulations include examples illustrating the application of the general exception to divisive reorganizations.
If certain conditions are met, under the 2007 regulations an existing GRA terminates without further effect (termination rule) if the U.S. transferor (or other specified United States persons) re-acquires the transferred stock or securities, or the U.S. transferor disposes of the stock of the transferee foreign corporation received in the initial transfer. One condition for the application of the termination rule is that, with certain adjustments, the basis of the transferred stock or securities in the hands of the U.S. transferor (or other specified United States person) immediately following the acquisition or the basis of stock of the transferee foreign corporation disposed of by the U.S. transferor, as relevant, must not be greater than the basis of the transferred stock or securities at the time of the initial transfer. To satisfy this basis condition, the 2007 regulations generally permit the U.S. transferor (or other United States person) to reduce the basis of the transferred stock or securities (or the stock of the transferee foreign corporation, as applicable). The 2007 regulations further permit an increase to basis of other stock or securities in the transferred corporation (or stock of the transferee foreign corporation, as applicable) by a corresponding amount, but not in excess of fair market value.
The final regulations retain the termination rule and the conditions for its application, including the option to reduce basis. However, the IRS and Treasury Department have determined that it is inappropriate to permit the shifting of basis to other stock or securities in the case of an election to reduce the basis of stock or securities. The final regulations, therefore, do not permit the U.S. transferor (or other United States person) to increase the basis of other stock or securities of the transferred corporation (or stock of the transferee foreign corporation, as applicable). The general exception, however, may apply allowing the U.S. transferor (or other United States person) to enter into a new GRA in connection with a transaction in which the transferred stock or securities are re-acquired in lieu of reducing the basis of the transferred stock or securities.
One commentator questioned whether the termination rule applies in the case of a downstream asset reorganization of the transferee foreign corporation into the transferred corporation because the U.S. transferor receives newly-issued stock of the transferred corporation in the transaction and not the stock transferred in the initial transfer. The IRS and Treasury Department believe it is appropriate for the termination rule to apply in the case of such downstream asset reorganizations. Accordingly, by revising the location of a rule contained in the 2007 regulations, the final regulations clarify that the term
The 2007 regulations provide an exception for certain expropriation losses that would otherwise constitute triggering events. The final regulations modify the rule to provide instead that the amount of gain subject to a GRA is reduced to the extent a loss is sustained with respect to stock of the transferee foreign corporation, the transferred stock or securities, or substantially all the assets of the transferred corporation by reason of an expropriation of such property by the government of a foreign country, any political subdivision thereof, or any agency or instrumentality of the foregoing.
The 2007 regulations provide an exception for a transfer of stock of the transferee foreign corporation by the U.S. transferor to a domestic corporation pursuant to an asset reorganization described in section 368(a)(1). See § 1.367(a)-8T(e)(3)(i). The preamble to the 2007 regulations requested comments concerning whether an exception should also be provided for an outbound transfer of the stock of the transferee foreign corporation by the U.S. transferor to a foreign corporation pursuant to an asset reorganization described in section 368(a)(1). No comments were received. However, after studying the issue further and considering the principles of the proposed regulations recently issued under sections 367(a)(5), 367(b), and 1248(f) (73 FR 49278), the IRS and Treasury Department have determined that it is appropriate for an exception to apply to such an outbound transfer. The final regulations do not include a specific exception for such outbound transfers, but the IRS and Treasury Department expect the general exception provided by the final regulations to apply to such transfers, as appropriate. The final regulations include an example illustrating the application of the general exception to such a transfer.
The final regulations provide an ordering rule to determine the amount of gain recognized under a GRA when a disposition or other event requires gain to be recognized under more than one GRA. The ordering rule adopts a “first-in-time” approach, providing that gain must first be recognized under the GRA that relates to the earliest initial transfer, then under the GRA that relates to the transfer immediately following the initial transfer, and so forth until the appropriate amount of gain under each GRA has been recognized. This ordering rule clarifies that the gain recognized under a GRA is determined after taking into account any increase to the basis of the transferred stock or securities resulting from gain recognized under another GRA that relates to an earlier initial transfer. The final regulations include an example to illustrate the ordering rule.
The 2007 regulations define a disposition as any transfer that would constitute a disposition for any purpose of the Code and the regulations under the Code, but exclude a stock redemption described under section 302(d) (dividend equivalent redemption) to the extent section 301(c)(1) applies. One commentator requested that the final regulations clarify whether the rule for dividend equivalent redemptions applies to redemptions of stock of the transferee foreign corporation, the transferred corporation, or both. The commentator also requested that the final regulations confirm that a distribution of property to which section 301(c)(2) applies (including in the case of a dividend equivalent redemption) does not constitute a disposition of the relevant stock.
The final regulations provide that a disposition generally does not include the receipt of a distribution of property with respect to stock to which section 301 applies, including by reason of section 302(d). The final regulations provide further that a dividend equivalent redemption shall constitute a disposition if the U.S. transferor does not enter into a new GRA that includes appropriate provisions to account for the redemption. The final regulations include an example illustrating this rule and describing the types of appropriate provisions that should be included in the new GRA. The provisions to be included in the GRA are necessary, for example, to account for a dividend equivalent redemption that occurs pursuant to a transaction to which section 304(a)(1) applies and in which the transferor does not retain a direct or indirect interest in the acquiring corporation. In such a case, the GRA would need to provide appropriate provisions to account for indirect dispositions of the transferred stock that should require gain to be recognized under the new GRA.
The final regulations provide that the U.S. transferor must recognize gain under a GRA to the extent gain is recognized under section 301(c)(3) with respect to the transferred stock and that the amount of gain subject to the GRA is reduced to the extent the U.S. transferor recognizes gain under section 301(c)(3) with respect to the stock of the transferee foreign corporation received in the initial transfer.
One commentator requested that the final regulations provide an exception for a deemed sale of the assets of the transferred corporation or the transferee foreign corporation by reason of an election under section 338(g). The commentator posited a fact pattern where the U.S. transferor entered into a GRA in connection with a transfer of less than 20 percent of the outstanding stock of the transferred corporation to the transferee foreign corporation, and, within the GRA term, the transferee foreign corporation acquires additional stock of the transferred corporation constituting a qualified stock purchase (within the meaning of section 338(d)(3)) and makes an election under section 338(g) with respect to such acquisition. The deemed asset sale that results from the section 338(g) election is a sale for all purposes of the Code (see § 1.338-2(c)(6)) and thus, under the 2007 regulations, would require the U.S. transferor to recognize the full amount of gain subject to the GRA. The commentator asserted that providing an exception for such a deemed asset sale was consistent with the policies of the GRA regime because the deemed asset sale is not a monetization of the assets or stock of the transferred corporation.
The IRS and Treasury Department agree with the commentator, and the final regulations provide that a deemed sale of assets of the transferred corporation or the transferee foreign corporation by reason of an election under section 338(g) shall not constitute a triggering event for purposes of the GRA. However, the sale of stock of the target corporation pursuant to the qualified stock purchase shall be taken into account for purposes of a GRA. The sale of stock of the transferred or transferee foreign corporation by the
By contrast, a deemed sale of assets of a domestic corporation by reason of an election under section 338(h)(10) shall continue to be taken into account for purposes of § 1.367(a)-8. Thus, for example, if an election under section 338(h)(10) were made with respect to the U.S. transferor, the deemed sale of the stock of the transferee foreign corporation held by the U.S. transferor would constitute a disposition of such stock that either requires gain to be recognized under the GRA or terminates the GRA if the conditions for the termination rule are satisfied.
On August 22, 2008, the IRS and Treasury Department issued proposed regulations under section 336(e) (REG-143544-04, 2008-42 IRB 947) that provide rules generally consistent with the rules that apply to elections under section 338(h)(10). The proposed regulations under section 336(e) shall be applicable to dispositions occurring on or after the proposed regulations are published as final regulations in the
The 2007 regulations provide that a GRA shall be triggered immediately before the date on which an individual U.S. transferor loses United States citizenship or ceases to be taxed as a lawful permanent resident (as defined in section 877(e)(2)). This rule applies even if the individual U.S. transferor would have recognized gain with respect to the stock of the transferee foreign corporation under section 877. The final regulations generally retain this rule, modified for the enactment of section 877A. Further, the final regulations make clear that the termination rule that applies in certain cases where the U.S. transferor disposes of the stock of the transferee foreign corporation is not applicable to an individual U.S. transferor that is subject to section 877A.
Comments were received regarding whether the information required with a GRA could instead be made available by the U.S. transferor “upon request.” The final regulations confirm that the information required with a GRA must be included with the GRA as filed with the tax return of the U.S. transferor.
Under the 2007 regulations, certain dispositions that qualify for an exception nonetheless require the U.S. transferor to recognize gain under the existing GRA. For example, to the extent the transferee foreign corporation would be required to recognize gain under section 351(b) or 356(a)(1) in connection with an exchange of the transferred stock, the U.S. transferor must recognize gain under the GRA notwithstanding that an exception applies to the exchange of the transferred stock. The final regulations retain this rule; however, the final regulations refer to any disposition or event that requires gain to be recognized under a GRA as a “gain recognition event.” A gain recognition event includes a triggering event, a disposition that would constitute a triggering event but for the application of an exception (such as the section 351(b) or 356 exchange described above), and a section 301 distribution that would require gain to be recognized under section 301(c)(3) with respect to the transferred stock.
The final regulations clarify the amount of gain subject to a GRA that is filed by a domestic corporate shareholder of a domestic corporation (the U.S. transferor) that transfers stock or securities to the transferee foreign corporation pursuant to an outbound asset reorganization that is subject to section 367(a)(5) and the regulations under that section.
The final regulations clarify that, if a GRA is entered into in connection with a transfer of a partnership interest, a complete or partial disposition of such partnership interest shall constitute a triggering event for purposes of the GRA.
The 2007 regulations provide exceptions for certain dispositions of stock of the transferee foreign corporation or of substantially all the assets of the transferred corporation that are described in section 351, 354 (but only in the case of a reorganization described in section 368(a)(1)(B)), or 721, if, in addition to other requirements, the U.S. transferor complies with requirements similar to those for the exception that applies to similar dispositions of the transferred stock or securities. See § 1.367(a)-8T(e)(1)(ii). In response to comments requesting certainty concerning the requirements that must be satisfied, the final regulations identify the specific requirements that must be satisfied with respect to such dispositions.
The 2007 regulations provide that, if the transferred corporation is domestic and at the time of the initial transfer the U.S. transferor owned stock in the transferred corporation satisfying the requirements of section 1504(a)(2), the GRA shall terminate without further effect if the transferred corporation disposes of substantially all of its assets in a transaction in which all gain realized is recognized currently. The final regulations retain this termination rule but add, as an additional condition for its application, that the U.S. transferor and the transferred corporation were members of the same consolidated group on the date of the initial transfer. This change was made because the IRS and Treasury Department expect a lesser degree of inside and outside basis disparity within a consolidated group.
The final regulations provide that, if the initial transfer and one or more dispositions or other events (even if an exception applies) that affect the GRA filed by the U.S. transferor with respect to the initial transfer occur within the same taxable year of such U.S. transferor, or if multiple dispositions or events that affect an existing GRA (even if an exception applies) occur in a taxable year of the U.S. transferor that does not include the initial transfer, the U.S. transferor is only required to enter into a single GRA for such taxable year. The GRA must describe the initial transfer and/or each subsequent disposition or other event that affects the GRA. This rule does not apply, however, if a disposition or other event requires a new GRA to be filed by a United States person that was not the U.S. transferor with respect to the existing GRA.
The final regulations provide that the determination of whether a disposition of substantially all of the assets of the transferred corporation has occurred shall be made on the basis of one or more related transactions. The final regulations provide further that the determination shall be made without regard to a disposition of assets described in section 1221(a)(1) in the ordinary course of business.
The final regulations generally apply to transfers of stock or securities occurring on or after March 13, 2009. The final regulations shall not apply to transfers of stock or securities occurring on or after March 13, 2009 that are entered into pursuant to a contract that was binding before February 11, 2009 (subject to customary conditions) and all times thereafter. However, taxpayers may apply the final regulations to such transfers provided the final regulations are applied consistently to all such transfers. Taxpayers may also apply the rules of the final regulations that were not already effective under § 1.367(a)-8 (see 26 CFR part 1, revised April 1, 2006) and § 1.367(a)-8T to any gain recognition agreement filed with respect to a transfer of stock or securities occurring on a date that is before March 13, 2009 and during a taxable year for which the period of limitations on assessments under section 6501(a) of the Code has not closed.
IRS documents cited in this preamble are made available by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
The following publication is obsolete as of February 11, 2009:
Notice 2005-74 (2005-2 CB 726).
It has been determined that this Treasury Decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that 5 U.S.C. 553(b) and (d) do not apply to these regulations.
It is hereby certified that the collections of information contained in these regulations will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. These regulations primarily will affect United States persons that are large corporations engaged in cross-border corporate transactions. Thus, the number of affected small entities—in whichever of the three categories defined in the Regulatory Flexibility Act (small businesses, small organizations, and small governmental jurisdictions)—will not be substantial. The IRS and Treasury Department estimate that small organizations and small governmental jurisdictions are likely to be affected only insofar as they might hold a portfolio interest in stock or securities and in the unlikely event that they transfer such stock or securities to a foreign corporation. While a certain number of small entities may transfer stock or securities to a foreign corporation in connection with an acquisition or reorganization, the IRS and Treasury Department do not anticipate the number to be substantial. Furthermore, the IRS and Treasury Department estimate that those small entities that are affected by the regulations will likely face a burden of approximately two hours at an hourly rate of $200. Considering that the collections of information enable taxpayers to defer the current recognition of gain that is subject to a gain recognition agreement, the IRS and Treasury believe that $400 is not a significant economic impact. Pursuant to section 7805(f) of the Internal Revenue Code, this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal authors of these regulations are Daniel McCall, formerly of the Office of the Associate Chief Counsel (International), and S. James Hawes of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805* * *
(a) * * *
(2) * * * See also § 1.367(a)-8(k)(13) for a rule applicable to gain recognition agreements (filed under §§ 1.367(a)-3(b)(1)(ii) and 1.367(a)-8) and deemed asset sales as a result of an election under section 338(g).
Section 1.367(a)-3(g) is redesignated as follows:
The revisions and addition read as follows:
(d) * * *
(2) * * *
(iv)
(3) * * *
* * *
(ii) * * * Under § 1.367(a)-8(j)(9), the gain recognition agreement would be triggered if F sold all or a portion of the stock of S.
(e)
(i) The conditions set forth in section 367(a)(5) and any regulations under that section have been satisfied including that:
(A) The U.S. transferor is controlled (within the meaning of section 368(c)) by five or fewer (but at least one) domestic corporations (control group members) at the time of the section 361 exchange;
(B) The U.S. transferor recognizes the amount of the gain realized in the section 361 exchange that is allocable to any shareholder that is not a control group member (based on the value of the ownership interest in the U.S. transferor held by the shareholder at the time of the section 361 exchange);
(C) The U.S. transferor recognizes the amount of the gain realized in the section 361 exchange allocable to a control group member that cannot be preserved in the stock received by the control group member in the transaction; and
(D) Appropriate adjustments are made to the basis of the stock received by each control group member in the transaction.
(ii) If the stock or securities transferred in the section 361 exchange are of a domestic corporation, the conditions in paragraphs (c)(1)(i), (ii), and (iv) of this section are satisfied.
(iii) Each control group member that owns five percent or more (applying the attribution rules of section 318, as modified by section 958(b)) of the total voting power or the total fair market value of the stock of the transferee foreign corporation immediately after the transaction enters into a gain recognition agreement as provided in § 1.367(a)-8. The amount of gain subject to the gain recognition agreement shall equal the amount of the gain realized by the U.S. transferor on the transfer of the stock or securities in the section 361 exchange that is allocable to such control group member (based on the ownership interest (by value) in the U.S. transferor held by the control group member at the time of the section 361 exchange) reduced by the amount of such allocable gain that is recognized by the U.S. transferor with respect to the control group member. The gain recognition agreement shall designate the control group member as the U.S. transferor for purposes of paragraphs (b) and (c) of this section and § 1.367(a)-8.
(iv) Each control group member that enters into a gain recognition agreement pursuant to paragraph (e)(1)(iii) of this section makes the election described in § 1.367(a)-8(c)(2)(vi).
(2)
(3)
(ii)
(iii)
(iv)
(ii)
(4)
(f) [Reserved].
(g)
(viii)(A) Except as provided in this paragraph (g)(1)(viii), the rules of paragraph (e) of this section apply to transfers of stock or securities occurring on or after March 13, 2009. For matters covered in this section for periods before March 13, 2009, but on or after March 7, 2007, the rules of § 1.367(a)-3T(e) (see 26 CFR part 1, revised April 1, 2007) apply. For matters covered in this section for periods before March 7, 2007, but on or after July 20, 1998, the rule of § 1.367(a)-8(f)(2)(i) (see 26 CFR part 1, revised April 1, 2006) applies.
(B) Taxpayers may apply the rules of § 1.367(a)-3(e) to transfers occurring before March 13, 2009, and during a taxable year for which the period of limitations on assessments under section 6501(a) has not closed, if done consistently to all such transfers occurring during each taxable year. A taxpayer applies the rules of § 1.367(a)-3(e) to transfers occurring before March 13, 2009, and during a taxable year for which the period of limitations on assessments under section 6501(a) has not closed, by including the gain recognition agreement, annual certification, or other information filing, that is required as a result of the rules of § 1.367(a)-3(e) applying to such a transfer, with an amended tax return for the taxable year in which the transfer occurs that is filed on or before
(a)
(b)
(1)
(B)
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(ii)
(iii)
(iv) A
(v) The
(vi) An
(vii) An
(viii) A
(ix) The terms
(x) The determination of whether
(xi) A
(xii)
(xiii)
(xiv) A
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(v)
(2)
(i) A statement that the document constitutes an agreement by the U.S. transferor to recognize gain in accordance with the requirements of this section.
(ii) A description of the transferred stock or securities and other information as required in paragraph (c)(3) of this section.
(iii) A statement that the U.S. transferor agrees to comply with all the conditions and requirements of this section, including to recognize gain under the gain recognition agreement in accordance with paragraph (c)(1)(i) of this section, extend the statute of limitations on assessments of tax as provided in paragraph (f) of this section, and file the certification described in paragraph (g) of this section.
(iv) A statement that arrangements have been made to ensure that the U.S. transferor is informed of any events that affect the gain recognition agreement, including triggering events or other gain recognition events.
(v) In the case of a new gain recognition agreement filed under this section—
(A) A description of the event (such as a triggering event) and the applicable exception, if any, that gave rise to the new gain recognition agreement (such as a triggering event exception), including the date of the event and the name, address, and taxpayer identification number (if any) of each person that is a party to the event;
(B) As applicable, a description of the class, amount, and characteristics of the
(C) As applicable, a calculation of the amount of gain that remains subject to the new gain recognition agreement as a result of the application of paragraph (m), (n), or (o) of this section.
(vi) A statement whether the U.S. transferor elects to include in income any gain recognized under paragraph (c)(1)(i) of this section in the taxable year during which a gain recognition event occurs. See paragraph (c)(5)(ii) of this section for a rule that requires, in certain cases, for the gain recognized pursuant to a new gain recognition agreement to be included in income during the taxable year in which the gain recognition event occurs.
(vii) A statement whether a gain recognition event has occurred during the taxable year of the initial transfer.
(viii) A statement describing any disposition of assets of the transferred corporation during such taxable year other than in the ordinary course of business.
(3)
(i) A description of the transferred stock or securities including—
(A) The type or class, amount, and characteristics of the transferred stock or securities;
(B) A calculation of the amount of the built-in gain in the transferred stock or securities that are subject to the gain recognition agreement, reflecting the basis and fair market value on the date of the initial transfer;
(C) The amount of any gain recognized by the U.S. transferor on the initial transfer; and
(D) The percentage (by voting power and value) that the transferred stock (if any) represents of the total stock outstanding of the transferred corporation on the date of the initial transfer.
(ii) The name, address, place of incorporation, and taxpayer identification number (if any) of the transferred corporation.
(iii) The date on which the U.S. transferor acquired the transferred stock or securities.
(iv) The name, address and place of incorporation of the transferee foreign corporation, and a description of the stock or securities received by the U.S. transferor in the initial transfer, including the percentage of stock (by vote and value) of the transferee foreign corporation received in such exchange.
(v) If the initial transfer is described in § 1.367(a)-3(e), a statement that the conditions of section 367(a)(5) and any regulations under that section have been satisfied, and a description of any adjustments to the basis of the stock received in the transaction or other adjustments made pursuant to section 367(a)(5) and any regulations under that section.
(vi) If the transferred corporation is domestic, a statement describing the application of section 7874 to the transaction, and indicating that the requirements of § 1.367(a)-3(c)(1) are satisfied.
(vii) If the transferred corporation is foreign, a statement indicating whether the U.S. transferor was a section 1248 shareholder (as defined in § 1.367(b)-2(b)) of the transferred corporation immediately before the initial transfer, and whether the U.S. transferor is a section 1248 shareholder with respect to the transferee foreign corporation immediately after the initial transfer, and whether any reporting requirements or other rules contained in regulations under section 367(b) are applicable, and, if so, whether they have been satisfied.
(viii) If the initial transfer involves a transfer by a partnership (see § 1.367(a)-1T(c)(3)(i)) or a transfer of a partnership interest (see section 367(a)(4) and § 1.367(a)-1T(c)(3)(ii)) a complete description of the transfer, including a description of the partners in the partnership.
(ix) If the transaction involved the transfer of property other than the transferred stock or securities and the transaction was subject to the indirect stock transfer rules of § 1.367(a)-3(d), a statement indicating whether—
(A) The reporting requirements under section 6038B have been satisfied with respect to the transfer of such other property;
(B) Whether gain was recognized under section 367(a)(1);
(C) Whether section 367(d) applied to the transfer of such property; and
(D) Whether the other property transferred qualified for the active foreign trade or business exception under section 367(a)(3).
(4)
(i)
(ii)
(iii)
(iv)
(5)
(ii)
(d)
(2)
(ii)
(3)
(e)
(i) If the U.S. transferor is a corporation but not a member of a consolidated group, a responsible officer of the U.S. transferor. If the U.S. transferor is a member of a consolidated group, a responsible officer of the common parent of the consolidated group.
(ii) If the U.S. transferor is an individual, the individual.
(iii) If the U.S. transferor is a trust or estate, a trustee, executor, or equivalent fiduciary of the U.S. transferor.
(iv) In a bankruptcy case under Title 11, United States Code, a debtor in possession or trustee.
(2)
(f)
(2)
(g)
(1) A statement of whether a gain recognition event has or has not occurred during such taxable year. If a gain recognition event has occurred during such taxable year, the annual certification must state:
(i) The amount of gain subject to the gain recognition agreement at the time of the gain recognition event;
(ii) The amount of gain recognized under the gain recognition agreement by reason of the gain recognition event; and
(iii) A calculation of the reduction to the amount of gain subject to the gain recognition agreement by reason of the gain recognition event (for example, in the case of a gain recognition event described in paragraph (n)(2) of this section).
(2) A complete description of any event occurring during such taxable year that has terminated or reduced the amount of gain subject to the gain recognition agreement (for example, an event described in paragraph (o) of this section), including a calculation of any reduction to the amount of gain subject to the gain recognition agreement.
(3) A statement describing any disposition of assets of the transferred corporation during the taxable year not in the ordinary course of business.
(h)
(i) [Reserved.]
(j)
(1)
(2)
(ii)
(A) Dispositions of property described in section 1221(a)(1) occurring in the ordinary course of business;
(B) An exchange of stock or securities described in section 354 that is pursuant to an asset reorganization; and
(C) An exchange of stock by a corporate distributee (as defined in section 334(b)(2)) pursuant to a complete liquidation to which section 332 applies.
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(i) Any disposition or other event identified as a triggering event in a new gain recognition agreement as required under paragraph (k)(14)(iii) of this section; and
(ii) Any disposition or other event that is inconsistent with the principles of paragraph (k) of this section including, for example, an indirect disposition of the transferred stock or securities.
(k)
(1)
(i) In the case of an exchange to which section 351 or 354 applies in which stock of a foreign acquiring corporation is received, the U.S. transferor includes with the new gain recognition agreement a statement that a complete or partial disposition of the stock of the foreign acquiring corporation received in the exchange shall constitute a triggering event. The principles of paragraph (o)(1)(i) or (ii), as appropriate, shall be applied to determine whether a subsequent complete or partial disposition of the stock of the foreign acquiring corporation received in the exchange shall instead terminate or reduce the amount of the new gain recognition agreement.
(ii) In the case of an exchange to which section 351 or 354 applies in which stock of a domestic acquiring corporation is received, the domestic acquiring corporation enters into the new gain recognition agreement, which must designate the domestic acquiring corporation as the U.S. transferor for purposes of this section. For an illustration of the rule provided by this paragraph (k)(1)(ii), see paragraph (q)(2) of this section,
(iii) In the case of a section 361 exchange that is pursuant to a divisive reorganization to which section 355 applies and in which stock of a domestic corporation (domestic controlled corporation) is received, the domestic controlled corporation enters into the new gain recognition agreement, which must designate the domestic controlled corporation as the U.S. transferor for purposes of this section. For an illustration of the rule provided by this paragraph (k)(1)(iii), see paragraph (q)(2) of this section,
(iv) In the case of an exchange to which section 721 applies, the U.S. transferor includes with the new gain recognition agreement a statement that a complete or partial disposition of the partnership interest received in the exchange shall constitute a triggering event for purposes of the new gain recognition agreement.
(2)
(3)
(i) A complete or partial disposition of the stock, securities, or partnership interest (as applicable) received in exchange for the transferred stock or securities.
(ii) Any other event that is inconsistent with the principles of this paragraph (k), including the indirect disposition of the transferred stock or securities.
(4)
(5)
(6)
(ii)
(iii)
(7)
(A) If P is foreign, the new gain recognition agreement designates P as the transferee foreign corporation and includes a statement that the U.S. transferor agrees to treat a complete or partial disposition of the S stock held by P as a triggering event.
(B) Except as provided in paragraph (k)(7)(i)(C) of this section, if P is domestic, P enters into the new gain recognition agreement that designates P as the U.S. transferor and S as the transferee foreign corporation.
(C) If the triangular asset reorganization is described in section 368(a)(1)(A) by reason of section 368(a)(2)(E) and the transferee foreign corporation is the merged corporation, the U.S. transferor enters into the new gain recognition agreement and designates the surviving corporation as the transferee foreign corporation.
(ii)
(A) The new gain recognition agreement includes a statement that the U.S. transferor agrees to treat a complete or partial disposition of the P stock received in the reorganization as a triggering event.
(B) If the triangular asset reorganization is described in section 368(a)(1)(C), or section 368(a)(1)(A) or (G) by reason of section 368(a)(2)(D), the new gain recognition agreement includes a statement that the U.S. transferor agrees to treat a complete or partial disposition of the S stock held by P as a triggering event.
(C) If the triangular asset reorganization is described in section 368(a)(1)(A) by reason of section 368(a)(2)(E) and the transferred corporation is the merged corporation, the new gain recognition agreement includes a statement that the U.S. transferor agrees to treat a complete or partial disposition of the stock of the surviving corporation as a triggering event.
(8)
(9)
(i) Retains sufficient assets of the U.S. transferor to satisfy any possible Federal tax liability of the U.S. transferor under the gain recognition agreement for the duration of the extended period of limitations on assessments of tax on the gain realized but not recognized in the initial transfer;
(ii) Provides security as required under paragraph (h) of this section for any possible Federal tax liability of the U.S. transferor under the gain recognition agreement; or
(iii) Obtains a ruling from the Internal Revenue Service providing for one or more successors to the U.S. transferor under the gain recognition agreement.
(10)
(11)
(12)
(A) At the time of the disposition, the basis of the stock of the transferee foreign corporation received in the initial transfer that is disposed of in the intercompany transaction is not greater than the sum of the amounts described in paragraphs (k)(12)(i)(A)(
(
(
(
(B) The annual certification filed with respect to the existing gain recognition agreement for the taxable year during which the intercompany transaction occurs includes a complete description of the intercompany transaction and a schedule illustrating how the basis condition of paragraph (k)(12)(i)(A) of this section is satisfied.
(ii)
(A) The stock is transferred to a member of the consolidated group that includes the U.S. transferor immediately after the disposition, and
(B) The annual certification filed with respect to the existing gain recognition agreement for the taxable year during which the subsequent disposition occurs includes a complete description of the disposition.
(13)
(14)
(i) The disposition qualifies as a nonrecognition transaction.
(ii) Immediately after the disposition or other event, a U.S. transferor retains a direct or indirect interest in the transferred stock or securities or, as applicable, in substantially all of the assets of the transferred corporation (for example, in a case where the transferred corporation has been liquidated pursuant to section 332). If, as a result of the disposition or other event, a foreign corporation acquires the transferred stock or securities or, as applicable, substantially all the assets of the transferred corporation, the condition of this paragraph (k)(14)(ii) shall be satisfied only if the U.S. transferor owns at least five percent (applying the attribution rules of section 318, as modified by section 958(b)) of the total voting power and the total value of the outstanding stock of such foreign corporation.
(iii) A new gain recognition agreement is entered into by the U.S. transferor described in paragraph (k)(14)(ii) of this section that includes—
(A) An explanation of why this paragraph (k)(14) applies to the disposition or other event; and
(B) A description of each subsequent disposition or other event that would constitute a triggering event, other than those described in paragraph (j) of this section, with respect to the new gain recognition agreement based on the principles of paragraphs (j) and (k) of this section including, for example, an indirect disposition of the transferred stock or securities.
(l) [Reserved.]
(m)
(2)
(n)
(2)
(o)
(1)
(A) The aggregate basis of the transferred stock or securities at the time of the initial transfer;
(B) The amount of any increase to the basis of the transferred stock or securities by reason of gain recognized by the U.S. transferor on the initial transfer; and
(C) The amount of any increase to the basis of the stock disposed of by reason of an income inclusion by the U.S. transferor with respect to such stock (for example, pursuant to section 961(a)).
(ii)
(iii)
(A) A description, including the date, of the disposition;
(B) A description of the stock of the transferee foreign corporation disposed of and the basis adjustments made under this paragraph (o)(1)(iii); and
(C) The fair market value of all the stock of the transferee foreign corporation held by the U.S. transferor at the time of the disposition.
(2)
(3)
(4)
(5)
(i)
(A) A distribution described in section 337 that is pursuant to a complete liquidation described in
(B) A distribution to which section 355 applies. See paragraph (q)(2) of this section,
(C) A section 361 exchange that is pursuant to an asset reorganization. See paragraph (q)(2) of this section,
(D) A distribution to which section 361(c) applies that is pursuant to an asset reorganization. See paragraph (q)(2) of this section,
(ii)
(A) The U.S. transferor;
(B) A member of the consolidated group that includes the U.S. transferor immediately after the transaction; or
(C) An individual that is a United States person.
(iii)
(B)
(
(
(
(6)
(7)
(p)
(2)
(ii)
(A) If any taxable year of the U.S. transferor is under examination when the amended return is filed, a copy of the amended return and any information required to be included with such return must be delivered to the Internal Revenue Service personnel conducting the examination.
(B) If no taxable year of the U.S. transferor is under examination when the amended return is filed, a copy of
(q)
(i) UST, USP, and DC are domestic corporations that each use a calendar taxable year.
(ii) USP wholly owns UST and is the common parent of the consolidated group of which UST is a member.
(iii) TFC, TFD, F1, and FA are foreign corporations.
(iv) UST wholly owns TFD.
(v) In a section 351 exchange, UST transfers all of the stock of TFD (TFD stock) to TFC in exchange solely for stock of TFC (the initial transfer).
(vi) Pursuant to § 1.367(a)-3(b)(1)(ii) and this section, UST enters into a gain recognition agreement in connection with the initial transfer and makes the election described under paragraph (c)(2)(vi) of this section with respect to the gain recognition agreement.
(vii) As applicable, the section 1248 amount (within the meaning of § 1.367(b)-2(c)) or all earnings and profits amount (within the meaning of § 1.367(b)-2(d)) attributable to the stock of a foreign corporation is zero.
(viii) All transactions are respected under general principles of tax law, including the step transaction doctrine.
(ix) References to a U.S. transferor entering into a gain recognition agreement mean, where applicable, that the common parent of the consolidated group of which the U.S. transferor is a member has filed the gain recognition agreement on behalf of the U.S. transferor in accordance with paragraph (d)(3) of this section.
(x) Taxable years during the GRA term are referred to, for example, as year 1 and year 2.
(2)
(ii)
(ii)
(B)
(ii)
(ii)
(B) With respect to the gain recognition agreement filed for the initial transfer of the TFD stock, the transfer by UST of the TFC stock to FA is a triggering event under paragraph (j)(4) of this section. However, the transfer shall not constitute a triggering event if the conditions of the exception provided by paragraph (k)(14) of this section are satisfied.
(
(
(
(ii)
(ii)
(B) Under paragraph (j)(4) of this section, the transfer of the TFC stock by UST to FA is a triggering event with respect to the gain recognition agreement for the initial transfer. The exception provided by paragraph (k)(6)(i) of this section does not apply to such transfer because FA, the acquiring corporation in the asset reorganization, is foreign. However, the transfer shall not constitute a triggering event if the conditions of the exception provided by paragraph (k)(14) of this section are satisfied.
(
(
(
(iii)
(ii)
(ii)
(ii)
(ii)
(A) The condition of paragraph (k)(14)(i) of this section is satisfied because the distribution of the TFD stock, and the exchange of F1 stock, both qualify as nonrecognition transactions.
(B) The condition of paragraph (k)(14)(ii) of this section is satisfied because immediately after the distribution UST, a domestic corporation that is eligible to be a U.S. transferor, owns at least 5% (applying the attribution rules of section 318, as modified by section 958(b)) of the stock of TFC. As a result, UST is treated as retaining an indirect interest in the TFD stock following the complete liquidation of F1.
(C) The condition of paragraph (k)(14)(iii) of this section is satisfied if UST enters into a new gain recognition agreement. Because after the complete liquidation of F1, UST wholly owns TFC, which wholly owns TFD, as was the case immediately after the initial transfer, UST is not required to describe, with the new gain recognition agreement, other dispositions or events that would constitute triggering events based on the principles of paragraph (j) of this section, other than the dispositions or events described in paragraph (j) of this section.
(ii)
(iii)
(ii)
(A) The condition of paragraph (k)(14)(i) of this section is satisfied because the dispositions of the TFD stock and F1 stock qualify as nonrecognition transactions.
(B) The condition of paragraph (k)(14)(ii) of this section is satisfied because immediately after the transfer UST, an eligible U.S. transferor, owns at least 5% (applying the attribution rules of section 318, as modified by section 958(b)) of the total voting power and the total fair market value of the outstanding stock of F1. As a result, UST is treated as retaining an indirect interest in the TFD stock following the dispositions.
(C) The condition of paragraph (k)(14)(iii) of this section is satisfied if UST enters into a new gain recognition agreement with respect to the initial transfer that describes the subsequent dispositions or other events that would constitute triggering events based on the principles of paragraph (j) of this section, other than those described in paragraph (j) of this section. For example, a complete or partial disposition of the F1 stock would constitute a triggering event for purposes of the new gain recognition agreement (subject to the exceptions provided by paragraph (k) of this section).
(ii)
(ii)
(B) Under paragraph (n)(1) of this section, the redemption of the FA stock deemed received by TFC in exchange for the TFD stock shall not constitute a disposition if UST enters into a new gain recognition agreement with respect to the initial transfer that includes appropriate provisions to take into account such redemption. Therefore, under the new gain recognition agreement UST must agree to treat as a triggering event a complete or partial disposition of the stock of FA. Pursuant to paragraph (d)(2)(ii) of this section, UST is permitted to enter into a single new gain recognition agreement in year 3, but the gain recognition agreement must provide a complete description of the section 304(a)(1) transaction including the deemed section 351 exchange and redemption of the FA stock.
(i)
(ii)
(i)
(ii)
(ii)
(B)
(C)
(
(
(
(ii)
(ii)
(ii)
(1) The condition of paragraph (k)(12)(i)(A) of this section is satisfied because the aggregate basis of the TFC stock distributed ($50x) is not greater than the sum of the aggregate basis of the TFD stock at the time of the initial transfer ($50x).
(2) The condition of paragraph (k)(12)(i)(B) of this section is satisfied if the next annual certification for the existing gain recognition agreement includes a complete description of the intercompany transaction and an explanation of how the basis condition of paragraph (k)(12)(i)(A) of this section is satisfied.
(B) Under paragraph (o)(6) of this section and the principles of paragraph (o)(1)(i) of this section, because the year 4 sale of the TFC stock to X requires UST to take into account the $40x gain (the intercompany item) from the year 3 distribution, the year 4 sale terminates the gain recognition agreement. If, alternatively, in year 4 USP had sold only 30% of the TFC stock, then under paragraph (o)(6) of this section and the principles of paragraph (o)(1)(ii) of this section the amount of gain subject to the gain recognition agreement would be reduced by 30%.
(iii)
(iv)
(v)
(vi)
(ii)
(A) The condition of paragraph (k)(14)(i) of this section is satisfied because the transfer of the TFD stock to DC qualifies as a nonrecognition transaction.
(B) The condition of paragraph (k)(14)(ii) of this section is satisfied because immediately
(C) The condition of paragraph (k)(14)(iii) of this section is satisfied if DC enters into a new gain recognition agreement with respect to the initial transfer. Under paragraph (k)(14)(iii)(B) of this section, DC is not required to describe any subsequent dispositions or other events that (based on the principles of paragraph (j) of this section) would constitute triggering events for purposes of the new gain recognition agreement, other than the dispositions or other events described in paragraph (j) of this section, because DC holds a direct interest in TFD after the asset reorganization.
(ii)
(A) The condition of paragraph (o)(5)(i) of this section is satisfied because the transfer of the TFD stock is a section 361 exchange.
(B) The condition of paragraph (o)(5)(ii) of this section is satisfied because DC is a member of the consolidated group that includes UST immediately after the section 361 exchange.
(C) The condition of paragraph (o)(5)(iii) of this section is satisfied because the aggregate basis of the TFD stock immediately after the section 361 exchange is not greater than the aggregate basis of the TFD stock at the time of the initial transfer (as adjusted for any gain recognized by UST on such transfer). If the basis condition of paragraph (o)(5)(iii) were not satisfied, under paragraph (o)(5)(iii) of this section, DC could reduce the basis of the TFD stock received in the reorganization. Alternatively, a new gain recognition agreement could be entered into if paragraph (k)(14) of this section applied to the disposition of the TFD stock pursuant to the section 361 exchange.
(iii)
(A) The condition of paragraph (o)(5)(i) of this section is satisfied because the TFD stock issued by TFD to TFC in the reorganization, which is treated as transferred stock under paragraph (b)(2)(iii) of this section, is distributed by TFC to UST pursuant to section 361(c).
(B) The condition of paragraph (o)(5)(ii) of this section is satisfied because UST is the U.S. transferor.
(C) The condition of paragraph (o)(5)(iii) of this section is satisfied if the aggregate basis of the TFD stock received by UST from TFC is not greater than the aggregate basis of the TFD stock at the time of the initial transfer (as adjusted for any gain recognized by UST on such transfer). If the basis condition of paragraph (o)(5)(iii) were not satisfied, under paragraph (o)(5)(iii) of this section, UST could reduce the basis of the TFD stock received in the reorganization.
(ii)
(A) The condition of paragraph (k)(14)(i) of this section is satisfied because the distribution of the TFD stock qualifies as a nonrecognition transaction.
(B) The condition of paragraph (k)(14)(ii) of this section is satisfied because immediately after the distribution X, a domestic corporation that is eligible to be a U.S. transferor, retains a direct interest in the TFD stock.
(C) The condition of paragraph (k)(14)(iii) of this section is satisfied if X enters into a new gain recognition agreement with respect to the initial transfer. Under paragraph (k)(14)(iii)(B) of this section, X is not required to describe, with the new gain recognition agreement, any subsequent dispositions or other events that (based on the principles of paragraph (j) of this section) would constitute triggering events, other than the dispositions described in paragraph (j) of this section, because X directly owns TFD after the distribution.
(D) If X were a United States citizen, the gain recognition agreement would terminate if the condition of paragraph (o)(5)(iii) of this section were satisfied. Alternatively, the gain recognition agreement would continue for its remaining term if the conditions for the application of paragraph (k)(14) of this section were satisfied.
(iii)
(A) The condition of paragraph (k)(14)(ii) of this section is satisfied because immediately after the distribution DC, a domestic corporation that is eligible to be a U.S. transferor, owns at least 5% (applying the attribution rules of section 318, as modified by section 958(b)) of the total voting power and total value of the outstanding stock of X. As a result, DC is treated as retaining an indirect interest in the TFD stock immediately following the distribution.
(B) The condition of paragraph (k)(14)(iii) of this section is satisfied if DC enters into a new gain recognition agreement with respect to the initial transfer. Under paragraph (k)(14)(iii)(B) of this section, DC must, in addition to the dispositions described in paragraph (j) of this section, include as a triggering event a complete or partial disposition of the stock of X.
(iv)
(ii)
(ii)
(r)
(ii)
(2)
(ii)
(iii)
26 U.S.C. 7805 * * *
(b) * * *
(a) solicit information and ideas from across the country and from all sectors of our economy about the functioning of the economy, the condition of the financial and banking system, and the prosperity of the American people and of American industry that can serve to inform the decisionmaking of the President, and, with respect to matters deemed appropriate by the President, provide information and recommendations to any other agency with responsibilities related to the economy or financial markets or to the National Economic Council;
(b) report directly to the President on the design, implementation, and evaluation of policies to promote the growth of the American economy, establish a stable and sound financial and banking system, create jobs, and improve the long-term prosperity of the American people; and
(c) provide analysis and information with respect to the operation, regulation, and healthy functioning of the economy and of the financial and banking system. As deemed appropriate by the President, this analysis and information shall be provided to the Chairman of the Board of Governors of the Federal Reserve System, to any other agency with responsibilities related to the economy or financial markets, or to the National Economic Council.
(b) The Department of the Treasury shall provide funding and administrative support for the PERAB to the extent permitted by law and within existing appropriations.
(c) Members of the PERAB shall serve without compensation but may receive transportation expenses, including per diem in lieu of subsistence,
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency,or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(b) The use of a project labor agreement may prevent these problems from developing by providing structure and stability to large-scale construction projects, thereby promoting the efficient and expeditious completion of Federal construction contracts. Accordingly, it is the policy of the Federal Government to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects in order to promote economy and efficiency in Federal procurement.
(a) The term “labor organization” as used in this order means a labor organization as defined in 29 U.S.C. 152(5).
(b) The term “construction” as used in this order means construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property.
(c) The term “large-scale construction project” as used in this order means a construction project where the total cost to the Federal Government is $25 million or more.
(d) The term “executive agency” as used in this order has the same meaning as in 5 U.S.C. 105, but excludes the Government Accountability Office.
(e) The term “project labor agreement” as used in this order means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f).
(b) If an executive agency determines under subsection (a) that the use of a project labor agreement will satisfy the criteria in clauses (i) and (ii) of that subsection, the agency may, if appropriate, require that every contractor or subcontractor on the project agree, for that project, to negotiate or become a party to a project labor agreement with one or more appropriate labor organizations.
(a) bind all contractors and subcontractors on the Construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents;
(b) allow all contractors and subcontractors to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;
(c) contain guarantees against strikes, lockouts, and similar job disruptions;
(d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the project labor agreement;
(e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health;and
(f) fully conform to all statutes, regulations, and Executive Orders.
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.