issue-1996-06-14•Federal Register proposed rules — 1996-06-14
Federal Register proposed rules — 1996-06-14
issue-1996-06-14Federal Register proposed rules — 1996-06-14Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-15200 Quizalofop-P Ethyl Ester; Pesticide Tolerance and Maximum Residue Level
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30204-30207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15200]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 180 and 186
[PP5F4545, FAP6H5737/P663; FRL-5375-5]
Quizalofop-P Ethyl Ester; Pesticide Tolerance and Maximum Residue
Level
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to establish a tolerance for the residues of the
herbicide quizalofop (2-[4-(6-chloroquinoxalin-2-yl)oxy)phenoxy])-
propanoic acid], and quizalofop ethyl [ethyl-(2-[4-(6-chloroquinoxalin-
2-yl) oxy)phenoxy)propanoate), all expressed as quizalofop ethyl in or
on the raw agricultural commodity canola seed at 1.0 part per million
(ppm) and to establish a maximum residue limit for quizalofop ethyl on
canola meal at 1.5 ppm. E.I. DuPont de Nemours Company submitted
petitions pursuant to the Federal Food, Drug, and Cosmetic Act (FFDCA)
requesting these regulations to establish certain maximum permissible
residue levels for residues of the herbicide.
DATES: Comments, identified by the docket control number [PP PP5F4545,
FAP6H5737/P663], must be received on or before July 15, 1996.
ADDRESSES: By mail, submit written comments to: Public Response and
Program Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person, bring comments to Rm. 1132, CM #2,
1921 Jefferson-Davis Hwy., Arlington, VA 22202. Comments and data may
also be submitted to OPP by sending electronic mail (e-mail) to: opp-
[email protected]. Electronic comments must be submitted as an
ASCII file avoiding the use of special characters and any form of
encryption. Comments and data will also be accepted on disks in Word
Perfect 5.1 file format or ASCII file format. All comments and data in
electronic form must be identified by the docket number [PP 5F4545, FAP
6H5737/P663]. Electronic comments on this proposed rule may be filed
online at many Federal Depository Libraries. Additional information on
electronic submissions can be found in the ``SUPPLEMENTARY
INFORMATION'' section of this document.
Information submitted as a comment concerning this document may be
claimed confidential by marking any part or all of that information as
``Confidential Business Information'' (CBI). Information so marked will
not be disclosed except in accordance with procedures set forth in 40
CFR part 2. A copy of the comment that does not contain CBI must be
submitted for inclusion in the public record. Information not marked
confidential may be disclosed publicly by EPA without prior notice. All
written comments will be available for public notice. All written
comments will be available for public inspection in Rm. 1132 at the
Virginia address given above, from 8 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: By mail, Robert J. Taylor, Product
Manager (PM-25), Registration Division (7505C), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Office location, telephone number, and e-mail address: Rm.
241, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202, (703)-305-
6027; e-mail: [email protected].
SUPPLEMENTARY INFORMATION: EPA issued notices published in the Federal
Register of February 1, 1996 (61 FR 3696) (FRL-4994-3), which announced
that E.I. Du Pont de Nemours Company, Agricultural Products, Walkers
Mill, Barley Mill Plaza, P.O. Box 80038, Wilmington, DE 19880-0038, had
submitted pesticide petition (PP) 5F4545 to EPA proposing to amend 40
CFR 180.441 by establishing tolerances for residues of the herbicide
quizalof [2-4-(6-chloroquinoxalin-2-yl)oxylphenoxy)propanic acid] and
quizalofop ethyl(ethyl-2-[4,(6-chloroxyunoxalin-2-
yl)oxy)phenoxy]propanonate), all expressed as quizalofop ethyl in or on
foliage of legume vegetables (except soybean) at 3.0 ppm and on canola
seed at 2.0 ppm. DuPont also submitted a
[[Page 30205]]
feed/food additive petition (FAP) 6F5737 proposing to amend 40 CFR
185.5250 by establishing tolerances for the combined residues of the
herbicide quizalof [2-[4-(6-chloroquinoxalin-2-yl)oxylphenyl)propanic
acide] and quizalofopethyl(ethyl-2-[4,(6chloroxyunoxalin-2-
yl)oxy)phenoxy]propanonate), all expressed as quizalofop ethyl in or on
the food commodities canola, meal at 3.0 ppm and canola, oil at 0.1 ppm
and to amend 40 CFR 186.5250 by establishing tolerances for the
combined residues of the herbicide quizalof [2-[4-(6-chloroquinoxalin-
2-yl)oxylphenyl)propanic acide] and quizalofop ethyl(ethyl-2-[4,(6-
choroxyunoxalin-2-yl)oxy)phenoxy]propanonate), all expressed as
quizalofop ethyl in or on the feed commodity canola, meal at 3.0 ppm.
There were no comments or requests for referral to an advisory
committee received in response to these notices of filing.
During the course of the review of the PP 5F4545, the Agency
determined that the filing notice had several errors in the chemical
name, that the proposed listing for foliage of legume vegetables
(except soybeans) was not necessary since it duplicated a listing under
PP 3F4268 (final rule published elsewhere in today's Federal Register)
and should be deleted from PP 5F4545. The Agency also determined that
the proposed tolerance for canola, seed at 2.0 was higher than
necessary. The petitioner subsequently submitted a revised section F
deleting the listing for foliage of legume vegetables, and proposing
the establishment of a tolerance for the combined residues of the
herbicide quizalofop ethyl 2-[4-(6-chloroquinoxalin-2-
yl)oxy)phenoxy)propanoic acid), and quizalofop ethyl (ethyl-2-[4-(6-
chloroquinoxalin-2-yl)oxy)phenoxy] propanoate, all expressed as
quizalofop ethyl in on the raw agricultural commodity canola, seed at
1.0 ppm.
During the course of the review of FAP 6H5767, the Agency noted
that there were several errors in the filing notice, including the
designation of the petition number, the filing notice should have read
6H5737 instead of 6F5737. The Agency also determined that food additive
tolerances were not necessary for canola, oil or canola, meal and that
a section 701 maximum residue level (MRL) instead of a section 409 feed
additive tolerance was needed for canola meal. The petitioner
subsequently submitted a revised section F proposing the establishment
of a maximum residue limit (MRL) for the combined residues of the
herbicide quizalofop ethyl 2-[4-(6-chloroquinoxalin-2-yl)oxy)phenoxy)
propanoic acid), and quizalofop ethyl (ethyl-2-[6-chloroquinoxalin-2-
yl)oxy)phenoxy]propanoate, all expressed as quizalofop ethyl in or on
canola meal at 1.5 ppm.
In the Federal Register of June 14, 1995 (60 FR 31300) (FRL-4944-
2), EPA issued a revised policy concerning when section 409 food and
feed additive tolerances were needed to prevent the adulteration of
foods and animal feeds. Under EPA's revised policy, a section 409
tolerance is necessary for pesticide residues in processed food when it
is likely that the level of some residues of the pesticide will exceed
the section 408 tolerance level in ``ready to eat'' processed food. Of
particular relevance to the quizalofop ethyl feed additive tolerance is
EPA`s decision to interpret the term ``ready to eat'' processed food as
food ready for consumption ``as is'' without further preparation. For
foods that are found to be not ``ready to eat,'' EPA takes into account
the dilution of residues that occurs in preparing a ``ready to eat''
food.
EPA has determined that canola meal is not a ``ready to eat''
animal feed. EPA has found no evidence that canola meal is feed to
livestock as a stand-alone feedstock. Rather, canola meal is used as an
ingredient in animal feeds. The section 408 tolerance for quizalofop
ethyl on canola seed is 1.0 ppm. The highest average field trial (HAFT)
residue found in canola was 0.65 ppm. A processing study showed that
the concentration factor for canola meal was 2.3X. Thus, given this
information, it is likely that quizalofop ethyl residues of 1.5 ppm
(0.65 x 2.3) could occur in canola meal. However, to project what
residues are likely in ``ready to eat'' animal feed containing canola
meal the 1.5 ppm level must be divided by 4 to allow for dilution
occurring when canola meal is added to other feedstuffs. Once this
dilution is taken into account, the maximum residue level of quizalofop
ethyl in animal feed would be 0.375 (1.5 ppm/4=0.375 ppm). Since this
is below the section 408 tolerance level, animal feed containing such
residue levels would not be adulterated, and no section 409 feed
additive tolerance is needed.
To aid in the efficient enforcement of the Act, EPA is proposing to
establish a maximum residue limit (MRL) for quizalofop ethyl residues
in canola meal. The MRL will reflect the maximum residue of quizalofop
ethyl in processed foods consistent with a legal level of such residues
being present in canola and the use of good manufacturing practices.
See 21 U.S.C. 542(a)(2)(c) and rules published December 6, 1995 (60 FR
62366) (FRL-4971-7), and February 29, 1996 (61 FR 7734) (FRL-4996-2),
regarding imidacloprid. Processed food not in compliance with an
applicable MRL will be deemed adulterated under section 402. Taking
into account the degree to which quizalofop ethyl may concentrate
during processing using good manufacturing processes (2.3) and the
level of residues expected in canola (0.65 ppm), EPA proposes a MRL of
1.5 ppm for canola meal. For purposes of enforcement of the MRL, the
same analytical method used for enforcement of the section 408
regulations, should be used.
The data submitted in the petition and other relevant material have
been evaluated. The toxicology data submitted in support of these
petitions is discussed under a final rule regarding PP 3F4268 and FAP
5H5720, published elsewhere in today's issue of the Federal Register.
Based on the NOEL of 0.9 mg/kg/bwt/day in the 2-year rat feeding
study, and using a hundredfold uncertainty factor, the reference dose
(RfD) for quazalofop ethyl is calculated to be 0.009 mg/kg/bwt/day. The
theoretical maximum residue contribution (TMRC) is 0.000478 mg/kg/bwt/
day for existing tolerances for the overall U.S. population. The
current action will increase the TMRC by less than 0.000077 mg/kg/bwt/
day. These tolerances and previously established tolerances utilize a
total of 6.8 % of the RfD for the overall U.S. populations, with all
exposure coming from published uses. For U.S. subgroup populations,
non-nursing infants and children aged 1 to 6 years, the current action
and previously established tolerances utilize, respectively a total of
18.842 percent and 11.98 percent of the RfD, with all exposure coming
from previously established tolerances, assuming that residue levels
are at the established tolerances and that 100 percent of the crop is
tested.
There are no desirable data lacking for this petition.
The nature of the residue in plant and livestock is adequately
understood. An adequate amount of geographically representative crop
field trial residue data were presented which show that the proposed
tolerances should not be exceeded when quizalofop ethyl is formulated
into ASSURE and used as directed. An adequate analytical methodology
(high-pressure liquid chromatography using either ultraviolet or
fluorescence detection) is available for enforcement purposes in Vol.
II of
[[Page 30206]]
the Food and Drug Administration Pesticide Analytical Method (PAM II,
Method I). There are currently no actions pending against the
registration of this chemical. Any secondary residues expected to occur
in eggs, milk, meat, fat, and meat byproducts of cattle, goats, hogs,
horses, sheep, and poultry from this use will be covered by existing
tolerances.
Based on the information cited above, the Agency has determined
that when used in accordance with good agricultural practice, this
ingredient is useful and that the tolerance established by amending 40
CFR part 180 will protect the public health, and the establishment of
the maximum residue level by amending 40 CFR part 186 is consistent
with residue levels permissible in processed foods under 21 U.S.C.
342(a)(2)(C). It is proposed, therefore, that the tolerances be
established as set forth below.
Any person who has registered or submitted an application for
registration a pesticide, under the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) as amended, which contains any of the
ingredients listed herein, may request within 30 days after publication
of this document in the Federal Register that this rulemaking proposal
be referred to an Advisory Committee in accordance with section 408 (e)
of the Federal Food, Drug, and Cosmetic Act.
Interested persons are invited to submit written comments on the
proposed regulation. Comments must bear a notation indicating the
document control number [PP 5F4545, FAP 6H5720/P663]. All written
comments filed in response to this petition will be available in the
Public Response and Program Resources Branch, at the address given
above from 8 a.m. to 4:30 p.m., Monday through Friday, except legal
holidays.
A record has been established for this rulemaking under docket
number [PP 5F4545, FAP 6H5737/P663](including comments and data
submitted electronically as described below). A public version of this
record, including printed, paper versions of electronic comments, which
does not include any information claimed as CBI, is available for
inspection from 8 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The public record is located in Rm. 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Electronic comments can be sent directly to EPA at:
[email protected]
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as public version,
as described above will be kept in paper form. Accordingly, EPA will
transfer all comments received electronically into printed paper form
as they are received and will place the paper copies in the final
rulemaking record which will also include all comments submitted
directly in writing. The official rulemaking record is the paper record
maintained at the address in ``ADDRESSES'' at the beginning of this
document.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to all the requirements of the Executive Order
(i.e., Regulatory Impact Analysis, review by the Office of Management
and Budget (OMB)). Under section 3(f), the order defines
``significant'' as those actions likely to lead to a rule (1) Having an
annual effect on the economy of $100 million or more, or adversely and
materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities (also known as
``economically significant''); (2) creating serious inconsistency or
otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement,
grants, user fees, or loan programs; or (4) raising novel legal or
policy issues arising out of legal mandates, the President`s
priorities, or the principles set forth in this Executive Order.
This action does not impose any enforceable duty, or contain any
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation a
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by Executive Order 12898 (59 FR 7629,
February 26, 1994).
Pursuant to the terms of this Executive Order, EPA has determined
that this proposed rule is not ``significant'' and therefore not
subject to OMB review.
Pursuant to the requirements of the Regulatory Flexibility Act (5
U.S.C. 601-612), the Administrator has determined that regulations
establishing new tolerances or food additive regulations or raising
tolerance levels or food additive regulations or establishing
exemptions from tolerance requirements do not have a significant
economic impact on a substantial number of small entities. A
certification statement containing the factual basis for this
conclusion was published in the Federal Register of May 4, 1981 (46 FR
24950). Because MRLs function similarly to tolerances and food additive
regulations, the establishment of a MRL also does not have a
significant effect on a small number of small entities.
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
List of Subjects in 40 CFR Part 186
Environmental protection, Animal feeds, Pesticides and pests.
Dated: May 26, 1996.
James Tompkins,
Acting Director, Registration Division, Office of Pesticide Programs.
Therefore, it is proposed that 40 CFR chapter I be amended as
follows:
PART 180 [AMENDED]
1. In part 180:
a. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
b. In 180.441, by revising paragraph (a) to read as follows:
Sec. 180.441 Quizalofop ethyl; tolerances for residues.
(a) Tolerances are established for the combined residues of the
herbicide quizalofop 2-[4-(6-chloroquinoxalin-2-yl)oxy)phenoxy)propanic
acid], and quizalofop ethyl (ethyl 2-(4-((6-chloroquinoxalin-2-
yl)oxy)phenoxy)propanoate, all expressed as quizalofop ethyl, in or on
the raw agricultural commodities:
------------------------------------------------------------------------
Commodities Part per million
------------------------------------------------------------------------
soybeans.................................. 0.05
canola, seed............................. 1.0
------------------------------------------------------------------------
* * * * *
PART 186--[AMENDED]
2. In part 186:
a. The authority citation for part 186 continues to read as
follows:
Authority: 21 U.S.C. 342, 348, and 701.
[[Page 30207]]
b. In 186.5250, by adding paragraph (c) to read as follows:
Sec. 186.5250 Quizalofop ethyl.
* * * * *
(c) A maximum residue level regulation is established permitting
residues of quizalofop (2-(4-(6-chloroquinoxalin-2-yl)oxy)phenoxy)
propanoic acid) and quizalofop ethyl (ethyl 2-[4-(6-chloroquinoxalin-2-
yl)oxy)phenoxy)-12-propanoate, in or on the following feed resulting
from application of the herbicide to canola.
------------------------------------------------------------------------
Feed Parts per million
------------------------------------------------------------------------
canola, meal.............................. 1.5
------------------------------------------------------------------------
This regulation reflects the maximum level of residues in canola meal
consistent with the use of quizalofop ethyl on canola in conformity
with 180.441 of this chapter and with the use of good manufacturing
practices.
[FR Doc. 96-15200 Filed 6-13-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-15197 Vinyl Pyrrolidone-Acrylic Acid Copolymer; Tolerance Exemption.
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30202-30204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15197]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[OPP-300426; FRL-5374-4]
RIN 2070-AC18
Vinyl Pyrrolidone-Acrylic Acid Copolymer; Tolerance Exemption.
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: This document proposes to establish an exemption from the
requirement of a tolerance for residues of vinyl pyrrolidone-acrylic
acid copolymer when used as an inert ingredient (adhesive, dispersion
stabilizer and coating for sustained release granules) in pesticide
formulations applied to growing crops, raw agricultural commodities
after harvest, and applied to animals. This proposed regulation was
requested by International Specialty Products.
DATES: Written comments, identified by the docket number [OPP-300426],
must be received on or before July 15, 1996.
ADDRESSES: By mail, submit written comments to Public Response and
Program Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person, deliver comments to: Rm. 1132, CM #2,
1921 Jefferson Davis Hwy., Arlington, VA 22202. Information submitted
as a comment concerning this document may be claimed confidential by
marking any part or all of that information as ``Confidential Business
Information'' (CBI). Information so marked will not be disclosed except
in accordance with procedures set forth in 40 CFR part 2. A copy of the
comment that does not contain CBI must be submitted for inclusion in
the public record. Information not marked confidential will be included
in the public docket by EPA without prior notice. All written comments
will be available for public inspection in Rm. 1132 at the address
given above, from 8 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays.
Comments and data may also be submitted electronically by sending
electronic mail (e-mail) to: [email protected]. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect 5.1 file format or ASCII file format.
All comments and data in electronic form must be identified by the
docket number [OPP-300426]. No Confidential Business Information (CBI)
should be submitted through e-mail. Electronic comments on this
proposed rule may be filed online at many Federal Depository Libraries.
Additional information on electronic submissions can be found below in
this document.
FOR FURTHER INFORMATION CONTACT: By mail: Bipin Gandhi, Registration
Support Branch, Registration Division (7505W), Environmental Protection
Agency, 401 M St., SW., Washington, DC 20460. Office location and
telephone number: 2800 Crystal Drive, North Tower, 6th Floor,
Arlington, VA 22202, (703)-308-8380, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: International Specialty Products, 1361 Alps
Road, Wayne, NJ 07470, submitted pesticide petition (PP) 6E04659 to EPA
requesting that the Administrator, pursuant to section 408(e) of the
Federal Food Drug, and Cosmetic Act (FFDCA) (21 U.S.C. 346 a(e)),
propose to amend 40 CFR part 180.1001(c) and (e) by establishing an
exemption from the requirement of tolerance for residues of vinyl
pyrrolidone-acrylic acid copolymer (CAS Reg. No. 28062-44-4), when used
as an inert ingredient (adhesive, dispersion stabilizer and coating for
sustained release granules) in pesticide formulations applied to
growing crops or to raw agricultural commodities after harvest, under
40 CFR 180.1001(c) and applied to animals under 40 CFR 180.1001(e).
Inert ingredients are all ingredients that are not active
ingredients as defined in 40 CFR 153.125, and include, but are not
limited to, the following types of ingredients (except when they have a
pesticidal efficacy of their own): solvents such as alcohols and
hydrocarbons; surfactants such as polyoxyethylene polymers and fatty
acids; carriers such as clay and diatomaceous earth; thickeners such as
carrageenan and modified cellulose; wetting, spreading, and dispersing
agents; propellants in aerosol dispensers; microencapsulating agents;
and emulsifiers. The term ``inert'' is not to imply nontoxicity; the
ingredient may or may not be chemically active.
The data submitted in the petition and other relevant material have
been evaluated. As part of the EPA policy statement on inert
ingredients published in the Federal Register of April 22, 1987 (52 FR
13305), the Agency set forth a list of studies which would generally be
used to evaluate the risks posed by the presence of an inert ingredient
in a pesticide formulation. However, where it can be determined without
that data that the inert ingredient will present
[[Page 30203]]
minimal or no risk, the Agency generally does not require some or all
of the listed studies to rule on the proposed tolerance or exemption
from the requirement of a tolerance for an inert ingredient. The Agency
has decided that no data, in addition to that described below, for
vinyl pyrrolidone-acrylic acid copolymer will need to be submitted. The
rationale for this decision is described below.
In the case of certain chemical substances that are defined as
``polymers,'' the Agency has established a set of criteria which
identify categories of polymers that present low risk. These criteria
(described in 40 CFR 723.250) identify polymers that are relatively
unreactive and stable compared to other chemical substances as well as
polymers that typically are not readily absorbed. These properties
generally limit a polymer's ability to cause adverse effects. In
addition, these criteria exclude polymers about which little is known.
The Agency believes that polymers meeting the criteria noted above will
present minimal or no risk. Vinyl pyrrolidone-acrylic acid copolymer
conforms to the definition of polymer given in 40 CFR 723.250(b) and
meets the following criteria that are used to identify low risk
polymers:
1. Vinyl pyrrolidone-acrylic acid copolymer is not a cationic
polymer, nor is it reasonably anticipated to become a cationic polymer
in a natural aquatic environment.
2. Vinyl pyrrolidone-acrylic acid copolymer contains as an integral
part of its composition the atomic elements carbon, hydrogen, oxygen
and nitrogen.
3. Vinyl pyrrolidone-acrylic acid copolymer does not contain as an
integral part of its composition, except as impurities, any elements
other than those listed in 40 CFR 723.250(d)(2)(ii).
4. Vinyl pyrrolidone-acrylic acid copolymer is not designed, nor it
is reasonably anticipated to substantially degrade, decompose or
depolymerize.
5. Vinyl pyrrolidone-acrylic acid copolymer is not manufactured or
imported from monomers and /or other reactants that are not already
included on the TSCA Chemical Substance Inventory or manufactured under
an applicable TSCA section 5 exemption.
6. Vinyl pyrrolidone-acrylic acid copolymer contains only
carboxylic acid groups as reactive functional groups.
7. The minimum number-average molecular weight of vinyl
pyrrolidone-acrylic acid copolymer is listed as 6,900 daltons.
Substances with molecular weights greater than 400 generally are not
absorbed through the intact skin, and substances with molecular weights
greater than 1,000 generally are not absorbed through the intact
gastrointestinal (GI) tract. Chemicals not absorbed through the skin or
GI tract generally are incapable of eliciting a toxic response.
8. Vinyl pyrrolidone-acrylic acid copolymer has a number average
molecular weight of 6,900 and contains less than 10 percent oligomeric
material below molecular weight 500 and less than 25 percent oligomeric
material below 1,000 molecular weight. Based upon the above information
and review of its use, EPA has found that, when used in accordance with
good agricultural practice, this ingredient is useful and tolerance is
not necessary to protect the public health. Therefore, EPA proposes
that the exemptions from the requirement of a tolerance be established
for this polymer as set forth below.
Any person who has registered or submitted an application for
registration of a pesticide, under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) as amended, that contains any of the
ingredients listed herein, may request within 30 days after the
publication of this document in the Federal Register that this
rulemaking proposal be referred to an Advisory Committee in accordance
with section 408(e) of the FFDCA.
Interested persons are invited to submit written comments on the
proposed regulation. Comments must bear a notation indicating the
docket number, [OPP-300426].
A record has been established for this rulemaking under docket
number [OPP-300426] (including comments and data submitted
electronically as described below). A public version of this record,
including printed paper versions of electronic comments, which does not
include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Electronic comments can be sent directly to EPA at:
opp-D[email protected]
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which also will include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the address in the ``ADDRESSES'' at the
beginning of this document.
The Office of Management and Budget has exempted this rule from the
requirements of section 2 of Executive Order 12866.
This action does not impose any enforceable duty, or contain any
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by Executive Order 12898 (59 FR 7629,
February 16, 1994).
Pursuant to the requirement of the Regulatory Flexibility Act (Pub.
L. 96-354, 94 Stat. 1164, 5 U.S.C. 601-612), the Administrator has
determined that regulations establishing new tolerances or raising
tolerance levels or establishing exemptions from tolerance requirements
do not have an economic impact on a substantial number of small
entities. A certification statement to this effect was published in the
Federal Register of May 4, 1981 (46 FR 24950).
List of Subject in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Food additives, Pesticides and pests,
Processed foods, Reporting and recordkeeping requirements.
Dated: May 31, 1996.
Stephen L.Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, it is proposed that 40 CFR part 180 be amended as
follows:
PART 180 -- [AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. In Sec. 180.1001, paragraphs (c) and (e), the table in each
paragraph is amended by adding alphabetically the inert ingredient
``Vinyl pyrrolidone-acrylic acid copolymer,'' to read as follows:
[[Page 30204]]
Sec. 180.1001 Exemptions from the requirement of a tolerance.
* * * * *
(c) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inert Ingredient Limits Uses
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Vinyl pyrrolidone-acrylic acid copolymer (CAS Adhesive, dispersion stabilizer
Reg. No. 28062-44-4), minimum number average and coating for sustained
molecular weight (in amu) 6,000. release granules.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inert Ingredient Limits Uses
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Vinyl pyrrolidone-acrylic acid copolymer (CAS Adhesive, dispersion stabilizer
Reg. No. 28062-44-4), minimum number average and coating for sustained
molecular weight (in amu) 6,000. release granules.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 96-15197 Filed 6-13-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-15186 Authorization of Indian Tribe's Hazardous Waste Programs Under RCRA Subtitle C
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30472-30487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15186]
[[Page 30471]]
_______________________________________________________________________
Part IX
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 35, 270, 271
Authorization of Indian Tribe's Hazardous Waste Programs Under RCRA
Subtitle C; Proposed Rule
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 /
Proposed Rules
[[Page 30472]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 35, 270 and 271
[EPA/OSW-FRL-5509-8]
RIN 2050-AD07
Authorization of Indian Tribe's Hazardous Waste Programs Under
RCRA Subtitle C
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Today's proposed rule will further the Policy for the
Administration of Environmental Programs on Indian Reservations (Nov.
8, 1984) (``EPA's Indian Policy'') by clarifying the eligibility of
Tribal governments to obtain authorization from EPA to implement a
Subtitle C hazardous waste program in lieu of EPA under RCRA section
3006, and to obtain Federal grants to support the development and
implementation of such a program under RCRA section 3011. This proposal
identifies the standards and procedures that would govern the
submission and review of Indian Tribes' authorization applications. It
also discusses the circumstances under which Tribes could be approved
to operate a partial Subtitle C hazardous waste program.
DATES: Comments on this proposed rule must be submitted on or before
August 13, 1996.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number x-96-xxxx-xxxxx to: (1) If using
regular US Postal Service mail: RCRA Docket Information Center, Office
of Solid Waste (5305W), U.S. Environmental Protection Agency
Headquarters (EPA, HQ), 401 M Street, SW, Washington, DC 20460 or (2)
if using special delivery, such as overnight express service: RCRA
Docket Information Center (RIC), Crystal Gateway One, 1235 Jefferson
Davis Highway, First Floor, Arlington, VA 22202. Comments may also be
submitted electronically through the Internet to: RCRA-
D[email protected]. These comments should be identified by the
docket number x-96-xxxx-xxxxx, and submitted as an ASCII file to avoid
the use of special characters and encryptions.
Please do not submit any Confidential Business Information (CBI)
electronically. An original and two copies of CBI must be submitted
under separate cover to: RCRA CBI Document Control Officer, Office of
Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, DC 20460.
Public comments and supporting materials are available for viewing
in the RCRA Information Center (RIC) located at Crystal Gateway One,
1235 Jefferson Davis Highway, First Floor, Arlington, VA. The RIC is
open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal
holidays. To review docket materials, please make an appointment by
calling (703) 603-9230. The public may copy a maximum of 100 pages from
any regulatory docket at no charge. Additional copies will cost $.15/
page.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline, Office of Solid Waste, U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington, D.C. 20460, (800) 424-9346; TDD
(800) 553-7672 for the hearing impaired; in the Washington, D.C. metro
area, the telephone number is (703) 412-9810, TDD 703-412-3323.
For more detailed information, contact Felicia Wright, Office of
Solid Waste (5303W), U.S. Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20460; telephone (703) 308-8634.
SUPPLEMENTARY INFORMATION: In this document, EPA is proposing
amendments to the RCRA Subtitle C regulatory definitions, authorization
standards, and authorization procedures, which are codified in subpart
A of 40 CFR part 270 and in subpart A of 40 CFR part 271.
The index is available on the Internet. Please follow these
instructions to access the information electronically: Gopher:
gopher.epa.gov WWW: http://www.epa.gov
Dial-up: (919) 558-0335.
This report can be accessed from the main EPA Gopher menu in the
directory: EPA Offices and Regions/Office of Solid Waste and Emergency
Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste/
........./..........
FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet Address
Files are located in /pub/gopher/OSWRCRA
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comments received electronically
into paper form and place them in the official record, with all of the
comments received in writing. The official record is the paper record
maintained at the address in ``ADDRESSES'' at the beginning of this
document.
EPA's responses to comments, whether written or electronic, will be
printed in the Federal Register, or in a ``response to comments
document'' placed in the official record for this rulemaking. EPA will
not immediately reply to commenters electronically other than to
clarify electronic comments that may be garbled during transmission or
conversion to paper form.
I. Overview of This Proposed Rulemaking
This proposal further implements the Agency's 1984 Indian Policy by
amending certain definitions, standards, and procedures within the
regulations promulgated pursuant to RCRA Subtitle C (42 USC 6921--
6939e) that govern EPA's authorization of States' hazardous waste
programs. The overall effect of these amendments would be to clarify
that Indian Tribes may obtain full or partial authorization from EPA to
operate Tribal hazardous waste management programs in lieu of EPA's
Federal regulatory program, and to clarify that authorized Indian
Tribes, in the same manner as authorized States, may obtain RCRA
section 3011 grant funds to aid the development and implementation of
their Subtitle C management programs.
This notice proposes to add definitions of ``Indian Tribes'' and
``Indian Country'' to the Subtitle C program definitions codified at 40
CFR 270.2. Moreover, the existing definition of ``States'' in section
270.2 would be amended to extend to ``Indian Tribes'' the ability to
obtain program authorization from EPA under RCRA section 3006, and
financial assistance from EPA under RCRA section 3011.
EPA proposes to amend several sections of subpart A of 40 CFR part
271, which contains the standards and procedures for EPA's
authorization of ``State'' hazardous waste programs. A new subsection
in (Sec. 271.1(k)) would be added to clarify that the substantive
standards and procedures that apply to States' programs and
authorization submissions apply to Tribal programs and submissions,
unless there is a specific provision that would address Tribal programs
differently.
The specific procedures which EPA believes are appropriate for
Tribal program authorizations and submissions would be set out in a new
Sec. 271.27. Proposed Sec. 271.27(a) identifies several minor changes
to the authorization application documents and agreements (i.e.,
Governor's letter, Program Description, Memorandum of Agreement, and
Attorney General's Statement) which EPA requires States to submit in
support of their applications
[[Page 30473]]
for program authorization. The proposed changes arise from a
recognition of tribal sovereignty and differences in the structure of
Tribal governments, and from circumstances unique to Indian Tribes.
Proposed Sec. 271.27(b) establishes criteria under which Indian
Tribes may be authorized to operate a partial RCRA hazardous waste
program. This authority enables a Tribe, for example, to obtain
authorization for a program that regulates only generators and
transporters of hazardous waste, with EPA retaining responsibility for
regulating and enforcing requirements for any hazardous waste
treatment, storage, and disposal facilities. Under this proposal, only
Indian Tribes would be eligible for partial program authorization.
States will continue to be precluded from seeking and obtaining partial
authorization. Other provisions in Sec. 271.27 address the core program
requirements of a partial program, the sharing of authority with EPA,
and other requirements that follow from the inclusion of partial
program authority in this proposed rule.
II. Authority
Today's rule is being proposed under the authority of sections
2002, 3006, and 3011 of the Resource Conservation and Recovery Act of
1976 (RCRA or the Act), as amended. Section 2002(a) authorizes the
Administrator to prescribe such regulations as are necessary to carry
out functions under Subtitle C of RCRA. Section 3006 of RCRA allows EPA
to authorize State hazardous waste programs to operate in the State in
lieu of the Federal hazardous waste program subject to the authority
retained by EPA in accordance with the Hazardous and Solid Waste
Amendments of 1984 (HSWA). Section 3011 of RCRA authorizes EPA to make
grants to the States for the purpose of assisting the States in the
development and implementation of authorized State hazardous waste
programs.
III. Background
A. Current Subtitle C Authorization Program
EPA has primary responsibility for implementing and enforcing the
RCRA Subtitle C hazardous waste program. Federal law, including the
issuance and enforcement of permits for hazardous waste facilities,
will be implemented by the Federal EPA until EPA authorizes a State for
a hazardous waste program, at which point primary authority rests with
the State.
The statute and regulations currently support two types of State
program authorization. The first type, ``interim authorization,'' is a
temporary authorization which is granted if EPA determines that the
State program is ``substantially equivalent'' to the Federal program
(section 3006(c), 42 U.S.C. 6926(c)). Interim authorization is
currently available only for requirements imposed pursuant to the
Hazardous and Solid Waste Amendments (HSWA) of 1984. HSWA Interim
Authorization will expire in January, 2003 unless extended by rule.
The second type of authorization is ``final'' (permanent)
authorization. Final authorization may be granted by EPA if the Agency
determines, among other things, that the State program: (1) Is
equivalent to the Federal program; (2) is consistent with the Federal
program and other authorized State programs; and (3) provides for
adequate enforcement (Section 3006(b), 42 U.S.C. 6926(b)) 7004,
3006(f). States, and now under this proposal, Tribes, need not have
obtained interim authorization in order to qualify for final
authorization.
To date, 46 States, Guam and the District of Columbia have been
authorized for the ``base'' RCRA Subtitle C program (i.e., the program
in place before the enactment of HSWA in 1984). In these States, the
authorized State programs operate in lieu of the corresponding Federal
program and, if Federal enforcement is necessary, EPA must enforce the
authorized State program requirements.
B. EPA's 1984 Indian Policy
Today, EPA is proposing to extend to Indian Tribes the opportunity
to apply for and receive hazardous waste program authorization similar
to that currently available to States. Providing Tribes with this
opportunity is consistent with the EPA's Indian Policy. This policy,
formally adopted in 1984, and reaffirmed on March 14, 1994 by EPA
Administrator Carol M. Browner, ``* * * views Tribal Governments as the
appropriate non-Federal parties for making decisions and carrying out
program responsibilities affecting Indian reservations, their
environments, and the health and welfare of the reservation populace.
Just as EPA's deliberations and activities have traditionally involved
the interests and/or participation of State governments, EPA will look
directly to Tribal Governments to play this lead role for matters
affecting reservation environments.''
A major goal of EPA's Indian Policy is to eliminate all statutory
and regulatory barriers to Tribal administration of Federal
environmental programs. Today's proposal represents another step in the
Agency's continuing commitment towards achieving this goal. However,
EPA recognizes, in the spirit of Indian self-determination and the
government-to-government relationship, that not all Tribes will choose
to apply for and receive hazardous waste program authorization at this
time. Regardless of the choice made, the Agency remains committed to
providing technical assistance and training when possible to Tribal
entities as they work to resolve their hazardous waste management
concerns.
C. Legal Basis for Subtitle C Authorization of Indian Tribes
EPA believes that adequate authority exists under the Act to allow
Tribes to seek hazardous waste program authorization. EPA's
interpretation of RCRA is governed by the principles of Chevron, USA v.
NRDC, 467 U.S. 837 (1984). Where Congress has not explicitly stated its
intent in adopting a statutory provision, the Agency charged with
implementing that statute may adopt any interpretation which, in the
Agency's expert judgment, is reasonable in light of the goals and
purposes of the statute as a whole. Id. at 844. Interpreting RCRA to
allow Tribes to apply for hazardous waste program authorization
satisfies the Chevron test.
RCRA does not explicitly define a role for Tribes under section
3006 and reflects an undeniable ambiguity in Congressional intent.
Indeed, the only mention of Indian Tribes anywhere in RCRA is in
section 1004(13), a part of the ``Definitions'' of key terms in RCRA.
Section 1004(13) defines the term ``municipality'' to mean:
A city, town, borough, county, parish, district or other public
body created by or pursuant to State law, with responsibility for
the planning or administration of solid waste management, or any
Indian tribe or authorized tribal organization or Alaska Native
village or organization[.]
The term ``municipality'', in turn, is used in section 4008(a)(2)
of RCRA with specific reference to the availability of certain Federal
funds and technical assistance for hazardous and solid waste planning
and management activities by municipalities. Section 4008(a)(2)
authorizes EPA to provide financial and technical assistance to
municipalities on hazardous and solid waste management. Although
Congress apparently intended to make explicit that Indian Tribes could
receive funds and assistance when available in the same manner as
municipal governments (by the inclusion of Tribes in section 1004(13)),
Congress did not explicitly recognize any other role for Tribes under
other provisions. There is no accompanying legislative history which
explains why
[[Page 30474]]
Indian Tribes were included in section 1004(13) and nowhere else.
EPA does not believe that Congress, by including Indian Tribes in
section 1004(13), intended to prohibit EPA from allowing Tribes to
apply for hazardous waste program authorization under Subtitle C. First
of all, it is clear that Indian Tribes are not ``municipalities'' in
the traditional sense. Indian Tribes are not ``public bodies created by
or pursuant to State law.'' Indeed, Indian Tribes are not subject to
State law except in very limited circumstances. See, California v.
Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Indian Tribes are
sovereign governments. See Worcester v. Georgia, 31 U.S. (10 Pet.) 515
(1832); and United States v. Mazurie, 419 U.S. 544, 557-58 (1975).
There is no indication in the legislative history that Congress
intended to abrogate any sovereign Tribal authority by defining them as
``municipalities'' under RCRA; i.e., that Congress intended section
1004(13) to subject Indian Tribes to State law for RCRA purposes.
Moreover, it is a well-established principle of statutory construction
that Federal statutes which are ambiguous as to whether they abridge
Tribal powers of self-government must be construed narrowly in favor of
retaining Tribal rights. F. Cohen, Handbook of Federal Indian Law, 224
(1982); See, e.g., Ramah Navajo School Board v. Bureau of Revenue, 458
U.S. 832, 846 (1982).
EPA believes that inclusion of Indian Tribes in section 1004(13)
was a definitional expedient, to avoid having to include the phrase
``and Indian tribes or tribal organizations or Alaska Native villages
or Organizations'' wherever the term ``municipality'' appeared, not to
change the sovereign status of Tribes for RCRA purposes. In particular,
the references in section 4008(a)(2) to state ``assistance'' to
municipalities does not suggest that Congress intended Indian Tribes to
be subject to State governmental control. Furthermore, given the
limited number of times the term ``municipality'' appears in RCRA, it
does not appear that Congress was attempting to define a role for
Tribes for all potential statutory purposes.
The ambiguity in RCRA regarding Indian Tribes also is evident in
the 1984 RCRA amendments. In these amendments, while silent on the role
for Tribes in implementing any RCRA programs, Congress expressed a
strong preference for a State lead for implementing and ensuring
compliance with the Federal Subtitle D revised criteria (as it had
earlier in providing for State authorization in RCRA Subtitle C).1
Yet, the legislative history of the 1984 amendments does not suggest
that Congress intended to approve States to implement such programs in
Indian country or that Congress considered the legal principle that
States generally are precluded from such implementation. Similarly,
RCRA Subtitle C does not contain an explicit delegation of authority to
States to implement hazardous waste programs in Indian country.
Washington Dept. of Ecology v. EPA, 752 F.2d 1465, 1469 (9th Cir. 1985)
(RCRA Subtitle C does not constitute an explicit delegation of
authority to States to implement hazardous waste programs on Indian
lands); accord, Nance v. EPA, 745 F.2d 701 (9th Cir. 1981). Thus, while
Congress has otherwise put States in a primary role for both Subtitle C
hazardous waste program implementation and Subtitle D permit programs,
on Indian lands, it failed to define how Tribes participate where
States lack authority. EPA believes it necessary to harmonize the
conflicts and resolve the ambiguities created by these provisions.
---------------------------------------------------------------------------
\1\ See, e.g., Solid Waste Disposal Act Amendments of 1979, 125
Cong. Rec. 13,241, 13,252 (1979) (``one of the real advantages of
State assumption of these programs envisioned by Congress in the
Act, over a more uniform Federal program, is that States are better
able to tailor their programs to meet local circumstances * * *'').
---------------------------------------------------------------------------
Failure to authorize Tribal hazardous waste programs would deny
Tribes the option currently available to States to administer their
programs ``in lieu of the Federal program.'' With this proposal,
however, Subtitle C regulated activities and facilities in Indian
country would be under the jurisdiction of the closest sovereign with
permitting and enforcement authority, the Tribe, rather than the
Federal government.2
---------------------------------------------------------------------------
\2\ EPA has approved one tribal program under RCRA--the Campo
Band of Mission Indian's municipal solid waste landfill permit
program (60 FR 21191 (May 1, 1995)). This action has been challenged
in the United States Court of Appeals for the D.C. Circuit. See,
Backcountry Against Dumps v. E.P.A., No. 95-1343 (D.C. Cir. Filed
July 6, 1995).
---------------------------------------------------------------------------
EPA has worked to revise other environmental statutes (e.g., the
Clean Water Act) to define explicitly the role for Tribes under these
programs. EPA also has stepped in on at least two occasions to allow
Tribes to seek program approval despite the lack of an explicit
Congressional mandate. Most recently, EPA recognized Indian Tribes as
the appropriate authority under the Emergency Planning and Community
Right-to-Know Act (EPCRA), despite silence on the Tribal role under
EPCRA. 55 FR 30632 (July 26, 1990). EPA reasoned that since EPCRA has
no federal role to backup State planning activities, failure to
recognize Tribes as the authority under EPCRA would leave gaps in
emergency planning in Indian country. 54 FR 13000-01 (March 29, 1989).
EPA filled a similar statutory gap much earlier as well, even
before development of its formal Indian Policy. In 1974, EPA
promulgated regulations which authorized Indian Tribes to redesignate
the level of air quality applicable to Indian reservations under the
Prevention of Significant Deterioration (PSD) program of the Clean Air
Act in the same manner that States could redesignate for other lands.
See Nance v. EPA (upholding regulations). EPA promulgated this
regulation despite the fact that the Clean Air Act at that time made no
reference whatsoever to Indian Tribes or their status under the
Act.3
---------------------------------------------------------------------------
\3\ Congress ratified EPA's regulation in 1977 by explicitly
authorizing Tribes to make PSD redesignations; the 1990 Amendments
to the Act authorize EPA to allow Tribes to apply for approval to
implement any programs EPA deems appropriate.
---------------------------------------------------------------------------
One Court already has recognized the reasonableness of EPA's
actions in filling such regulatory gaps in Indian reservations. In
Nance, the U.S. Court of Appeals for the Ninth Circuit affirmed EPA's
PSD redesignation regulations described in the previous paragraph. The
Court found that EPA could reasonably interpret the Clean Air Act to
allow for Tribal redesignation, rather than allowing the States to
exercise that authority or exempting Indian reservations from the
redesignation process. 745 F.2d 713. The Court noted that EPA's rule
was reasonable in light of the general existence of Tribal sovereignty
over activities in Indian reservations. Id. at 714.
Today's proposal is analogous to the rule upheld in Nance. EPA is
proposing to fill a statutory gap regarding the role of Tribes in the
implementation of Subtitle C in Indian country. As with the
redesignation program, authorizing Tribal hazardous waste programs
ensures that the Federal government is not the entity exercising
authority that Congress intended to be exercised at a local level.
Furthermore, the case law supporting EPA's interpretation is even
stronger today than at the time of the Nance decision. First, the
Supreme Court reaffirmed EPA's authority to develop reasonable
controlling interpretations of environmental statutes. Chevron, supra.
Second, the Supreme Court emphasized since Nance that Indian Tribes may
regulate activities in Indian country, including those of non-Indians
on fee lands where the conduct directly threatens the health
[[Page 30475]]
and safety of the Tribe or its members. Montana v. United States, 450
U.S. 544, 565 (1981).
Extending the ability to receive program authorization to Tribes is
consistent with the general principles of Federal Indian law and the
Agency's Indian Policy which states that environmental programs (e.g.,
RCRA Subtitle C) in Indian country will be implemented to the maximum
extent by Tribal governments. Thus, as in Nance, EPA believes that
allowing Tribes to apply for hazardous waste authorization reflects the
sovereign authority of Tribes under Federal law.
A Tribe submitting an application to receive authorization for any
or all parts of the RCRA Subtitle C hazardous waste program will be
subject to the standards of this rule, when finalized. A Tribe which
has received authorization prior to promulgation of the final rule will
not lose its authorization status. However, if there are subsequent
changes in either the Federal or Tribal program (including, for
example, the acquisition of significant amounts of non-reservation land
by the Tribe), such a Tribe may be required to revise its authorized
program in accordance with the standards set forth in 40 CFR part 271.
IV. Detailed Discussion of the Proposed Rule
A. Overview
This proposed rule announces several changes to the regulatory
definitions (40 CFR 270.2) that define the scope of the Subtitle C
authorization program. Today's proposal also specifies the standards
and procedures that EPA would follow in approving, revising and
withdrawing authorization of Tribal hazardous waste programs, as well
as the requirements that tribal programs must meet to be authorized by
the Administrator under sections 3006(b) of RCRA.
Generally, Tribes would have to meet the same criteria as do the
States. Consequently, except where otherwise expressly indicated, the
REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS (40
CFR part 271) are applicable to Tribes as well. However, today's
proposal recognizes the uniqueness of Tribes and Indian country and
revises several existing requirements, and adds appropriate
requirements to certain sections of the rule.
This part of the preamble discusses in detail changes in the
definitions which EPA believes are necessary to clarify the role of
Indian Tribes in Subtitle C authorization, and the other substantive
and procedural regulatory amendments which are needed to make the 40
CFR part 271 requirements more suited to the unique circumstances of
Tribes and Indian Country.
B. Tribal Regulatory Authority
To have its hazardous waste program authorized by EPA under today's
proposal, a Tribe would have to have adequate authority over the
regulated activities. The jurisdiction of Tribes clearly extends ``over
both their members and their territory.'' United States v. Mazurie, 419
U.S. 544, 557 (1975). However, Indian reservations may include lands
owned in fee by non-members. ``Fee lands'' are privately owned by non-
members and title to the lands can be transferred without restriction.
The extent of Tribal authority to regulate activities by non-tribal
members on fee lands has been the subject of considerable discussion.
The Supreme Court has said that there are two situations where a Tribe
is able to exercise civil jurisdiction over non-member owned fee lands
within Indian reservations. The Court stated, in Montana v. U.S., 450
U.S. 544, 566-67 (1981) (citations omitted):
To be sure, Indian tribes retain inherent sovereign power to
exercise some forms of civil jurisdiction over non-Indians on their
reservations, even on non-Indian fee lands. A tribe may regulate * *
* the activities of non-members who enter consensual relationships
with the tribe or its members, through commercial dealing,
contracts, leases, or other arrangements * * *. A tribe may also
retain inherent power to exercise civil authority over the conduct
of non-Indians on fee lands within its reservation when that conduct
threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the tribe.
The Court applied the latter part of this test in Brendale v.
Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408
(1989). In that case, both the State of Washington and the Yakima
Nation asserted authority to zone non-Indian real estate developments
on two parcels within the Yakima reservation, one in an area that was
primarily Tribal, the other in an area where much of the land was owned
in fee by non-tribal members. Although the Court analyzed the issues
and the appropriate interpretation of Montana at considerable length,
the nine members split 4:2:3 in reaching the decision that the Tribe
should have exclusive zoning authority over property in the Tribal area
and the State should have exclusive zoning authority over non-Indian
owned property in the fee area.
Specifically, the Court did recognize Tribal authority over
activities that would threaten the health and welfare of the Tribe, 492
U.S. at 443-444 (Stevens, J., writing for the Court); id. at 449-450
(Blackmun, J. concurring). Conversely, the Court found no Tribal
jurisdiction where the proposed activities ``would not threaten the
Tribe's * * * health and welfare.'' Id. at 432 (White, J., writing for
the Court). Given the lack of a majority rationale, the primary
significance of Brendale is in its result, which was fully consistent
with Montana v. United States.
In evaluating whether a Tribe has authority to regulate a
particular activity on land owned in fee by non-members but located
within a reservation, EPA will examine the Tribe's authority in light
of the evolving case law as reflected in Montana and Brendale and
applicable Federal law. The extent of such Tribal authority depends on
the effect of that activity on the Tribe. As discussed above, in the
absence of a contrary statutory policy, a Tribe may regulate the
activities of non-Indians on fee lands within its reservation when
those activities threaten or have a direct effect on the political
integrity, the economic security, or the health or welfare of the
Tribe. Montana, 450 U.S. at 565-66.
However, as discussed by EPA in the context of the Clean Water Act,
the Supreme Court, in a number of post-Montana cases, has explored
several criteria to assure that the impacts upon Tribes of the
activities of non-Indians on fee land, under the Montana test, are more
than de minimis, although to date the Court has not agreed, in a case
on point, on any one reformulation of the test. See 56 FR 64876, 64878
(December 12, 1991). In response to this uncertainty, the Agency will
apply, as an interim operating rule, a formulation of the Montana
standard that will require a showing that the potential impacts of
regulated activities of non-members on the Tribe are serious and
substantial. See 56 FR at 64878. EPA will thus require that a Tribe
seeking RCRA Subtitle C authorization demonstrate jurisdiction, i.e.,
make a showing that the potential impacts on the Tribe from hazardous
waste management activities of non-members on fee lands are serious and
substantial.
The choice of an Agency operating rule containing this standard is
taken solely as a matter of prudence in light of judicial uncertainty
and does not reflect an Agency endorsement of this standard per se. See
56 FR at 64878. Moreover, as discussed below, the Agency believes that
the activities regulated under the various
[[Page 30476]]
environmental statutes, including RCRA, generally have potential direct
impacts on human health and welfare that are serious and substantial.
As a result, the Agency believes that Tribes usually will be able to
meet the Agency's operating rule, and that use of such a rule by the
Agency should not create an improper burden of proof on Tribes.
Whether a Tribe has jurisdiction over activities by non-members on
fee lands will be determined case-by-case, based on factual findings.
The determination as to whether the required effect is present in a
particular case depends on the circumstances and will likely vary from
Tribe to Tribe.
Nonetheless, the Agency also may take into account the provisions
of environmental statutes and any legislative findings that the effects
of the activity are serious and substantial in making a generalized
finding that Tribes are likely to possess sufficient inherent authority
to control environmental quality in Indian Country. See, e.g., Keystone
Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 476-77 and
nn.6, 7 (1987). The Agency may also rely on its special expertise and
practical experience regarding the importance of hazardous waste to the
protection of Tribal environments and the health and welfare of Tribal
members. As a result, the reservation-specific demonstration required
of a Tribe may, in many cases, be relatively simple. EPA's approach to
determining Tribal jurisdiction over the activities of nonmembers on
fee lands within reservation boundaries was recently upheld in Montana
v. EPA, No. CV 95-56-M-CCL, 1996 U.S. Dist. LEXIS 4753 (D. Mont. March
27, 1996), which involved an EPA decision to approve a Tribal
application to administer the water quality standards program under
section 303 of the Clean Water Act.
EPA believes that Congress established a strong Federal interest in
effective management of hazardous waste throughout the country by
enacting RCRA. For example, one of the primary objectives of the
statute is ``to promote the protection of health and the environment
and to conserve valuable material and energy resources by * * *
assuring that hazardous waste management practices are conducted in a
manner which protects human health and the environment.'' RCRA section
1003(a), 42 U.S.C. 6902(a). EPA also notes that many of the
environmental problems caused by mismanagement of hazardous waste
(e.g., groundwater contamination or the release of hazardous
constituents into the air) by their nature present potential direct
impacts that are serious and substantial in areas that are outside the
place where the hazardous waste management originally occurred. In
other words, any environmental hazards that result from hazardous waste
management by non-members on fee lands within a reservation are very
likely to present direct impacts to Tribal environments, health and
welfare that are serious and substantial. EPA also believes that a
``checkerboard'' system of regulation, whereby the Tribe and State
split up regulation of hazardous waste on Indian lands, would
exacerbate the difficulties of assuring compliance with RCRA
requirements.
In light of the Agency's statutory responsibility for implementing
the environmental statutes, its interpretations of the intent of
Congress regarding Tribal management of solid waste within the
reservation are entitled to substantial deference. Washington Dep't of
Ecology v. EPA, 752 F.2d 1465, 1469 (9th Cir. 1985); see generally
Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 843-45 (1984).
The Agency also believes that the effects on Tribal health and
welfare necessary to support Tribal regulation of non-Indian activities
on Indian lands may be easier to establish in the context of
environmental regulation than with regard to zoning, which was at issue
in Brendale. There is a significant distinction between land use
planning and environmental regulation of hazardous waste under RCRA.
The Supreme Court has explicitly recognized such a distinction: ``Land
use planning in essence chooses particular uses for the land;
environmental regulation * * * does not mandate particular uses of the
land but requires only that, however the land is used, damage to the
environment is kept within prescribed limits.'' California Coastal
Comm'n v. Granite Rock Co., 480 U.S. 572, 587 (1987). The Court has
relied on this distinction to support a finding that States retain
authority to carry out environmental regulation even in cases where
their ability to carry out general land use regulation is preempted by
federal law. Id. at 587-89.
Further, management of hazardous waste serves the purpose of
protecting public health and safety, which is a core governmental
function, whose exercise is critical to self-government. The special
status of governmental actions to protect public health and safety is
well established.4 By contrast, the power to zone can be exercised
to achieve purposes which have little or no direct nexus to public
health and safety. See, e.g., Brendale, 492 U.S. at 420 n.5 (White,
J.). (listing broad range of consequences of state zoning decision).
Moreover, hazardous waste may affect ground water, which is mobile,
freely migrating from one local jurisdiction to another, sometimes over
large distances. By contrast, zoning regulates the uses of particular
properties with impacts that are much more likely to be contained
within a given local jurisdiction.
---------------------------------------------------------------------------
\4\ This special status has been reaffirmed by all nine justices
in the context of Fifth Amendment takings law. See Keystone
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491 n. 20
(1987); id. at 512 (Rehnquist, C.J., dissenting).
---------------------------------------------------------------------------
The process that the Agency will use for Tribes to demonstrate
their authority over non-members on fee lands includes a submission of
a statement in the Tribal Legal Certification (Sec. 271.27(a))
explaining the legal basis for the Tribe's regulatory authority.
However, EPA will also rely on its generalized findings regarding the
relationship of hazardous waste management to Tribal health and
welfare. Thus, the Tribal submission will need to make a showing of
facts that there are or may be activities regulated under RCRA Subtitle
C engaged in by non-members on fee lands within the territory for which
the Tribe is seeking authorization, and that the Tribe or Tribal
members could be subject to exposure to hazardous waste from such
activities through, e.g., groundwater, soil, air, and/or direct
contact. The Tribe must explicitly assert and demonstrate jurisdiction,
i.e., make a showing, that improper management of hazardous waste by
non-members on fee lands could have direct impacts on the health and
welfare of the Tribe and its members that are serious and substantial.
Once a Tribe meets this initial burden, EPA will, in light of the facts
presented by the Tribe and the generalized statutory and factual
findings regarding the importance of proper hazardous waste management
in Indian country, presume that the Tribe has made an adequate showing
of jurisdiction over non-member activities on fee lands, unless an
appropriate governmental entity (e.g., an adjacent Tribe or State)
demonstrates a lack of jurisdiction on the part of the Tribe.
The Agency recognizes that jurisdictional disputes between Tribes
and States can be complex and difficult and that it will, in some
circumstances, be forced to address such disputes by attempting to work
with the parties in a mediative fashion. However, EPA's ultimate
responsibility is protection of human health and the environment. In
view of the mobility of environmental problems, and the interdependence
of
[[Page 30477]]
various jurisdictions, it is imperative that all affected sovereigns
work cooperatively for environmental protection.
C. Implementing the Government-to-Government Relationship With EPA
Under the Clean Water Act (CWA), the Safe Drinking Water Act
(SDWA), the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) and the Clean Air Act (CAA), Congress has
specified certain criteria by which EPA is to determine whether a Tribe
may be treated in the same manner as a State. These criteria generally
require that the Tribe (1) be recognized by the Secretary of the
Interior; (2) have an existing government exercising substantial
governmental duties and powers; (3) have adequate civil regulatory
jurisdiction over the subject matter and entities to be regulated; and
(4) be reasonably expected to be capable of administering the federal
environmental program for which it is seeking approval.
As discussed below, EPA is requiring Tribes seeking grant funds
under RCRA 3011 or program authorization under RCRA 3006 to demonstrate
in the Program Description that they meet the four criteria listed
above. The process EPA is proposing for Tribes to make this showing,
however, generally is not an onerous one.
The Agency has simplified its process for determining Tribal
eligibility to administer environmental programs under several other
environmental statutes. See 59 FR 64339 (December 14, 1994)
(``Treatment as a State (TAS) Simplification Rule''). The proposed
process for determining eligibility for RCRA Subtitle C programs
parallels the simplification rule. Generally, the fact that a Tribe has
met the recognition or governmental function requirement under another
environmental statute allowing for Tribal assumption of environmental
programs or grants (e.g., the Clean Water Act, Safe Drinking Water Act,
Clean Air Act) will establish that it meets those requirements for
purposes of RCRA Subtitle C authorization. To facilitate review of
tribal applications, EPA therefore requests that the Tribe demonstrate,
in proposed 40 CFR 271.27(a)(3)(ii), that it has been approved for
``TAS'' (under the old ``TAS'' process) or been deemed eligible to
receive authorization (under the simplified process) for any other
program.
If a Tribe has not received ``TAS'' approval or been deemed
eligible to receive authorization, the Tribe must demonstrate, pursuant
to proposed Sec. 271.27(a)(3)(ii), that it meets the recognition and
governmental function criteria described above. A discussion on how to
make these showings can be found at 59 FR 64339 (December 14, 1994).
EPA believes, on the other hand, that the Agency must make a
separate determination that a Tribe has adequate jurisdictional
authority and administrative and programmatic capability before it
approves each Tribal program.
In particular, if the Tribe is asserting jurisdiction over
hazardous waste activities conducted by non-members on fee lands within
Reservation boundaries, it must explicitly show, in its submission,
that the activities of non-members on fee lands regarding hazardous
waste could have direct effects on the health and welfare of the Tribe
that are serious and substantial. Copies of all documents, such as
treaties, constitutions, by-laws, charters, executive orders, codes,
ordinances, and/or resolutions which support the Tribe's assertions of
jurisdiction must also be included. EPA will review this documentation
and any comments given during the public comment period, and then will
make a determination whether there has been an adequate demonstration
of Tribal jurisdiction over Tribal, and if asserted, non-member
hazardous waste activities on fee lands within the boundaries of the
reservations.
Finally, capability is a determination that will be made on a case-
by-case basis. Ordinarily, the information provided in the application
for RCRA Subtitle C permit program approval submitted by any applicant,
Tribal or State, will be sufficient (see the program description
requirements under Sec. 271.6 and the discussion on pages 51-55 for the
elements of programmatic capability in the context of RCRA Subtitle C
authorization). Nevertheless, EPA may request, in individual cases,
that the Tribe provide a narrative statement or other documents showing
that the Tribe is capable of administering the program for which it is
seeking approval. See 59 FR 44339 (December 14, 1994).
D. Definitions
The key purpose of this proposed rulemaking is to clarify the
ability of Indian Tribes to obtain authorization from EPA of their
hazardous waste management programs under RCRA section 3006. The
proposal would further clarify that Indian Tribes may obtain Federal
grants under RCRA section 3011 to assist Tribes in developing and
implementing their authorized programs.
The proposal would provide this clarification through changes to
the governing definitions in 40 CFR 270.2 and 40 CFR 35.105. The most
significant of the changes is the proposed inclusion of ``Indian
Tribes'' within the list of governmental entities defined as ``States''
in 40 CFR 270.2. Under the Statute, both program authorization under
section 3006 and financial assistance under section 3011 are available
to States. Therefore, the proposed change to the regulatory definition
of ``States'' would make it clear that EPA interprets the Act as
providing EPA with sufficient authority to authorize and to issue
grants to qualified Indian Tribes.
EPA is also proposing to add to Sec. 270.2 new definitions for
``Indian Tribes'' and ``Indian Country.'' The proposed definition of
``Indian Tribe'' or ``Tribe'' would include any Indian Tribe, band,
group or community recognized by the Secretary of the Interior and
having a governmental body carrying out substantial governmental duties
and powers.
Second, ``Indian country'' would be defined as in 18 U.S.C. 1151,
to mean (A) all land within the limits of any Indian reservation under
the jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running throughout
the reservation, (B) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or without
the limits of a state, and (C) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running
through the same. EPA notes that the meaning of the term
``reservation'' must be determined in light of relevant case law. EPA
considers trust lands formally set apart for the use of Indian Tribes
to be ``Indian country'' even if the trust land has not been formally
designated as a ``reservation.'' See Oklahoma Tax Comm'n v. Citizen
Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991).
These definitions are important not only for determining what
entities may apply for Subtitle C authorization, but also for
determining the territorial and legal reach of a Tribe's authorized
program. They are also important in establishing the necessary
government-to-government relationship with Tribes, and in addressing
the issue of tribal regulatory authority. EPA requests comment on these
proposed definitions, and the appropriateness of extending to Tribes
the availability of Subtitle C
[[Page 30478]]
authorization and RCRA section 3011 grants.
Available Alternatives to Authorization
EPA recognizes that most Tribes will choose not to pursue Subtitle
C authorization at this time. Several mechanisms already exist whereby
Tribes may engage in a partnership with the Agency in implementing
hazardous waste management activities. These mechanisms include
cooperative agreements, Memoranda of Understanding and Memoranda of
Agreement. Under all these mechanisms, Indian Tribes can develop and
implement their hazardous waste regulatory authorities and exercise
their sovereign authority with respect to their environments. These
mechanisms may also provide Tribes opportunities to increase their
capacity to manage environmental programs by participating with EPA in
hazardous waste activities, while maintaining the government-to-
government relationship described in EPA's Indian Policy. Authorization
is distinguished from the other types of relationships, because it
would confer on the Tribal government the authority to operate its
program in lieu of EPA operating all or part of the Federal hazardous
waste program.
E. Funding
EPA recognizes that, assuming current funding levels remain the
same, the effect of this proposal could be to make available to Tribes
Federal funds that otherwise would be allocated only to State hazardous
waste programs. Tribes that assume the burdens of a RCRA hazardous
waste program assume these burdens in lieu of EPA acting directly, so
the Agency believes it is appropriate for Indian Tribes to obtain RCRA
section 3011 funds that are commensurate with these burdens.
While Congress explicitly authorized grants to municipalities
(including Tribes) under RCRA subtitle D, EPA does not believe it is
precluded from interpreting RCRA to authorize grants to authorized
Tribes under RCRA subtitle C section 3011. Section 3011 does not
provide for grants to municipalities because of the nature of these
grants, which are for the development of broad hazardous waste
programs. There is nothing in RCRA or the legislative history to
indicate that Congress intended to limit Tribal grants to only those
provisions for which municipalities may receive grants. Under the
statutory scheme, section 3011 grants are specifically designed to aid
in developing and implementing authorized hazardous waste programs.
Given the Agency's interpretation that RCRA section 3006 is properly
read to allow EPA to authorize qualifying Tribes to administer RCRA
programs in lieu of EPA, it follows that these Tribes should also be
eligible to receive grant funding under RCRA section 3011 to assist
``in the development and implementation of authorized * * * hazardous
waste programs.'' The Agency's interpretation is consistent with the
well established general principle of statutory construction that
ambiguous statutes should be construed in favor of Tribes. See, e.g.,
Ramah Navajo School Board v. Bureau of Revenue, 458 U.S. 832, 846
(1982); see also, F. Cohen, Handbook of Federal Indian Law, 224-25
(1982).
EPA requests comments that would assist it in allocating RCRA
section 3011 funds equitably to authorized States and Tribes. The
Agency is especially interested in suggestions that would mitigate any
potential negative effects on funding of authorized State programs.
F. Program Application Elements
Because of the uniqueness of Tribal governments, EPA is proposing
in this rule to modify some of the program application elements
required under Sec. 271.5 for Tribal applications. These modifications
are explained in detail below.
1. Program Description
The proposed rule adds a new subsection to Sec. 271.6 which
requires a Tribe to include a map, legal description, or other
information sufficient to identify the full extent of the lands over
which the Tribe is asserting jurisdiction. In addition, the Tribe would
identify in the Program Description the location of any generator,
storage, treatment or disposal facilities subject to RCRA Subtitle C,
including any facilities on fee lands owned by non-members. Finally, in
those instances where a Tribe asserts jurisdiction over hazardous waste
activities conducted by non-members on fee lands within reservation
boundaries, the proposal would require the Program Description to
identify clearly the activities and areas affected by such a claim of
jurisdiction, and to assert and explain how the activities of non-
members will have a serious and substantial effect on the health and
welfare of the Tribe.
2. Attorney General's Statement
EPA recognizes that the ``Attorney General'' designation in 40 CFR
271.7 may not be appropriate for all Tribes, since some Tribal
governments may not have an Attorney General. Therefore, the proposal
would add Sec. 271.27(a)(4), which clarifies that the requirement of an
Attorney General's Statement is satisfied for Indian Tribes when the
Statement is signed by the Tribal attorney or by an equivalent legal
counsel retained by the Indian Tribe for representation in matters
before EPA or the courts pertaining to the Indian Tribe's program. This
amendment adds sufficient flexibility to the existing procedures to
enable the necessary legal certifications to be prepared and reviewed,
without imposing the undue rigor of requiring a submission by an
attorney with a particular title, office, or position. The essential
consideration is that the Statement be signed by an attorney who has
been retained to represent the Tribe on matters pertaining to the
Tribe's program authorization. The Tribe's attorney should include in
the Statement an assertion that he/she has the necessary authority to
represent the Tribe with respect to the application, and to certify
that the laws of the Tribe provide adequate authority to carry out the
program.
3. Memorandum of Agreement
This proposal includes several modifications to the Sec. 271.8
provisions that describe the content of the Memorandum of Agreement
that is entered into by EPA and authorized States. This Memorandum
generally addresses such matters as the transfer of program documents
to the State upon authorization, as well as the type and frequency of
coordination and oversight that will occur after authorization of a
State.
40 CFR 271.16 requires that, in order to obtain authorization for
its hazardous waste program, States must have criminal enforcement
authority over ``any person'' committing certain enumerated acts and
have the authority to impose a fine of $10,000 per violation. Federal
law bars Indian Tribes from trying criminally or punishing non-Indians
in the absence of express authority in a treaty or statute to the
contrary. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). In
addition, the Indian Civil Rights Act prohibits any Indian court or
Tribunal from imposing for any one offense a criminal penalty greater
than $5,000 on Indians within its jurisdiction (25 USC 1302(7)).
The Agency realizes that requiring Tribes to demonstrate the same
criminal authority as States would affectively prohibit any Tribe from
obtaining program authorization. The Agency therefore proposes to add
provision 271.27(a)(5) so that Tribes are not required to exercise
comprehensive
[[Page 30479]]
criminal enforcement jurisdiction as a condition for hazardous waste
program authorization. Under this rule, Tribes are required to provide
for the timely and appropriate referral of criminal enforcement matters
to the Regional Administrator when Tribal enforcement authority does
not exist or is not sufficient (e.g., those concerning non-Indians or
violation meriting penalties over $5,000) This section also requires
that such procedures be established in the formal Memorandum of
Agreement with the Regional Administrator required by 40 CFR 271.8.
This approach is the same that the Agency has taken in the context of
Tribal programs under the SDWA and CWA.
It should be noted that, as in authorized States, EPA retains the
authority to take necessary enforcement action if an authorized Tribe
did not (or could not) take such action or did not enforce adequately
(e.g., did not or could not impose a sufficient penalty). EPA
emphasizes that this referral mechanism is available only in those
cases where the limitation on Tribal enforcement arises under Federal
law. A Tribe that encumbers its own enforcement authority with
limitations based on laws adopted by the Tribe would be subject to the
same ``adequacy of enforcement'' review standard that applies to States
under RCRA section 3006 and the part 271 regulations.
EPA seeks comment on whether the authorization requirements set out
for States in 40 CFR part 271 are appropriate for Tribes and whether
any of these requirements will inappropriately restrict Tribes from
seeking authorization. EPA also requests comment on proposed
Sec. 271.27(a), and particularly, the modifications proposed for an
Indian Tribe's Program Description, Attorney General Statement, and
Memorandum of Agreement submissions.
G. Partial Authorization Authority
1. Background
Under this proposal, Indian Tribes would be eligible to obtain
authorization from EPA to operate partial RCRA hazardous waste
programs. This aspect of the proposal introduces authority for Tribes
that is not now available to the States and Territories of the United
States which currently have or are eligible for RCRA Subtitle C
authorization. The proposal would amend 40 CFR Sec. 271.1(h), which
currently prohibits partial State hazardous waste programs from
operating under RCRA Subtitle C final authorization. The proposed rule
would exempt only Tribal hazardous waste programs which meet the
proposal's criteria from the effects of the current prohibition. Other
``States'' (i.e., States and Territories) would remain subject to the
partial program prohibition.
EPA does not interpret RCRA section 3006 to preclude the operation
of partial RCRA programs. The current regulatory prohibition in 40 CFR
271.1(h) was adopted as a policy matter within EPA's discretion in
1979, in the face of the Act's silence on the precise issue.
Indeed, when EPA developed its RCRA authorization regulations, the
Agency initially proposed that States could obtain partial
authorization. See 43 FR 4366 (February 1, 1978). The 1978 proposal
would have allowed States ``to receive partial authorization for
selected major components of the full hazardous waste program, but only
if the State meets the requirements of equivalency, consistency, and
enforceability for each such major component.'' Id. at 4368. Commentors
on the 1978 proposed rule voiced strong opposition to this proposal,
based primarily on the burden and confusion that would result to the
regulated community due to shared EPA/State implementation
responsibilities over partial programs. In the face of these comments,
EPA announced in the 1979 final rule the current partial program
prohibition. See 44 FR 34259, (June 14, 1979).
In enacting the Hazardous and Solid Waste Amendments (HSWA) of
1984, Congress added revisions to the section 3006 authority for State
program authorization. HSWA added language to section 3006(b) of the
Act that allows the Administrator to base his or her findings of a
state program's equivalency with the Federal program on the Federal
program in effect one year prior to the submission of the state's
application. While this language could be construed as a mandate that
States eventually adopt the entire Federal program, EPA believes that
the better view of the 1984 amendment's purpose was to afford States
some relief from the need to continually update their applications to
reflect recent changes in the Federal program. In effect, this
amendment provided states with a grace period, allowing states to defer
including Federal changes that occurred within one year of the
submission of their applications. Understood in this context, EPA does
not believe that the section 3006(b) revision was intended to address
the partial program issue. Therefore, EPA believes that it retains the
discretion to allow Indian Tribes to obtain partial program
authorization.
2. Rationale for Partial Tribal Programs
The Agency believes that there are compelling reasons for allowing
Indian Tribes to operate partial RCRA programs. Fundamentally, as set
out in the EPA Indian Policy, the Agency is committed to make every
reasonable effort to recognize the sovereignty of Indian Tribes and to
eliminate any administrative barriers to the Tribes' primary
administration of programs such as RCRA Subtitle C. EPA believes that
it is a reasonable step in implementing this important policy to remove
the barrier imposed by the current regulatory prohibition of partial
RCRA programs as it affects authorization of Indian Tribes. Otherwise,
EPA believes that few, if any Tribes would participate in RCRA Subtitle
C authorization.
Indian Tribes typically have much smaller populations than States,
and there are generally limited industrial and commercial operations
conducted within the Tribe's jurisdiction. This tends to limit not only
the likelihood of substantial hazardous waste generation activities
within Indian country, but it also limits the sources of revenues to
support the activities of Tribal governments. Therefore, Indian Tribes
would not typically possess the resources to develop and carry out a
full RCRA Subtitle C program. Particularly in those areas where the
full RCRA program requires special expertise (e.g., experts in
hydrogeology to oversee RCRA corrective actions), skills and resource
shortages common among Indian Tribes would preclude most Tribes from
participating in RCRA authorization, if partial authorization were not
an option. EPA believes that it would make little sense to require
Tribal governments to develop authorities and capabilities to regulate
facilities that are not now and are unlikely ever to be present on
Tribal lands.
EPA solicits comment on the removal of the Sec. 271.1(h) partial
program prohibition only for Indian Tribes. EPA recognizes that some
States and the Insular territories may believe that they also should be
allowed to obtain partial authorizations, because of their size,
limited involvement with hazardous waste operations, or limited need
and capability to operate a full RCRA hazardous waste program. While
EPA understands these interests, the Agency believes that these factors
are present to a greater degree with Indian Tribes than with the States
and Territories. In addition, the EPA Indian Policy is a distinguishing
factor which supports this limited proposal, since it represents EPA's
commitment to eliminate
[[Page 30480]]
administrative impediments to authorizing Tribal programs. Finally, EPA
is concerned that a more general relaxation of the partial program
prohibition would result in many States either electing not to assume
new RCRA program requirements which they view as burdensome (thereby
leaving EPA with the most significant implementation burdens), or
transferring previously authorized program components back to EPA.
3. Criteria for Partial Program Authorization
Today's proposed rule includes criteria that would govern the
evaluation of Tribes' requests for partial program authorization. This
section explains these criteria.
a. Composition and size of the regulated community. EPA believes
that the most critical consideration in evaluating the appropriateness
of a partial program authorization is the composition and size of the
regulated community. The components of a Tribal hazardous waste
management program should reflect the types of facilities and the
magnitude of hazardous waste operations that are actually present, or
likely to establish operations, within the Tribal jurisdiction. This
criterion should be considered both in the context of the authorities
and capabilities which the Tribe should demonstrate in its application,
and in evaluating the allocation of regulatory oversight burdens
between a Tribe and EPA.
For example, if a Tribe's regulatory universe consists solely of
hazardous waste generators and transporters, this proposal would permit
the Tribe to demonstrate in its application the authorities and
capability to regulate these types of facilities. Such a Tribe would
need to develop regulatory counterparts to EPA's generator standards in
40 CFR parts 262 and 268, as well as transporter standards
corresponding to EPA's part 263 requirements. However, the application
would not need to include regulatory authorities for hazardous waste
landfills, incinerators, or other types of hazardous waste management
facilities which do not currently exist, and which are not likely to
ever operate within a Tribe's territorial jurisdiction.
EPA believes that partial authorization is warranted only in
instances where the Tribe has responsibility for regulating all the
facilities within a particular program. For example, Tribes which are
authorized solely for generators and transporters would be responsible
for all persons or entities that fall into those programs. Although it
would be appropriate for EPA to provide limited technical expertise and
to implement its statutory responsibilities under HSWA at facilities
regulated by the Tribal program, it would not be appropriate for EPA to
assume nearly all the regulatory burdens at such sites.
The omission from a Tribe's application of an entire class of
existing facilities may raise questions about the appropriateness of a
partial program authorization. In such cases, EPA would assess the
regulatory burden associated with the Tribe's proposed program, and the
burdens which EPA would retain as a result of regulating the class of
facilities omitted from the Tribal program. On a case-by-case basis,
EPA would determine whether the significant sovereignty interests
reflected in authorization and the regulatory burdens being assumed by
the Tribe outweigh the circumstances of EPA retaining direct
implementation responsibilities for a class of facilities. However,
where the omission of such a class of facilities would result in EPA
bearing a disproportionate regulatory burden, this proposal would view
this as grounds for a negative determination on that Tribe's request
for partial authorization. EPA solicits comments on how it should
strike the appropriate balance between Tribal and EPA interests when
evaluating partial program applications that involve some, but not all,
of a Tribe's regulated community.
b. Extent to which program components are severable. EPA's 1979
decision to prohibit partial RCRA programs was based primarily on
concerns which the regulated community identified about the confusion
which would result under a system of joint State and EPA
implementation. This concern remains today, and is perhaps even more
prominent than in 1979, given the increased growth and complexity of
the RCRA Subtitle C management program since that date. On the other
hand, the interest of avoiding dual RCRA programs should not become an
insurmountable obstacle to EPA's implementation of its Indian Policy,
particularly since dual State/EPA implementation of Subtitle C has
become fairly commonplace under the mandate of the 1984 HSWA
amendments.
EPA believes that the severability of the program elements applied
for by a Tribe is an important criterion in evaluating the merits of a
Tribe's request for a partial program authorization. In this context,
``severability'' means that there is a distinct set of requirements for
which the Tribe is exclusively responsible for program implementation.
Severability is important in avoiding or minimizing the confusion and
burdens arising from joint Tribal/EPA implementation of RCRA.
Therefore, a Tribal application will be evaluated to determine that, as
far as possible, the Tribe's application includes the authorities that
are needed to fully regulate the class or classes of facilities for
which the Tribe is seeking authorization. When this occurs, there
should be minimal confusion insofar as the particular roles and
responsibilities of the Tribe and EPA.
EPA recognizes that total severability of roles and
responsibilities may not be fully achievable. Nevertheless, an
acceptable partial program application is one that tends to clarify,
not confuse, regulatory responsibilities for hazardous waste management
activities that the Tribal program would regulate.
To meet this criterion, a Tribe seeking authorization, for example,
to regulate hazardous waste generators would need to include
authorities in its program corresponding to regulations found in
several distinct parts of Volume 40 of the Code of Federal Regulations
(CFR). While management standards specific to generators are set forth
in 40 CFR part 262, generators also become subject to RCRA permit
requirements when they store or treat hazardous wastes in tanks or
containers for a period exceeding 90 days (or 180 days for certain
small quantity generators). In these cases, counterparts to part 264
general facility, tank, and container permitting standards might also
be appropriate. Likewise, generators are subject to certain waste
analysis, certification, and other requirements included in EPA's Part
268 Land Disposal Restrictions (LDRs), and these additional generator
requirements should also be reflected in the Tribe's legal authorities.
EPA requests comment on the proposed criterion under which maximum
severability of Tribal and EPA regulatory responsibility for hazardous
waste management activities would be a persuasive factor in evaluating
Tribes' requests for partial program authorization. Under this
proposal, EPA could recognize exceptions for particular facility
requirements (e.g., HSWA corrective action) where direct EPA oversight
is needed to ensure the availability of a special technical expertise
or resources which a Tribe could not reasonably be expected to develop
and retain. This criterion is discussed in the section which follows.
c. Extent to which EPA-retained elements require special expertise.
As discussed in the preceding section, the
[[Page 30481]]
requirement of special implementation expertise may be a circumstance
warranting EPA's retention of direct oversight responsibilities for a
particular facility, of for a class of facilities. Thus, under this
proposal, EPA could approve a Tribal program that lacked regulatory
authorities to oversee existing landfills, land treatment units,
surface impoundments, or waste piles, where the Tribe's application
demonstrates that the regulation of these facilities would require the
substantial involvement of hydrogeologists or other specialists that
are not reasonably available to the Tribe. These areas of expertise
could come into play, for example, in the oversight of Subtitle C
facilities' groundwater monitoring and protection requirements, and in
overseeing the HSWA corrective action mandates to address releases of
hazardous constituents from the solid waste management units of
facilities seeking RCRA permits (40 CFR part 264, subpart F). In
addition, the need for special EPA expertise could also be present in
instances where a treatment facility is seeking authorization to
operate treatment processes that require a significant chemical or
mechanical engineering expertise to evaluate and permit.
EPA believes that it should scrutinize closely those requests for
partial program authorization that propose to exclude authority to
regulate an entire class of existing facilities because of a need for
special expertise. In many such instances, the special expertise might
only be needed occasionally, and could be provided by EPA or by
contractor as technical support to the Tribe.
More typically, special EPA expertise may be asserted as a basis
for EPA's retention of its HSWA authority for facilities otherwise
subject to a Tribe's authorized RCRA Subtitle C program. The special
technical expertise associated with the HSWA corrective action and LDR
programs may justify joint EPA/Tribal administration of RCRA at
facilities with corrective action needs or with significant involvement
in highly technical treatment processes. Under this proposal, EPA could
authorize partial Tribal programs that excluded HSWA corrective action
and LDR treatment standards, and the Tribe could be authorized to
regulate the non-HSWA aspects of the facilities' operations.
EPA requests comments on the proposal to include special EPA
expertise as a criterion for authorizing a partial Tribal program. The
Agency also solicits specific comments that would aid EPA in
identifying those elements of the RCRA Subtitle C or HSWA regulatory
programs that are suitable candidates for EPA retention, and those that
should be included within a Tribe's authorized program.
d. Extent to which there is a bona-fide waste management program
for which the Tribe possesses the necessary capability.
The final criterion proposed in this notice requires the Tribe to
demonstrate to EPA's satisfaction that there is a real and significant
presence of regulated hazardous waste management activities within the
Tribe's jurisdiction, so that the Tribe's hazardous waste management
program will constitute a bona-fide regulatory program. This criterion
also requires the Tribe to demonstrate that it has the necessary
capability to administer the partial program for which it is seeking
authorization.
The requirement of a real and significant involvement with
hazardous waste operations is not intended to suggest a quantity
threshold on the amount of waste generated or the numbers of facilities
that must be present. Rather, this requirement is intended to connote
that there must be a real or imminent universe of hazardous waste
management activities subject to regulation. As such, a speculative
possibility or interest does not meet this criterion.
Further, to be authorized, a program must also be able to
demonstrate the necessary capability to oversee the universe of
regulated hazardous waste activities, and administer the program's
legal authorities and guidance. Capability is a concept that addresses,
among other factors, the mix of resources and skills which a Tribe will
need to implement successfully its hazardous waste program. EPA
currently applies capability criteria to States that seek RCRA Subtitle
C authorization. The capability implications of this proposal are
discussed below in section IV.H.6 of this preamble.
4. Minimal Program Considerations
EPA believes that there are certain RCRA hazardous waste program
elements which, at a minimum, must be present in every application for
a partial RCRA program authorization. In other words, there is a
``floor set'' of program elements, which if not included in an
application, could constitute grounds for rejection of a Tribal program
application.
EPA proposes that Tribal counterparts to the following Federal
program elements would constitute the minimal program for which a Tribe
could seek partial program authorization:
The appropriate subset of definitions in 40 CFR part 260
corresponding to the hazardous waste program within the Tribe's
application;
Waste identification requirements in 40 CFR part 261;
Generator requirements in 40 CFR parts 262 and 268; and
Transporter requirements in 40 CFR part 263.
Additionally, Interim Status Standards, 40 CFR part 265, cover two
types of units, newly regulated units (recently included as a RCRA
Subtitle C facility due to new regulations) and non-notifiers (such as
those operating as illegal Subtitle C units which become identified
through inspections or other means). Units identified as subject to
RCRA Subtitle C which were not previously regulated will be subject to
parts 264 and 265 closure requirements. U.S. EPA will be responsible
for permitting and/or closure of those units subject to part 265 for
Tribes that choose not to adopt these regulations as part of their
authorized program. Tribes that become authorized for part 265 will be
responsible for permitting and/or closure (whichever is appr
FR Doc. 96-15186 Authorization of Indian Tribe's Hazardous Waste Programs Under RCRA Subtitle C
opriate) of
these units.
EPA requests comments on the appropriateness of these minimum
program elements for defining an acceptable partial RCRA Subtitle C
program for Tribes.
5. Financial Assurance Requirements for Tribally Owned and Operated
Facilities
RCRA Subtitle C requires owners and operators of hazardous waste
treatment, storage, and disposal facilities to provide financial
assurance for closure, post-closure care, liability for injury to third
persons and corrective action.
The Federal financial assurance regulations exempt State and
federally-owned or operated facilities from the financial assurance
requirements (See 40 CFR 264.140(c)), because it is EPA's belief that
State and Federally-owned or operated facilities will always have
adequate resources to conduct closure and post-closure care activities
properly (See 45 FR 33154, 33198, May 19, 1980). Notwithstanding that
today's proposal would give Tribes, like States, the authority to
operate a hazardous waste regulatory program in lieu of the Federal
program, it would not change the applicability of the existing
requirements by exempting tribally-owned or operated facilities from
the financial assurance requirements. Tribally-owned or operated
facilities subject to an authorized Tribal hazardous waste regulatory
program, therefore, would continue to have to comply with the financial
assurance
[[Page 30482]]
requirements like all other owners and operators of treatment, storage
or disposal facilities, private or public, that are not State or
federally-owned or operated facilities.
EPA is not proposing to extend the State/Federal exemption to
Tribes because EPA believes that the financial resources that would be
available to a specific Tribe in the event closure, post-closure, or
liability obligations were triggered should be evaluated. EPA believes
that Tribal members will not enjoy an equivalent degree of protection
from a tribally operated program unless there are assurances provided
that there will be adequate resources to address these obligations.
Because at this time many Tribes may not have the tax base or other
means of raising revenue as do the States and the Federal government,
EPA believes that, as a general matter, it would not be prudent to
extend to Tribally owned or operated facilities the financial assurance
exemption. The financial assurance requirements ensure that certain
protections will be available to persons who might be negatively
affected by a facility. EPA believes that financial compensation should
be available to members of Indian Tribes (as they are for citizens of
States) for third party injuries or for clean-ups if needed. The costs
associated with closure and post-closure care activities, not to
mention liability compensation to injured parties, could greatly burden
Tribal administrations and, if unavailable, could compromise Tribal
members' health and environment.
EPA is, however, soliciting comment on the possibility of
developing a special financial test for tribally owned/operated
facilities subject to RCRA Subtitle C, identical or similar to that
developed for MSWLFs Local Government (``LOGO'') Test under
Sec. 258.74(f). The ``LOGO'' consists of a (1) financial component, (2)
a public notice component, and (3) a record keeping and reporting
component. A local government must satisfy each of the three components
to pass the test and must pass the test on an annual basis.
EPA is also interested in receiving comments on other options that
would provide the same level of protection to tribal citizens currently
afforded by the financial requirements of Sec. 264.140(c).
6. EPA's Retained Authority
Under this proposal, EPA would retain responsibility for
implementing the RCRA and HSWA program authorities not included in a
Tribe's authorized partial program. For example, if a Tribe received
authorization for only a generator, transporter, and non-HSWA storage
facility program, EPA would retain responsibility for regulating any
incinerators, landfills, or other treatment or disposal facilities, and
for implementing the HSWA corrective action requirements at all TSD
facilities. This situation contrasts significantly from that which
occurs in States, where partial program authorizations are not
available. In authorized States, for example, the States regulate all
types of treatment, storage, or disposal facilities (TSDFs). In these
States, EPA implements only the HSWA program, and only until the States
receive authorization for the HSWA authorities. EPA emphasizes that
this proposal would not diminish the scope of the overall RCRA Subtitle
C program applicable in Indian Country. A Tribe's approved partial
program components, considered together with the program components
retained by EPA, would define a complete RCRA hazardous waste program
with the authority and flexibility to respond to the full gamut of
facilities, releases, or other circumstances.
7. Capability Considerations
In administering the Subtitle C authorization program under RCRA
section 3006, EPA realizes that a State or Tribal hazardous waste
management program cannot be judged solely by whether it has equivalent
legal authorities and whether it can provide acceptable forms of
documentation. Indeed, EPA's overarching objective in authorization is
to approve quality programs that are protective of health and the
environment. Therefore, EPA looks beyond the elements of a State's
authorities (i.e., its legal codes, policies, forms) and evaluates the
capability of the State agencies to implement and manage their
substantive Subtitle C program responsibilities.
Under current policies and procedures, EPA conducts a capability
assessment both when a State seeks its initial or ``base program''
authorization, and subsequently when the State adopts program revisions
which the EPA Region determines may have major impacts on the State's
hazardous waste program. The adoption of rules bringing a significant
class of new generators or permitted facilities into the State's
program, or the adoption of the HSWA corrective action program, are
examples of revisions that would likely trigger a new capability
assessment.
Capability is a fluid concept that does not typically lend itself
to precise measurement. While capability can fluctuate in the short-
term due to a response to budget cuts or loss of key staff, EPA's goal
in conducting capability assessments is to focus on the overall, long-
term performance of a State's program, and the expected future
performance. The emphasis is placed on a program's long-term (typically
3 years or more) effectiveness, its ability to meet its commitments
over the long term, indicators of constant improvement over time, as
well as consistency in performance. Critical program areas that are
assessed include enforcement, permitting, corrective action, and
program management. In each area, current guidance suggests factors
that are indicative of a capable program, and factors that may be
indicative of a capability problem. For example, in the enforcement
area, the assessment would examine a State's enforcement strategies,
its record for completing quality inspections, its violation
classification plan and record, its record of taking timely enforcement
responses that are appropriate to the severity of violations, and its
proven ability to meet its grant commitments in the enforcement area.
In the management area, EPA examines whether sufficient resources are
committed to the hazardous waste program, whether there is a proper mix
of staff and skills to carry out the program, whether the State
provides appropriate training, and whether the State maintains the
necessary information management systems to oversee the program.
Additional criteria are suggested for the permitting and corrective
action areas. See RCRA State Authorization Capability Assessment
Guidance, revision dated October, 1991.
EPA is proposing to apply the same capability assessment criteria
to Tribal programs that it currently applies to States. However,
capability will be evaluated only with respect to the program
components for which an Indian Tribe is seeking authorization. As is
currently the practice with States, the assessment should be conducted
at the time of a Tribe's initial authorization application, as well as
at subsequent times when the Tribe is adopting program revisions that
may have a significant impact on its authorized program.
Because of the availability in this proposal of partial program
authorization, capability considerations may have quite different
effects for Indian Tribes as they do for States. First, capability may
fundamentally affect the scope of the Subtitle C program for which a
Tribe seeks authorization. Under this proposal, a Tribe need not
develop capabilities to permit or oversee all types of RCRA facilities.
In some instances, the Tribe may never need to
[[Page 30483]]
concern itself with certain types of facilities, while in other
instances, the skills and capabilities may be more appropriately
retained and implemented by EPA. In either case, the lack of a
particular capability would not necessarily be viewed as an impediment
to authorization; rather, it may only affect the scope of the program
for which the Tribe would be eligible to obtain authorization. In
practice, Tribes would be expected to limit their program applications
to those areas where they can demonstrate the requisite capability. EPA
would also have the discretion to authorize less than all the program
components applied for by a Tribe, where capability issues specific to
one or more components of an application are not resolved to EPA's
satisfaction.
The relationship of capability to partial programs is a very
significant aspect of this proposal. This approach to capability
assessments is consistent with the EPA's Indian Policy mandate that EPA
remove administrative impediments to Tribal primacy in administering
environmental programs such as RCRA.
EPA believes, however, that there are limits on the extent to which
it should tailor a program authorization to a Tribe's demonstrated
capability. A hazardous waste program that is exceedingly narrow in
scope may not be appropriate for authorization, despite the importance
attached to authorization as a means of recognizing a Tribe's
sovereignty. Therefore, EPA believes that the minimal program
considerations discussed above in section IV.H.4 of this preamble are
helpful in determining the minimal capabilities that must be present to
warrant an authorization review. Likewise, in cases where the
allocation of program burdens that would result from a partial
authorization would leave EPA with disproportionate and substantial
responsibilities, EPA may also withhold partial authorization. This
follows from the fact that the investment by EPA of resources in
overseeing an approved program of very narrow scope would only drain
resources that might be better used by EPA to discharge its own
implementation responsibilities.
EPA's evaluation of capability may also consider if applicable, the
relationship between the existing or proposed Tribal agency that will
implement the hazardous waste program and any potential regulated
Tribal entities. It is not uncommon for a Tribe to be both regulator
and regulated entity, which may result in a potential conflict of
interest. Independence of the regulator and regulated entity best
assures effective and fair administration of a hazardous waste program.
Tribes will generally not be required to divest themselves of ownership
of any regulated entities to address any potential conflict. Nor is the
Agency intending to limit Tribal flexibility in creating structures
that will ensure adequate separation of the regulator and regulated
entity. Instead, this discussion is intended to alert Tribes at an
early date about potential problems in obtaining program authorization.
8. Review Standards
While EPA is today proposing to allow Indian Tribes to obtain
partial RCRA program authorization, the Agency is not proposing any
alteration to the review standards that will be used to evaluate the
merits of Tribes' applications. That is, unless otherwise noted, the
Tribe's application must demonstrate that each component of the Tribe's
partial program meets the statutory authorization criteria.
Specifically, the Tribe must show that each program component is
equivalent to the corresponding Federal program requirements. Each
component must be consistent with the Federal program and with the RCRA
Subtitle C programs applicable in other authorized states. In addition,
the Tribe must show that the components are no less stringent than the
corresponding Federal program requirements, except for those
requirements (e.g. civil or criminal enforcement) to which the Tribe
agrees in the MOA to transfer to EPA.
To the extent that an Indian Tribe's partial program would include
permitting authority for treatment, storage, or disposal facilities
(TSDFs), the Tribe's program would also be required to meet the
statutory requirements for public participation in the issuance of RCRA
permits. RCRA also requires, pursuant to section 3006(f), that the
Tribes demonstrate that their program provides for the public
availability of information regarding hazardous waste management
facilities and sites, in substantially the same manner, and to the same
degree, as EPA would provide information to the public under the
Federal Freedom of Information Act, 5 U.S.C. 301, 552, 553, 40 CFR part
2.
9. Obligation to Adopt Program Revisions
The current authorization regulations at 40 CFR part 271 impose a
continuing obligation on authorized states to update their authorized
programs to reflect revisions made to the Federal regulatory program.
Under 40 CFR 271.21, there are schedules imposed by which States must
adopt counterparts to Federal program changes, and procedures for
submitting these program revisions to EPA for authorization. In
addition, Sec. 271.21(a) requires that an authorized State notify EPA
of any proposed modifications to its basic statutory or regulatory
authority, as well as to its forms, procedures, or priorities. The
obligation to keep EPA informed of proposed program changes applies
both to changes proposed in response to Federal program revisions, and
to proposed changes that are initiated solely as a matter of state law
or policy.
EPA proposes that these same obligations would apply to Indian
Tribes' authorized partial programs. Tribes would be required to notify
EPA of any significant, proposed changes to their basic legal
authorities, policies, forms, or priorities, and to modify their
programs in response to Federal program revisions according to the
schedules in Sec. 271.21. However, the obligation to modify a partial
program and seek EPA authorization of revisions would be more limited
than in the case of other authorized States. An Indian Tribe's
obligation would extend only to Federal revisions which directly affect
the components of the Tribe's authorized program. For example, a
partial program which regulates only RCRA generators and transporters
would need to undergo a revision to address a change to the Hazardous
Waste Uniform Manifest promulgated by EPA, since that change affects
directly the waste management requirements for generators and
transporters. However, the same partial program would not need to
undergo a revision to address new Federal standards for incinerator
emissions, since incinerators are beyond the scope of the approved
partial program.
EPA recognizes that there is the potential for some confusion in
identifying the extent to which approved partial programs must undergo
revision to address Federal program changes. The Agency believes that
Tribes and the EPA regions will need to confer closely on Federal
program revisions, and reach an understanding on those that will
trigger the need for a Tribal program modification. An agreement on the
scope of the Tribe's responsibility to modify its approved program
should be included in the annual workplan that would be negotiated by
EPA and the Tribe in conjunction with the Tribe's receipt of RCRA 3011
grant funds to administer its authorized hazardous waste program. Of
course, Federal program changes that are determined
[[Page 30484]]
not to affect the Tribe's partial program would remain EPA's
responsibility to implement. Therefore, there would be no loss of
overall program coverage, since the Tribe's partial program and the
program retained by EPA should together constitute a full RCRA Subtitle
C program.
EPA requests comment on the proposal to subject Indian Tribe's
partial programs to the same review standards and schedules for program
modifications that apply currently to States. The Agency is
particularly interested in comments that suggest ways to reduce the
potential for confusion in implementing the review of partial programs
and in defining Tribes' responsibilities to update their partial
programs.
V. Other Regulatory Requirements
A. Compliance with Executive Order
Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or state,
local or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA believes that today's proposed rule raises a novel policy
issue, one which arises out of the President's priority to build
relationships with Tribal governments.
EPA has concluded that this rule is ``significant'' and is
therefore subject to OMB review pursuant to Executive Order 12866. In
addition, EPA believes that today's proposed rule is consistent with
the regulatory philosophy and principles identified in the Executive
Order.
B. Regulatory Flexibility Act
Section 603 of the Regulatory Flexibility Act (the Act) (15 U.S.C.
8091 et seq. Pub. L. 96-534, September 19, 1980) requires EPA to
prepare and make available for comment a regulatory flexibility
analysis in connection with rulemaking. The initial regulatory
flexibility analysis must describe the impact of a proposed rule on
small business entities. If, however, a regulation will not have a
significant impact on a substantial number of small business entities,
no such analysis is required.
EPA has determined that this proposal will not impact significantly
a substantial number of small business entities. Therefore, a
regulatory flexibility analysis is not required.
EPA's determination of no significant impact is based on the fact
that this proposal affects only the determination of what government
entity shall administer the RCRA program in Indian country. It does not
affect the regulatory requirements to which hazardous waste management
facilities, including any small business entities, are subject.
This proposed regulation, if promulgated, does not require the
Indian Tribes to obtain authorization to operate a hazardous waste
program. The decision whether to obtain authorization rests with each
individual Indian Tribe. If a Tribe determines that obtaining
authorization to operate a hazardous waste program will not be
advantageous, including economically advantageous, to the Tribe, the
Tribe may decide not to seek authorization. In addition, EPA believes
that the number of Indian Tribes that will apply for authorization to
operate a hazardous waste program under this proposed rule, if
promulgated, will be small as compared with the total number of Indian
Tribes potentially eligible for authorization.
Notwithstanding the voluntary nature of the authorization, the
Agency also considers alternatives to a full program authorization. As
an alternative to obtaining authorization to operate a full hazardous
waste program, the Agency is proposing to allow a Tribe to apply for
and receive authorization to operate a partial hazardous waste program.
Allowing a Tribe the option to apply for and obtain authorization to
operate a partial hazardous waste program will lessen the impact, if
any, on the Tribe as a result of this proposed rule.
The proposed regulation will not have a significant adverse impact
on a substantial number of small businesses or small organizations.
Since RCRA already imposes requirements on all owners and operators of
hazardous waste treatment, storage, and disposal facilities in Indian
country, EPA believes that the proposed rule, if promulgated, will not
add requirements beyond those already imposed under the Federal RCRA
requirements. Although it is conceivable that an Indian Tribe could
impose greater requirements upon an owner or operator of a hazardous
waste facility, such situations are likely to be rare. Moreover, any
additional impacts, including economic impacts, resulting from
implementation of this proposed rule, if promulgated, is expected to be
negligible, since Tribal regulation of these activities is limited to
areas within Tribal jurisdiction.
Therefore, pursuant to section 605(b) of the Regulatory Flexibility
Act, 5 U.S.C. 605(b), the Administrator certifies that this proposed
rule will not have a significant economic impact on a substantial
number of small entities.
C. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1778.01) and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2137); 401 M St., SW., Washington, DC 20460 or by calling (202) 260-
2740.
In order to extend to Indian Tribes the opportunity to become
authorized to administer hazardous waste programs in lieu of EPA, EPA
needs to make a determination that the proposed program fully meets
federal criteria. In general, to obtain authorization, Tribes must meet
the same criteria as the States as outlined in 40 CFR part 271,
including a demonstration of capability, which is assessed in the same
manner as those from States.
To make a final determination, EPA must collect information in the
form of an application from Tribes. Pursuit of authorization is
entirely voluntary, and the universe of respondents involved in this
information collection will be limited to those Tribes seeking approval
of their hazardous waste programs. However, interested Tribes must
submit all of the required information to EPA in order for EPA to make
a final determination. The information which Tribes would submit is
public information; therefore, no problems of confidentiality or
sensitive questions arise.
Each respondent would only have to respond once, and the EPA is
estimating the number of responses at six per year for the three year
period covered by this ICR, for a total of eighteen. The
[[Page 30485]]
projected annual cost and hour burden per respondent for the submittal
of an application is approximately 358 hours, at a cost of $7,990. The
projected totals for all eighteen estimated respondents over three
years are approximately 6,444 hours and $143,832. In addition, cost
estimates for the annual respondent reporting and recordkeeping per
respondent range from $219 (low end) to $6,369 (high end). The
projected respondent reporting and recordkeeping total range, also with
six respondents a year for three years, is from $3,942 to $114,642.
These costs represent start-up or capital costs. There are no
operation and maintenance reporting or purchase of services costs
associated with the proposed RCRA Subtitle C Indian Authorization Rule.
Given these parameters, the bottom line respondent burden and cost
estimate is for 6,444 hours and ranges from $147,774 to $258,474 over
three years.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR ch. 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2137); 401 M St., SW., Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., NW., Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after June 14, 1996, a comment to OMB is
best assured of having its full effect if OMB receives it by July 15,
1996. The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995 (the
Act), Pub. L. 104-4, which was signed into law on March 22, 1995, EPA
generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year. When such a statement is required for EPA
rules, under section 205 of the Act EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, including tribal governments, it
must develop under section 203 of the Act a small government agency
plan. The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements.
The Act generally excludes from the definition of a ``Federal
intergovernmental mandate'' (in sections 202, 203, and 205) duties that
arise from participation in a voluntary Federal program. Tribal
requests for authorization of their RCRA Subtitle C programs are
voluntary and impose no Federal intergovernmental mandate within the
meaning of the Act. Rather, by having its hazardous waste program
authorized, a Tribe gains the authority to implement its hazardous
waste program in lieu of the federal hazardous waste program within its
jurisdiction. Thus, because today's rule does not constitute a
``Federal intergovernmental mandate'' under the Act, EPA has not
conducted the analyses required by section 202 and 205 of the Act.
As to section 203 of the Act, the authorization of a Tribal program
will not significantly or uniquely affect small governments other than
the applicants. As to the applicants, Tribes have received notice of
the requirements of an authorized program (through this rulemaking
process), and will have meaningful and timely input into the
development of their individual program requirements throughout the
authorization process. The Tribes therefore are fully informed as to
compliance with the authorized program. Thus, any applicable
requirements of section 203 of the Act have been satisfied.
List of Subjects
40 CFR Part 35
Environmental protection, Hazardous waste.
40 Parts 270 and 271
Environmental protection, Administrative practice and procedure,
Hazardous waste, Indians-lands, Reporting and recordkeeping
requirements.
Dated: May 20, 1996.
Carol M. Browner,
Administrator.
Therefore, it is proposed that 40 CFR parts 35, 270 and 271 be
amended as follows:
PART 35--STATE, TRIBAL AND LOCAL ASSISTANCE
Subpart A--Financial Assistance for Containing Environmental
Programs
1. The authority citation for part 35, subpart A, continues to read
as follows:
Authority: Secs. 105 and 301(a) of the Clean Air Act, as amended
(42 U.S.C. 7405 and 7601(a)); secs. 106, 205(g), 205(j), 208, 319,
501(a), and 518 of the Clean Water Act, as amended (33 U.S.C. 1256,
1285(g), 1285(j), 1288, 1361(a) and 1377); secs. 1443, 1450, and
1451 of the Safe Drinking Water Act (42 U.S.C. 300j-2, 300j-9, and
300-11); secs. 2002(a) and 3011 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 (42
U.S.C. 6912(a), 6931, 6947, and 6949); and secs. 4, 23, and 25(a) of
the Federal Insecticide, Fungicide and Rodenticide Act, as amended
(7 U.S.C. 136(b), 136(u) and 136w(a)).
2. Section 35.105 is amended by adding a sentence to the end of the
definition of ``Eligible Indian Tribe,'' and by revising the definition
of ``Indian Tribe'' to read as follows:
Sec. 35.105 Definitions.
* * * * *
Eligible Indian Tribe means, * * * For purposes of the Resource
Conservation and Recovery Act Subtitle C, any federally recognized
Indian Tribe
[[Page 30486]]
that meets the requirements set forth at Sec. 35.515.
* * * * *
Indian Tribe means, for purposes of the Public Water System
Supervision, Underground Water Source Protection, or Hazardous Waste
Management grants, any Indian Tribe, band, group, or community
recognized by the Secretary of the Interior and having a governmental
body carrying out substantial governmental duties or powers over a
defined area. For purposes of grants under the Clean Water Act, the
term ``Indian Tribe'' means any Indian Tribe, band, group, or community
recognized by the Secretary of the Interior and having a governmental
body exercising substantial governmental duties and powers over a
Federal Indian reservation.
* * * * *
Sec. 35.500 [Amended]
3. In Sec. 35.500 by removing the words ``(as defined in section
1004 of the Act).''
4. Section 35.515 is added under the heading ``Hazardous Waste
Management'' (Section 3011) to read as follows:
Sec. 35.515 Eligible Indian Tribes.
The Regional Administrator may award Resource Conservation and
Recovery Act section 3011(a) grants to Indian Tribes that meet the
definition of ``Indian Tribe'' set forth in 40 CFR 35.105 and that have
submitted the information described at 40 CFR 271.27(a)(3)(ii).
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
The authority citation for part 270 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
5. In Sec. 270.2, by revising the definition of ``State,'' and by
adding in alphabetical order definitions for ``Indian Tribes'' and
``Indian country'' to read as follows:
Sec. 270.2 Definitions.
* * * * *
Indian country means: (1) All lands within the limits of any Indian
reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and including rights-of-way
running through the reservation;
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights of way running through the same.
* * * * *
Indian Tribe means any Indian Tribe, band, nation, or community
that is recognized by the Secretary of the Interior and that has a
governmental body exercising substantial governmental duties and
powers.
* * * * *
State means any of the 50 States, the District of Columbia, Guam,
the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa,
and the Commonwealth of the Northern Mariana Islands. For purposes of
Sections 3006 and 3011 of RCRA, the term State also extends to Indian
Tribes.
* * * * *
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE AND TRIBAL
HAZARDOUS WASTE PROGRAMS
The authority citation for part 271 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a) and 6926.
6. In Sec. 271.1 by revising paragraph (h) and adding paragraph (k)
to read as follows:
Sec. 271.1 Purpose and scope.
* * * * *
(h) Partial State programs are not allowed for programs operating
under RCRA final authorization, except as provided in Sec. 271.27 for
partial programs operated by Indian Tribes. However, in many cases
States will lack authority to regulate activities in Indian country.
This lack of authority does not impair a State's ability to obtain full
program authorization in accordance with this subpart, i.e., inability
of a State to regulate activities in Indian country does not constitute
a partial State program. EPA will administer the program in Indian
country if neither the State or Indian Tribe has program authority.
* * * * *
(k) The substantive provisions and procedures specified in this
subpart for State program submissions, and for EPA's approving,
revising, and withdrawing authorization of State programs apply to
programs operated by Indian Tribes. Additional substantive and
procedural requirements that are applicable only to programs operated
by Indian Tribes are set forth at Sec. 271.27 of this subpart.
7. By adding Sec. 271.27 to read as follows:
Sec. 271.27 Requirements for Indian Tribe Programs.
(a) The substantive requirements and procedures established in
Subpart A for State hazardous waste programs shall apply to Indian
Tribe programs, except that:
(1) The disallowance of partial RCRA programs contained in
Sec. 271.1(h) shall not apply to partial Indian Tribe programs that
meet the criteria in paragraph (b) of this section.
(2) The Tribal Chairman or equivalent official shall be substituted
for the Governor of the State in requesting program authorization under
Sec. 271.5(a)(1).
(3) (i) The Program Description discussed in Sec. 271.6 shall also
include a map, legal description, or other information sufficient to
identify the geographical extent of the Indian country over which the
Indian Tribe seeks jurisdiction. This information shall also identify
the location of any generator, transporter, and treatment, storage, or
disposal facility subject to RCRA Subtitle C requirements.
(ii) The Program Description discussed in Sec. 271.6 shall also
include a demonstration that the Tribe; is recognized by the Secretary
of the Interior; has an existing government exercising substantial
governmental duties and powers; has adequate civil regulatory
jurisdiction over the subject matter and entities to be regulated; and
is reasonably expected to be capable of administering the federal
environmental program for which it is seeking authorization. If the
Administrator has previously determined that a Tribe has met these
prerequisites for another EPA program authorization, then that Tribe
need provide only that information unique to the RCRA hazardous waste
program.
(4) (i) The Tribal Legal Certification (the equivalent to the
Attorney General's Statement described in Sec. 271.7) shall be
submitted and signed by the Tribal attorney or by an equivalent
official retained by the Indian Tribe for representation in matters
before EPA or the courts pertaining to the Indian Tribe's program. The
Certification shall include an assertion that the attorney has the
authority to represent the Tribe with respect to the Tribe's
authorization application.
(ii) Where an Indian Tribe asserts its jurisdiction over activities
on non-member fee lands within the boundaries of a reservation, the
Tribal Legal
[[Page 30487]]
Certification shall clearly identify the activities and areas affected
by that claim. The Tribal Legal Certification shall also include an
analysis of the Tribe's authority to implement the permitting and
enforcement provisions of subpart C on those non-member fee lands.
(5) The Memorandum of Agreement described in Sec. 271.8 shall be
executed by the Indian Tribe's counterpart to the State Director; e.g.
the Director of the Tribal Environmental Office, Program or Agency.
Indian Tribes are not required to meet the requirements of
Sec. 271.16(a)(3)(ii) for the purposes of criminal authority over non-
Indians or for the purposes of imposing criminal fines over $5,000.00.
The Memorandum of Agreement required in 271.8 shall include a provision
for the timely and appropriate referral to the Regional Administrator
for those criminal enforcement matters where that Tribe does not have
authority (i.e., those addressing criminal violations by non-Indian or
violations meriting penalties over $5,000.00). The Agreement shall also
identify any enforcement agreements that may exist between the Tribe
and any State.
(b) Indian Tribes may apply for and receive authorization from EPA
to operate a partial RCRA program. A partial program may be approved
when the Indian Tribe's application demonstrates to EPA's satisfaction
that the following factors are present:
(1) The composition and size of the Indian Tribe's regulated
community warrant the development and operation of a partial program.
(2) The components for which the Indian Tribe seeks authorization
are severable from the remainder of the program retained by EPA, so
that the respective roles and responsibilities of the Indian Tribe and
EPA will be reasonably ascertainable and implementable.
(3) The program components applicable to the Indian Tribes'
regulated community that would be retained by EPA, reasonably require a
special expertise that is not readily available to the Indian Tribe.
(4) The program components for which the Indian Tribe seeks
authorization define a bona-fide and significant hazardous waste
management program for which the Indian Tribe possesses the capability
to implement and manage.
(c) A partial RCRA program may not be approved under paragraph (b)
of this section, unless it includes, at a minimum, counterparts to the
following Federal program requirements:
(1) Appropriate definitions in 40 CFR part 260.
(2) Waste identification requirements of 40 CFR part 261.
(3) Generator requirements set forth in 40 CFR parts 262 and 268.
(4) Transporter requirements contained in 40 CFR part 263.
(5) Facility permitting standards in 40 CFR part 264, appropriate
for the types of hazardous waste management facilities within the
Indian Tribe's jurisdiction. However, specific facility permitting
standards may be waived if EPA has retained permit issuance authority
for the treatment, storage, and disposal facilities within the Tribe's
jurisdiction.
(d) When a partial RCRA program is approved under this section, EPA
retains direct implementation and enforcement responsibilities for
those program components which are not included in the Indian Tribe's
approved program.
(e) The provisions of Sec. 271.21 on program revisions apply to
Indian Tribe programs, except that an Indian Tribe's obligation to
modify its authorized program to address subsequent Federal program
changes extends only to those Federal program changes that directly
affect the components of the Indian Tribe's authorized program.
Subsequent Federal program changes promulgated under non-HSWA authority
shall not take effect in an authorized Indian Tribe until the Indian
Tribe has adopted the change under its laws and EPA has approved the
program revision. However, amendments to HSWA provisions for which a
Tribe is not authorized shall take effect under Federal authority
immediately upon the effective date of the rule.
[FR Doc. 96-15186 Filed 6-13-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15173 Importation of Fetal Bovine Serum
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30189-30190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15173]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 95
[Docket No. 89-174-3]
Importation of Fetal Bovine Serum
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule; withdrawal.
-----------------------------------------------------------------------
SUMMARY: We are withdrawing a proposed rule that would have allowed,
under certain conditions, the importation of fetal bovine serum into
the United States from countries in which foot-and-mouth disease or
rinderpest exists. We are taking this action after considering the
comments we received following the publication of the proposed rule.
DATES: This withdrawal is effective June 14, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. John H. Gray, Senior Staff
Veterinarian, Import/Export Products, National Center for Import and
Export, VS, APHIS, 4700 River Road Unit 40, Riverdale, MD 20737, (301)
734-7837.
SUPPLEMENTARY INFORMATION:
Background
The regulations in 9 CFR part 95 govern importation into the United
States of certain animal byproducts, including blood serum and other
blood products. Blood serum is that part of blood that is left after
the blood cells are removed.
Fetal bovine serum (FBS) is that part of the blood from bovine
fetuses that is left after the blood cells are removed. It is used in
tissue culture media to produce various pharmaceuticals and biological
products, such as vaccines, and cannot be derived synthetically.
On February 25, 1994, we published in the Federal Register (59 FR
9142-9146, Docket No. 89-174-1) a proposed rule that would have
allowed, under certain conditions, the importation of FBS into the
United States from countries in which foot-and-mouth disease (FMD) or
rinderpest exists. The proposed conditions included certification of
the origin of the donor fetuses and treatment of the FBS with gamma
radiation.
We solicited comments on the proposed rule for 60 days ending April
26, 1994. However, on April 15, 1994, we published in the Federal
Register (59 FR 18003-18004, Docket No. 89-174-2) a notice extending
the comment period on the proposed rule until June 27, 1994.
By the close of the comment period, we received a total of 22
comments. One commenter supported the proposed rule as written. Several
commenters supported it with changes. The remainder of the commenters
either opposed the proposed rule or expressed reservations concerning
it.
The commenters in opposition to the proposal raised a number of
issues, including that of the efficacy of the proposed required dosage
of gamma radiation in destroying FMD virus. Several of the commenters
stated that the size and configuration of the containers in which the
FBS is irradiated could influence the effectiveness of the treatment. A
number of commenters stated that the potential difficulties in
adequately monitoring the source of donor fetuses could create an
[[Page 30190]]
unacceptable risk of the introduction of disease into the United
States.
We have considered all of the comments we received on the proposal
and have determined that the expressed concerns have merit. Therefore,
we are withdrawing the proposed rule of February 25, 1994, referenced
above.
Authority: 21 U.S.C. 111, 136, and 136a; 31 U.S.C. 9701; 7 CFR
2.22, 2.80, and 371.2(d).
Done in Washington, DC, this 7th day of June 1996.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-15173 Filed 6-13-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-15172 Migratory Bird Hunting; Supplemental Proposals for Migratory Game Bird Hunting Regulations
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30490-30493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15172]
[[Page 30489]]
_______________________________________________________________________
Part X
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Part 20
Migratory Bird Hunting; Supplemental Proposals for Migratory Game Bird
Hunting Regulations; Proposed Rule
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 /
Proposed Rules
=======================================================================
-----------------------------------------------------------------------
[[Page 30490]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
RIN 1018-AD69
Migratory Bird Hunting; Supplemental Proposals for Migratory Game
Bird Hunting Regulations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; supplemental.
-----------------------------------------------------------------------
SUMMARY: The U.S. Fish and Wildlife Service (hereinafter the Service)
proposed in an earlier document to establish annual hunting regulations
for certain migratory game birds for the 1996-97 hunting season. This
supplement to the proposed rule describes the Service's proposed
regulatory alternatives for the 1996-97 duck hunting season and
announces the Service's intent to consider establishing a special youth
waterfowl hunting day.
DATES: The Service Migratory Bird Regulations Committee will consider
and develop proposed regulations for early-season migratory bird
hunting on June 25, 26, and 27, and for late-season migratory bird
hunting on July 31, August 1, and 2. The Service will hold public
hearings on proposed early- and late-season frameworks at 9:00 a.m. on
June 27 and August 2, 1996, respectively. The Service Migratory Bird
Regulations Committee will discuss the proposed regulatory alternatives
for the 1996-97 duck hunting season and the special youth waterfowl
hunting day at the June 25, 26, and 27 meetings.
The comment period on the proposed regulatory alternatives for the
1996-97 duck hunting season ends on July 5, 1996. The comment period
for proposed migratory bird hunting-season frameworks for Alaska,
Hawaii, Puerto Rico, the Virgin Islands, and other early seasons,
including the consideration of a proposed youth hunting day, ends on
July 25, 1996. The comment period for late-season frameworks ends on
September 3, 1996. The Service will publish the final regulatory
alternatives for the 1996-97 duck hunting season in a July supplemental
containing the Service's proposed early-season frameworks.
ADDRESSES: The Service Migratory Bird Regulations Committee will meet
in room 200 of the U.S. Fish and Wildlife Service's Arlington Square
Building, 4401 N. Fairfax Drive, Arlington, Virginia. The Service will
hold public hearings in the Auditorium of the Department of the
Interior Building, 1849 C Street, NW., Washington, DC. Parties should
submit written comments on the proposals and/or a notice of intent to
participate in either hearing to the Chief, Office of Migratory Bird
Management, U.S. Fish and Wildlife Service, Department of the Interior,
ms 634--ARLSQ, 1849 C Street, NW., Washington, DC 20240. The public may
inspect comments during normal business hours in room 634, ARLSQ
Building, 4401 N. Fairfax Drive, Arlington, Virginia.
FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, Office of
Migratory Bird Management, U.S. Fish and Wildlife Service, (703) 358-
1714.
SUPPLEMENTARY INFORMATION:
Regulations Schedule for 1996
On March 22, 1996, the Service published in the Federal Register
(61 FR 11992) a proposal to amend 50 CFR part 20. The proposal dealt
with the establishment of seasons, limits, and other regulations for
migratory game birds under Secs. 20.101 through 20.107, 20.109, and
20.110 of subpart K. On June 13, 1996, the Service published a second
document providing supplemental proposals for early- and late-season
migratory bird hunting regulations frameworks. The June 13 supplement
also provided detailed information on the 1996-97 regulatory schedule
and announced the Service Migratory Bird Regulations Committee and
Flyway Council meetings.
This document is the third in a series of proposed, supplemental, and
final rules for migratory game bird hunting regulations. The Service
will propose early-season frameworks in late June and late-season
frameworks in early August. The Service will publish final regulatory
alternatives for the regular duck hunting season on or about July 15,
1996. The Service will publish final regulatory frameworks for early
seasons on or about August 14, 1996, and those for late seasons on or
about September 23, 1996.
This supplement describes the Service's proposed regulatory
alternatives for the 1996-97 duck hunting season and the Service's
consideration of a proposed youth waterfowl hunting day. The Service
published specific Flyway Council recommendations regarding the
formation of these regulatory alternatives in the June 13 Federal
Register. The Service will consider all comments in the regulations-
development process and will publish responses to proposals, written
comments, and public-hearing testimony when developing final regulatory
alternatives and final frameworks.
New proposals and modifications to previously described proposals
are discussed below. The headings correspond to the numbered items in
the March 22, 1996, Federal Register.
1. Ducks
A. Harvest Strategy Considerations
In the March 22, 1996, Federal Register, the Service described the
underlying principles of Adaptive Harvest Management (AHM) and the
progress made on its implementation in 1995. In addition, the Service
reported recommendations made by an AHM technical working group for the
1996-97 regulatory process. Comprised of representatives from the
Service and the four Flyway Councils, the working group was established
in 1992 to develop technical recommendations for improving duck harvest
regulations.
One of the recommendations of the AHM working group for the 1996-97
regulatory process was to continue the regulatory alternatives used in
1995, with a minor exception in the Pacific Flyway. In 1995, the
Service limited the choice of regulatory alternatives for the 1995-96
regular duck hunting season to three sets of frameworks similar to
those in effect during the 1979-93 hunting seasons. These three sets of
frameworks, or regulatory alternatives, were described in a relative
sense as restrictive, moderate, and liberal. In general, specific
guidelines for selection of one of the regulatory alternatives are
based on the size of the mallard breeding population and habitat
conditions.
In the June 13, 1996, Federal Register, the Service reported that
all four Flyways continued to express support for the AHM approach to
setting duck hunting regulations. The Mississippi, Central, and Pacific
Flyway Councils recommended some specific modifications to the
regulatory alternatives recommended by the working group and these
recommendations were identified in the June 13, 1996, document.
For the 1996-97 regular duck hunting season, the Service proposes
the three regulatory alternatives detailed in the accompanying table.
Alternatives are specified for each Flyway and are designated as
``RES'' for the restrictive, ``MOD'' for the moderate, and ``LIB'' for
the liberal alternative. The Service will publish final regulatory
alternatives in July and propose a specific regulatory alternative when
survey data on waterfowl population and habitat status are available.
[[Page 30491]]
G. Special Seasons/Species Management
The long-term conservation of North America's migratory bird
resources depends on the future paths and actions of today's youth. To
assist in the formation and development of a conservation ethic in
future generations, the Service is considering proposing the
establishment of a ``Youth Waterfowl Hunting Day'' and is seeking
public comment on such an action. The special day would provide an
opportunity for young hunters (16 or under), accompanied by an adult
(18 or older), to experience a safe, quality waterfowling experience.
The hunt day would have to be on a weekend or holiday when youth
hunters would have the maximum opportunity to participate. Both the
youth hunters and accompanying adults (who could not duck hunt) would
have to be licensed according to State law. The intent of establishing
this special day would be to introduce youth to the concepts of ethical
utilization and stewardship of waterfowl and other natural resources,
encourage youngsters and adults to experience the outdoors together,
and contribute toward the long-term conservation of the migratory bird
resource. Because the special 1-day hunt would be limited to youths,
the Service believes that waterfowl populations could support the
additional harvest and that the hunt would produce long-term benefits
to the resource.
To facilitate public comment, the Service is considering proposing
the following guidelines:
1. States may select 1 day, designated as ``Youth Waterfowl Hunting
Day'', in addition to their regular duck seasons.
2. The day must be held outside of any regular duck season on
either a weekend or holiday when youth hunters would have the maximum
opportunity to participate.
3. The day could be held up to 10 days before or after any regular
duck season or within any split of a regular duck season.
4. The daily bag limit may be no more than 4 ducks. Flyway species
restrictions would remain in effect.
5. Youth hunters must be 16 years of age or younger.
6. An adult at least 18 years of age must accompany the youth
hunter into the field. This adult could not duck hunt.
7. Both the youth hunter and the accompanying adult must be fully
licensed to hunt according to State law.
8. The special youth hunt day will be considered a trial for its
initial season and will be evaluated by the Service.
Public Comment Invited
The Service intends that adopted final rules be as responsive as
possible to all concerned interests and wants to obtain comments from
all interested areas of the public, as well as other government
agencies. Such comments, and any additional information received, may
lead to final regulations that differ from these proposals.
However, special circumstances involved in the establishment of
these regulations limit the amount of time the Service can allow for
public comment. Specifically, two considerations compress the time in
which the rulemaking process must operate: (1) the need to establish
final rules at a point early enough in the summer to allow affected
State agencies to appropriately adjust their licensing and regulatory
mechanisms; and (2) the unavailability, before mid-June, of specific,
reliable data on this year's status of some waterfowl and migratory
shore and upland game bird populations. Therefore, the Service believes
allowing comment periods past the dates specified is contrary to the
public interest.
Comment Procedure
It is the policy of the Department of the Interior to afford the
public an opportunity to participate in the rulemaking process,
whenever practical. Accordingly, interested persons may participate by
submitting written comments to the Chief, Office of Migratory Bird
Management, U.S. Fish and Wildlife Service, Department of the Interior,
ms 634--ARLSQ, 1849 C Street, NW., Washington, DC 20240. The public may
inspect comments during normal business hours at the Service's office
in room 634, Arlington Square Building, 4401 N. Fairfax Drive,
Arlington, Virginia. The Service will consider all comments received
and will try to acknowledge received comments, but may not provide an
individual response to each commenter.
NEPA Consideration
NEPA considerations are covered by the programmatic document,
``Final Supplemental Environmental Impact Statement: Issuance of Annual
Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-
14),'' filed with EPA on June 9, 1988. The Service published a Notice
of Availability in the June 16, 1988, Federal Register (53 FR 22582).
The Service published its Record of Decision on August 18, 1988 (53 FR
31341). Copies of these documents are available from the Service at the
address indicated under the caption ADDRESSES.
Endangered Species Act Consideration
As in the past, the Service will design hunting regulations to
remove or alleviate chances of conflict between migratory game bird
hunting seasons and the protection and conservation of endangered and
threatened species. Consultations are presently under way to ensure
that actions resulting from these regulatory proposals will not likely
jeopardize the continued existence of endangered or threatened species
or result in the destruction or adverse modification of their critical
habitat. Findings from these consultations will be included in a
biological opinion and may cause modification of some regulatory
measures proposed in this document. The final frameworks will reflect
any such modifications. The Service's biological opinions resulting
from its consultation under Section 7 are public documents available
for public inspection in the Division of Endangered Species and the
Office of Migratory Bird Management, U.S. Fish and Wildlife Service,
Arlington Square Building, 4401 N. Fairfax Drive, Arlington, Virginia.
Regulatory Flexibility Act; Executive Order (E.O.) 12866 and the
Paperwork Reduction Act
In the Federal Register dated March 22, 1996, the Service reported
measures it took to comply with requirements of the Regulatory
Flexibility Act and the Executive Order. One measure was to prepare a
Small Entity Flexibility Analysis (Analysis) in 1995 documenting the
significant beneficial economic effect on a substantial number of small
entities. The Analysis estimated that migratory bird hunters would
spend between $258 and $586 million at small businesses in 1995. Copies
of the Analysis are available upon request from the Office of Migratory
Bird Management. This rule was not subject to review by the Office of
Management and Budget under E.O. 12866.
The Service examined these proposed regulations under the Paperwork
Reduction Act of 1995 and found no information collection requirements.
Authorship
The primary author of this proposed rule is Ron W. Kokel, Office of
Migratory Bird Management.
[[Page 30492]]
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 1996-97
hunting season are authorized under 16 U.S.C. 703-711, 16 U.S.C. 712,
and 16 U.S.C. 742 a-j.
Dated: June 7, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
BILLING CODE 4310-55-F
[[Page 30493]]
[GRAPHIC] [TIFF OMITTED] TP14JN96.004
[FR Doc. 96-15172 Filed 6-13-96; 8:45 am]
BILLING CODE 4310-55-C
Complete official Federal Register PDF
FR Doc. 96-15169 Conditions on Nonimmigrant Status: Disclosure of Information
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30188-30189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15169]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 /
Proposed Rules
[[Page 30188]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS No. 1732-95]
RIN 1115-AE17
Conditions on Nonimmigrant Status: Disclosure of Information
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service (``the Service'') regulations by removing the current
regulatory language conditioning an alien's nonimmigrant status on his
or her providing full and truthful information requested by the
Service, regardless of the requested information's materiality. This
proposed regulation would clarify that a nonimmigrant's maintenance of
status is conditioned on, among other things, the provision of all
information deemed necessary to ensure that the alien has acquired, and
is maintaining, lawful nonimmigrant status during the entire period of
his or her stay, or that the alien is eligible to receive a benefit
under the Immigration and Nationality Act (``the Act''). This rule
addresses the concern expressed by the court in Romero v. I.N.S., 39
F.3d 977 (9th Cir. 1994), that, under the current wording of the
regulations, the Service may elicit information unrelated to that
required to ensure the alien's continued eligibility for nonimmigrant
status or benefits under the Act.
DATES: Written comment must be submitted on or before August 13, 1996.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536, Attention: Public Comment Clerk. To ensure proper handling,
please reference INS Number 1732-95 on your correspondence.
FOR FURTHER INFORMATION CONTACT: Miriam Jawitz Hetfield, Senior
Adjudications Officer, Nonimmigrant Branch, Immigration and
Naturalization Service, Room 3214, 425 I Street, NW., Washington, DC
20536, telephone: (202) 514-5014.
SUPPLEMENTARY INFORMATION: Section 214(a)(1) of the Act provides that
the Attorney General may by regulation prescribe the length and the
conditions of a nonimmigrant alien's stay, in order to ensure that the
nonimmigrant will depart from the United States at the expiration of
the period of admission or upon failure of the nonimmigrant to maintain
nonimmigrant status. Under section 241(a)(1)(C)(i) of the Act, a
nonimmigrant who fails to maintain nonimmigrant status, or to comply
with the conditions of such status, is deportable.
Under current 8 CFR 214.1(f), a condition of an alien's
nonimmigrant status is that he or she provide full and truthful
information requested by the Service, ``regardless of whether or not
the information requested was material.'' The Service promulgated this
regulation to ensure that it is furnished with the information
necessary to perform its statutory function of regulating the admission
and control of nonimmigrants, to ensure compliance with the Act, and to
locate and deport those nonimmigrant aliens who have violated their
status. 44 FR 65726-65727. It was the opinion of the Service, in
promulgating this regulation, that, to meet this responsibility, it is
necessary to have information which ``possibly may not be considered
material in the strict legal connotation of the term.'' Id. at 44 FR
65727. Despite such broad language, the current regulation was intended
to require the provision of only information bearing a reasonable
relationship to the Service's above-described responsibility in
prescribing the conditions of a nonimmigrant's stay. Id.
On November 3, 1994, the court in Romero v. I.N.S., 39 F.3d 977
(9th Cir. 1994), invalidated the parenthetical phrase in current 8 CFR
214.1(f), ``(regardless of whether or not the information requested was
material).'' In Romero, the Service charged the plaintiff with
violating section 241(a)(1)(C)(i) of the Act for failing to maintain
nonimmigrant status, contending that she had not disclosed certain
information requested by a Service officer. Specifically, in response
to a question by a Service officer, the plaintiff stated that she had
not informed another alien that someone could help that alien obtain an
extension of nonimmigrant status for money. The Service officer sought
this information in connection with an investigation of alleged
corruption among customs officers. The immigration court found that, in
making this statement, the plaintiff had provided a Service officer
with false information in violation of 8 CFR 214.1(f), and therefore
was deportable under section 241(a)(1)(C)(i) of the Act. In ordering
that the case be remanded for withdrawal of the order of deportation,
the Romero court found that the statement the plaintiff made to the
Service officer was not material in any way to the alien's immigration
status, but related only to a criminal investigation of other persons.
The court held that, as currently worded, the disclosure requirement of
8 CFR 214.1(f) is inconsistent with the purpose of the enabling
statute, section 214(a)(1) of the Act, which is to ensure that the
alien is eligible for nonimmigrant status or immigration benefits.
This proposed regulatory change would clarify that a nonimmigrant's
maintenance of status and/or continued receipt of immigration benefits
is conditioned on the alien fully and truthfully disclosing all
information he or she possesses, or reasonably should have knowledge
of, which the Service deems material in order to ensure that the alien
is eligible for nonimmigrant status and/or immigration benefits under
the Act. This regulation does not give the Service the authority to
require disclosure of information in the hope that it might uncover
information to be used for another purpose, such as an investigation of
another person or persons. For information to be deemed ``material''
for purposes of this regulation, there must exist a reasonable
connection between the information sought and the determination of
whether an alien is eligible under the Act for nonimmigrant status or
immigration benefits. In this regard. ``material'' information includes
that information which, if known to the Service, would be predictably
capable of
[[Page 30189]]
affecting a decision regarding whether an alien has violated a
condition of his or her nonimmigrant stay or eligibility for benefits.
See Kungys v. United States, 485 U.S. 759, 771 (1988).
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Commissioner of the
Immigration and Naturalization Service certifies that this rule will
not, if promulgated, have a significant adverse economic impact on a
substantial number of small entities. This rule merely clarifies that a
nonimmigrant's status in this country is conditioned on, among other
things, his or her providing full and truthful disclosure of all
information deemed necessary to ensure that the alien has acquired, and
is maintaining, lawful nonimmigrant status during the entire period of
his or her stay, or to ensure that the alien is eligible to receive any
other benefit under the Act. Any impact this proposed regulation will
have on small business entities, therefore, will be negligible.
Executive Order 12866
This proposed rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 6(a)(3)(A).
Executive Order 12612
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federal
Assessment.
Paperwork Reduction Act
This rule contains information collection requirements which have
been approved by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act. The OMB control numbers for
these collections are contained in 8 CFR 299.5, Display of control
numbers.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Reporting and
recordkeeping requirements.
Accordingly, part 214 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2.
2. In Sec. 214.1, paragraph (f) is revised to read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(f) Disclosure of information. (1) A condition of a nonimmigrant's
admission and maintenance of status in the United States is that he or
she fully and truthfully disclose all information deemed by the Service
to be material in determining whether the nonimmigrant:
(i) Is eligible for, and/or is maintaining the nonimmigrant status
in which the alien was admitted or to which the alien has changed under
section 248 of the Act, or
(ii) Is eligible to receive any benefit under the Act.
(2) Willful failure by a nonimmigrant to provide full and truthful
disclosure of such material information when requested by a Service
officer constitutes a failure to maintain nonimmigrant status under
section 241(a)(1)(C)(i) of the Act.
* * * * *
Dated: March 4, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-15169 Filed 6-13-96; 8:45 am]
BILLING CODE 4410-01-M
Complete official Federal Register PDF
FR Doc. 96-15166 Negotiated Rulemaking Advisory Committee on Tuna Management in the Mid-Atlantic
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Page 30214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15166]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 285
[I.D. 112995B]
Negotiated Rulemaking Advisory Committee on Tuna Management in
the Mid-Atlantic
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Notice of intent; update.
-----------------------------------------------------------------------
SUMMARY: In February 1996, NMFS announced that Commerce was considering
establishing a new advisory committee under the Federal Advisory
Committee Act (FACA) to negotiate certain issues between commercial and
recreational fishermen competing for tuna off the Mid-Atlantic coast.
NMFS has decided to schedule a public meeting for early fall 1996 to
brief interested parties on the negotiated rulemaking process and
obtain their views as to immediate steps for action that would permit
resolution prior to next year's fishing season.
ADDRESSES: Comments should be submitted to the Highly Migratory Species
Division, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Mark Murray-Brown, 301-713-2347.
SUPPLEMENTARY INFORMATION: On February 1, 1996, NMFS announced that
Commerce was considering establishing a new advisory committee under
FACA to negotiate issues leading to a proposed rule resolving the gear
conflict between recreational and commercial fishermen competing for
tuna off the Mid-Atlantic coast (61 FR 3666, February 1, 1996). The
decision to use a negotiated rulemaking process--in accordance with the
Presidential Directive of March 4, 1995, the report of the National
Performance Review, and EO 12866--came in response to the National
Fishing Association's petition to employ such a procedure in connection
with the tuna dispute. The goal is to produce better regulations, use
parties' time and resources more wisely, and reduce litigation,
controversy, and uncertainty. The announcement described generally how
an advisory committee would be established, participants selected, and
requests for representation narrowed. It also set forth a list of
possible interests and participants and sought comment on the tentative
pool of representatives. Finally, the document set forth a tentative
schedule, indicating NMFS' plans to hold meetings of the advisory
committee at 2-week intervals starting in March 1996. This document
supplements the February announcement, and is intended to provide an
update. While NMFS had hoped to start, and finish, the negotiated
rulemaking process before the 1996 fishery, this has not been possible.
Following the announcement, NMFS contracted with two dispute
resolution professionals, Philip J. Harter and Charles Pou of
Washington, DC, for advice on establishment of the advisory committee
and to facilitate and mediate the negotiations. The contractors have
begun to contact representatives of groups that responded to NMFS's
announcement and will be speaking to all of these persons in the near
future. The initial contacts indicate that most fishermen are now
concentrating on preparing for the summer tuna fishery and, hence, it
would be more convenient to postpone any negotiations until near the
end of the 1996 season. The contractors have therefore recommended that
NMFS hold a public briefing on the negotiated rulemaking process in
early fall 1996 and select advisory committee members and commence
negotiations soon after the public briefing. NMFS agrees with, and will
implement, these recommendations.
The fall 1996 session will bring together representatives of as
many affected interests as possible, as well as any others who want to
attend, for a briefing on the negotiated rulemaking process; an
opportunity for interested persons to offer views and discuss specific
potential issues that should be addressed in such a process; and a
chance to consider immediate steps for action that would permit
resolution prior to commencement of next year's fishing season.
NMFS will work with the contractors over the summer to clarify
issues and develop an agenda for the fall briefing, and welcomes input
on these matters from interested persons. In addition, the discussion
at the fall session, and subsequent negotiations, will be improved
substantially if parties collect relevant data and other useful
information over the summer, to permit these talks to proceed on the
basis of fact. For this reason, NMFS encourages all parties to use the
summer to identify and collect information that substantiates or
illuminates their claims and concerns.
Authority: 16 U.S.C. 971 et seq.
Dated: June 7, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-15166 Filed 6-13-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-15140 Medical Devices; Classification/Reclassification of Immunohistochemistry Reagents and Kits
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30197-30200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15140]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 864
[Docket No. 94P-0341]
Medical Devices; Classification/Reclassification of
Immunohistochemistry Reagents and Kits
AGENCY: Food and Drug Administration, HHS.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is proposing to
classify/reclassify immunohistochemistry reagents and kits (IHC's) (in-
vitro diagnostic devices) into three classes depending on intended use.
These actions are being taken under the Federal Food, Drug, and
Cosmetic Act (the act), as amended by the Medical Device Amendments of
1976 (the 1976 amendments) and the Safe Medical Devices Act of 1990
(the SMDA). The intention of this proposal is to regulate these pre-
and post-1976 devices in a consistent fashion. Therefore, FDA is
proposing classification or reclassification of these products as
applicable.
DATES: Submit written comments by August 30, 1996.
ADDRESSES: Submit written comments on the proposed rule to the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Max Robinowitz, Center for Devices and
Radiological Health (HFZ-440), Food and Drug Administration, 2098
Gaither Rd., Rockville, MD, 20850-4011, 301-594-1293, ext. 136, or FAX
301-594-5941.
SUPPLEMENTARY INFORMATION:
I. Background
The act (21 U.S.C. 201 et seq.), as amended by the 1976 amendments
(Pub. L. 94-295) and the SMDA (Pub. L. 101-629), established a
comprehensive system for the regulation of medical devices intended for
human use. Section 513 of the act (21 U.S.C. 360c) established three
categories (classes) of devices, depending on the regulatory controls
needed to provide reasonable assurance of their safety and
effectiveness. The three categories of devices are: Class I (general
controls), class II (special controls), and class III (premarket
approval).
Under section 513 of the act (21 U.S.C. 360c), devices that were in
commercial distribution before May 28, 1976, the enactment date of the
1976 amendments, are classified after FDA has: (1) Received a
recommendation from a device classification panel (an FDA advisory
committee); (2) published the panel's recommendations for comment,
along with a proposed regulation classifying the device; and (3)
published a final regulation classifying the device. A device that is
first offered in commercial distribution after May 28, 1976, and which
FDA determines to be substantially equivalent to a device classified
under this scheme, is classified into the same class as the device to
which it is substantially equivalent. The agency determines whether new
devices are substantially equivalent to previously offered devices by
means of premarket notification procedures in section 510(k) of the act
(21 U.S.C. 360 (k)) and part 807 of the regulations (21 CFR 807). A
device that was not in commercial distribution prior to May 28, 1976,
and that has not been found by FDA to be substantially equivalent to a
legally marketed device, is classified automatically by statute
(section 513(f) of the act) into class III, without any FDA rulemaking
proceeding.
The scope of products covered by this proposal includes both pre-
1976 devices which have not been previously classified as well as post-
1976 devices which are statutorily classified into class III. The
intention of this proposal is to regulate these pre- and post-1976
devices in a consistent fashion. Therefore, FDA is proposing
classification or reclassification of these products, as applicable.
Fluorescent-labeled immunohistochemistry in vitro diagnostic
devices (IHC's) have been used for patient diagnosis since the early
1940's and enzyme-linked IHC's have been used since the early 1970's.
IHC's, however, were not classified as a part of the 1979 FDA
classification activities. In addition, new IHC's have been marketed
for the first time since the passage of the 1976 amendments. When used
in a standardized controlled manner, IHC's enhance the accuracy and
scope of surgical pathology, provide objective data to
histopathological examination, and contribute to improved patient care.
IHC's can specifically and objectively demonstrate the presence and
distribution of antigens that may be of use in narrowing differential
diagnoses. IHC results are integrated by the user pathologist and
interpreted together with other types of data used in pathological
diagnostic decisionmaking (Refs. 1 through 4). Because pathologists,
the principal users of IHC's, were concerned about the regulation of
IHC's, the College of American Pathologists, the American Society of
Clinical Pathologists, the Association of Pathology Chairs, the
Biological Stain Commission, and the Association of Directors of
Anatomic and Surgical Pathology requested a review of the
classification of IHC reagents and submitted a Petition for
Classification of IHC's as class II (special controls) medical devices
during the summer of 1994. In response to this petition, FDA convened
the Panel to consider classification/reclassification of these devices.
II. Panel Recommendation
The Hematology and Pathology Devices Panel (the Panel) met on
October 21, 1994, and made the following recommendation regarding the
classification of five Immunohistochemistry devices.
A. Identification
Immunohistochemistry test systems (IHC's) are in-vitro diagnostic
devices that consist of polyclonal or monoclonal antibodies and
ancillary reagents that are used to identify, by immunological
techniques, antigens in specimens of tissues or intact cells in
cytologic specimens. IHC's are primary antibody reagents that are
labeled with instructions for use and performance
[[Page 30198]]
claims and packaged either prediluted or concentrated (neat), or as
kits consisting of optimally-diluted primary antibody combined with
detector systems. IHC's identify antigens in tissue or cell
preparations using ligand-specific antibodies whose reactivity is
detected and marked by secondary reagents that are recognized by
pathologists using light or electron microscopes. Most IHC's are
adjunctive to conventional histopathology and aid in the qualitative
identification of antigens, thereby supplementing the conventional
hematoxylin and eosin stains used in the diagnostic classification of
normal and abnormal cells and tissues. Some IHC's may provide semi-
quantitative or quantitative information about the antigen they
identify in normal and abnormal cells and tissues.
B. Recommended Classification of the Hematology and Pathology Devices
Panel
Class II (special controls). The Panel recommended that
establishing special controls for IHC devices should be a high
priority.
C. Summary of Reasons for Recommendation
The Panel recommended that IHC devices be classified into class II
(special controls) because they perceived the need for special controls
for IHC's that prescribe acceptable sensitivity, specificity,
stability, accuracy and precision for these devices, and thereby
minimize the possibility that these devices may generate inaccurate
diagnostic information. Patients may be placed at unnecessary risk when
reliance upon inaccurate diagnostic information results in initiating
inappropriate therapies or withholding appropriate therapies.
The Panel stated that general controls for IHC's would not provide
sufficient control over sensitivity, specificity, stability, accuracy
and precision of IHC devices. The Panel stated that special controls
are needed to provide reasonable assurance of the safety and
effectiveness of IHC devices and that sufficient information is
available to establish these special controls. The Panel recommended
that manufacturers of IHC devices should follow the FDA's Guidance for
Submission of Immunohistochemistry Applications and that this guidance
should serve as a special control.
A major concern of the Panel was that manufacturers of IHC devices
should be subject to current good manufacturing practice (CGMP)
inspections in a timely manner to ensure safe, reliable, stable, and
consistent IHC products.
D. Summary of Data Upon Which the Recommendation is Based
The Panel based its recommendation on the Panel members' personal
knowledge of, and clinical experience with IHC devices, and
presentations by Panel members, manufacturers, other interested
parties, and FDA (Ref. 5).
E. Risks to Health
IHC in vitro diagnostic devices are intended for use as diagnostic
tools. Risk to the patient may result from misdiagnosis and initiation
of inappropriate therapies or withholding of appropriate therapies
based on the results obtained with the IHC diagnostic device. The
degree of risk depends on whether the product is used as an adjunct to
conventional histopathological diagnostic techniques or provides
information that is used independently of the usual diagnostic process.
The highest risk products are those used as independent, stand-alone
diagnostic tests that are the sole or major determinant for a medical
decision and cannot be confirmed by conventional histopathologic
techniques or other diagnostic tests or clinical procedures.
III. Proposed Classification/Reclassification
Following the Hematology and Pathology Devices Panel meeting, the
agency considered the Panel's recommendation. The agency agrees in part
and disagrees in part with the Panel's recommendation. FDA believes
that general class I controls are sufficient to ensure safety and
effectiveness for those adjunctive IHC's that furnish information that
may be incorporated into the pathologist's histopathology or
cytopathology report but that is not reported directly to clinicians.
These general controls include: (1) Existing labeling requirements (21
CFR 809.10) for in vitro devices, (2) compliance with good
manufacturing practices, (3) registration, listing, and premarket
notification (510(k)), (4) recordkeeping and medical device reporting
(MDR), (5) restriction to prescription use (21 CFR 801.109.) Those
IHC's that provide pathologists with adjunctive diagnostic information
that may be incorporated into the pathologist's report, but that is not
ordinarily reported to the clinician as an independent finding, are
therefore proposed to be categorized as class I. These IHC's are used
in adjunctive tests to subclassify malignant tumors, but the primary
diagnosis of tumor (neoplasm) and malignancy is made by conventional
histopathology using nonimmunological histochemical stains such as
hematoxylin and eosin. Examples of these IHC's proposed for class I are
differentiation markers, such as antikeratin antibodies.
The manufacturer (sponsor) of a class I IHC would be required to
provide a premarket notification submission to FDA, including data
documenting compliance with the labeling requirements in Sec. 809.10
(21 CFR 809.10). Such manufacturers or sponsors may wish to follow the
``FDA Guidance for Submissions of Immunochemistry Applications to FDA''
(Guidance), for the purpose of documenting manufacturing. The FDA
Guidance provides details about data that may be submitted to comply
with Sec. 809.10.
In considering whether to place any adjunctive IHC's into class I,
FDA focused on whether this level of regulation is adequate for the
protection of public health. FDA considers the total test performance
for any in vitro diagnostic device to be dependent on the net results
of preanalytic, analytic, and postanalytic factors. For example,
variability in IHC results may be introduced at every step including
collection and fixation of the specimen, automated processing,
embedding, sectioning, staining of the final slide preparation, and the
microscopic interpretation by the pathologist. FDA regulation and
review are directed at ensuring that the manufacturer characterizes,
manufacturers, and labels the IHC appropriately before it is marketed
for professional use. Ongoing initiatives by professional
organizations, manufacturers, and FDA are directed at ensuring that
pre- and postanalytic, as well as analytic procedures, are properly
performed. In the context of these initiatives, FDA believes that class
I regulation will assure that these adjunctive IHC's are used safely
and effectively.
IHC's that provide the pathologist with adjunctive diagnostic
information that is ordinarily reported as independent diagnostic
information to the ordering clinician are proposed to be classified in
class II. Examples are IHC's for immunologic detection and semi-
quantitative measurement of specific ligand markers of proliferation,
such as Ki-67, or semi-quantitative determination of other analytes,
such as hormone receptors, if they are reported for their prognostic
implications. However, this classification does not apply to estrogen
and progesterone receptors, which are in class III by previous
regulation, and which provide
[[Page 30199]]
information that is the basis for significant medical decisions
substantially independent of other pathological tests. FDA is proposing
that class II IHC's be subject to general controls and to a special
control: The FDA Guidance for submissions of Immunohistochemistry
Applications to FDA (the guidance) (Ref. 6). The agency believes that
the manufacturer/sponsor can establish reasonable assurance of the
safety and effectiveness of a class II IHC by providing valid
scientific evidence from sponsor-supported studies, as described in the
guidance, or from the scientific literature. The guidance was drafted
with input from the Biological Stain commission, the Joint Council of
Immunohistochemistry Manufacturers, the College of American
Pathologists, the American Society of Clinical Pathology, FDA, and
comments from the public. The guidance also will provide information to
aid the end-users of IHC's (pathologists and other laboratorians) with
recommendations about appropriate positive and negative control tissue
sections (or cytologic preparations) for each intended use of the IHC.
The guidance will also describe the form and content for the package
insert of IHC's and provide the sponsor with detailed recommendations
about how to comply with Sec. 809.10 (Ref. 6).
IHC's that generate information that is reported directly to the
clinician to be used as the basis for significant medical decisions,
and that either provide information substantially independent of other
pathological (or cytopathological) aspects of the specimen or that have
novel claims not supported by current widely accepted scientific
pathophysiologic principles, would be categorized as class III.
Examples of IHC's FDA proposes to put in class III are markers of
clinically significant genetic mutations in tissues that are normal by
conventional histopathology.
IV. References
The following references have been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday through Friday.
1. Taylor, C. R., and Cote, R. C., ``Immunomicroscopy: A
Diagnostic Tool for the Surgical Pathologist,'' 2d ed.,
Philadelphia, W. B. Saunders, 1994.
2. True, L. D. (ed)., Atlas of Diagnostic Immunohistopathology,
Philadelphia, Lippincott, 1990.
3. Nadji, M., and Morales, A. R., ``Immunoperoxidase Techniques:
A Practical Approach to Tumor Diagnosis'' Chicago, American Society
of Clinical Pathologists Press, 1986.
4. Taylor, C. R., ``Quality Assurance and Standardization in
Immunohistochemistry,'' A Proposal for the Annual Meeting of the
Biological Stain Commission, June 1991, Biotechnic & Histochemistry,
67:110-117, 1992.
5. Transcripts of the Hematology and Pathology Devices Panel
meeting, October 21, 1994.
6. FDA Guidance for Submission of Immunohistochemistry
Applications to the FDA, FDA Center for Devices and Radiologic
Health, 1995, available through the Division of Small Manufacturers'
Assistance (DSMA), 1-800-638-2041.
7. Taylor, C. R., et al., Report of the Immunohistochemistry
Steering Committee of the Biological Stain Commission, ``Proposed
Format: Package Insert for Immunohisto Chemistry Products,''
Biotechnic & Histochemistry, 67:328-338, 1992.
V. Environmental Impact
The agency has determined under 21 CFR 25.24(e)(2) that this action
is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
VI. Analysis of Impacts
FDA has examined the impacts of the proposed rule under Executive
Order 12866 and the Regulatory Flexibility Act (Pub. L. 96-354).
Executive Order 12866 directs agencies to assess all costs and benefits
of available regulatory alternatives and, when regulation is necessary,
to select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity). The agency believes that
this proposed rule is consistent with the regulatory philosophy and
principles identified in the Executive Order. In addition, the proposed
rule is not a significant regulatory action as defined by the Executive
Order and so is not subject to review under the Executive Order.
The Regulatory Flexibility Act requires agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. Because the agency believes only a small number of
firms will be affected by this rule when finalized, the agency
certifies that the proposed rule will not have a significant economic
impact on a substantial number of small entities. Therefore, under the
Regulatory Flexibility Act, no further analysis is required.
VII. Request for Comment
Interested persons may, on August 30, 1996 submit to the Dockets
Management Branch (address above) written comments regarding this
proposal. Two copies of any comments 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.
Received comments may be seen in the office above between 9 a.m and 4
p.m., Monday through Friday.
List of Subjects in 21 CFR Part 864
Blood, Medical devices, Packaging and containers.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, it is
proposed that 21 CFR part 864 be amended as follows:
PART 864--HEMATOLOGY AND PATHOLOGY DEVICES
1. The authority citation for 21 CFR part 864 continues to read as
follows:
Authority: Secs. 501, 510, 513, 515, 520, 701 of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 351, 360, 360c, 360e, 360j,
371).
2. Section 864.1860 is added to subpart B to read as follows:
Sec. 864.1860 Immunohistochemistry reagents and kits.
(a) Identification. Immunohistochemistry test systems (IHC's) are
in-vitro diagnostic devices consisting of polyclonal or monoclonal
antibodies labeled with directions for use and performance claims,
which may be packaged with ancillary reagents in kits. Their intended
use is to identify, by immunological techniques, antigens in tissues or
cytologic specimens. Similar devices intended for use with flow
cytometry devices are not IHC's.
(b) Classification of immunohistochemistry devices. (1) Class I for
IHC's that provide the pathologist with adjunctive diagnostic
information that may be incorporated into the pathologist's report, but
that is not ordinarily reported to the clinician as an independent
finding. These IHC's are used after the primary diagnosis of tumor
(neoplasm) and malignancy is made by conventional histopathology using
nonimmunologic histochemical stains such as hematoxylin and eosin.
Examples of class I IHC are differentiation markers, such as keratin,
which are used in adjunctive tests to subclassify malignant tumors.
(2) Class II for IHC's that provide the pathologist with adjunctive
diagnostic information that is ordinarily reported
[[Page 30200]]
as independent diagnostic information to the ordering clinician.
Examples are IHC's for immunologic detection and semi-quantitative
measurement of specific ligand markers of proliferation, such as Ki-67,
or semi-quantitative determination of other analytes, such as hormone
receptors, if they are reported for their prognostic implications.
However, this classification does not apply to estrogen and
progesterone receptors that are classified as class III devices.
(3) Class III for IHC's that generate information that is reported
directly to the clinician to be used as the basis for significant
medical decisions, and that either provide information substantially
independent of other pathological (or cytopathological) aspects of the
specimen or that have novel claims not supported by current widely
accepted scientific pathophysiologic principles. Examples are markers
used to identify clinically significant genetic mutations in tissues
that are normal by conventional histopathologic examination.
(c) Date PMA or notice of completion of a PDP is required. No
effective date has been established for the requirement for premarket
approval for the devices described in paragraph(b)(3) of this section.
See Sec. 864.3 for effective dates of requirement for premarket
approval.
Dated: May 31, 1996.
D.B. Burlington,
Director, Center for Devices and Radiological Health.
[FR Doc. 96-15140 Filed 6-13-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-15124 Endangered and Threatened Wildlife and Plants; Proposed Rule To Remove the Plant Echinocereus lloydii (Lloyd's Hedgehog Cactus) from the Federal List of Endangered and Threatened Plants
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30209-30212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15124]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AD91
Endangered and Threatened Wildlife and Plants; Proposed Rule To
Remove the Plant Echinocereus lloydii (Lloyd's Hedgehog Cactus) from
the Federal List of Endangered and Threatened Plants
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Fish and Wildlife Service (Service) under the authority of
the Endangered Species Act of 1973 (Act), as amended, proposes to
remove the plant Echinocereus lloydii (Lloyd's hedgehog cactus) from
the Federal List of Endangered and Threatened Plants. Lloyd's hedgehog
cactus was listed as endangered on October 26, 1979, due to threats of
collection and highway projects. Recent evidence indicates that Lloyd's
hedgehog cactus is not a distinct species but rather a hybrid.
Therefore, Lloyd's hedgehog cactus does not qualify for protection
under the Act.
DATES: Comments from all interested parties must be received by August
13, 1996. Public hearing requests must be received by July 29, 1996.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, Ecological Services Austin Field Office,
U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Hartland
Bank Building, Austin, Texas 78758. Comments and materials received
will be available for public inspection, by appointment, during normal
business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Kathryn Kennedy or Elizabeth Materna,
(see ADDRESSES section) (telephone 512/490-0057; facsimile 512/490-
0974).
SUPPLEMENTARY INFORMATION:
Background
Echinocereus lloydii (Lloyd's hedgehog cactus), a member of the
cactus family, was first collected by F.E. Lloyd in 1922 and was named
in his honor by Britton and Rose (1937). The first plants collected by
Mr. Lloyd were from near Fort Stockton, Pecos County, Texas (Weniger
1970).
Lloyd's hedgehog cactus is a cylindrical cactus with one to several
stems up to about 20 centimeters (cm) (8 inches (in)) long and 10 cm (4
in) in diameter. The flowers vary from lavender to magenta in color,
are about 5 cm (2 in) in diameter, and form mature fruits that are
green, tinged with pink or orange when ripe (Correll and Johnston 1979,
Poole and Riskind 1987).
Lloyd's hedgehog cactus is known from Brewster, Culberson, Pecos,
and Presidio Counties in Texas as well as from Eddy County in New
Mexico. It has also been reported from the state of Chihuahua in
Mexico. Currently fewer than 15 localities are known from the U.S.,
most occurring on private lands. These cacti occur in the shrub and
brush rangeland of the Chihuahuan Desert, and are usually found
associated with Agave lecheguilla (lechuguilla), Prosopis glandulosa
(mesquite), Larrea tridentata (creosote bush), Flourensia cernua
(tarbush), Viguiera stenoloba (skeleton-leaf goldeneye), and various
cacti (Opuntia sp., Echinocereus sp., Echinocactus sp., and Coryphantha
sp.) (Poole and Riskind 1987).
Lloyd's hedgehog cactus is usually found on limestone with
occasional weathered metamorphic rock. The cacti grow on sandy,
gravelly, or rocky soils
[[Page 30210]]
on slopes and hillsides, on bare rock ledges (Benson 1982, Weniger
1979), and on fine-textured alluvial soils (Poole and Zimmerman 1985).
Elevation of known localities is between 900 and 1650 meters (2950 and
5410 feet) (Benson 1982). Lloyd's hedgehog cactus typically grows on
open, fully exposed sites with very scattered forbs, grasses, and brush
(Weniger 1979). However, it also occurs in dense mesquite scrub among
tall grasses (Poole and Zimmerman 1985).
Lloyd's hedgehog cactus was listed as an endangered species on
October 26, 1979 (44 FR 61916) under the authority of the Endangered
Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq.). At the
time of listing, Lloyd's hedgehog cactus was considered to be a
distinct species, and to be threatened by overcollection, habitat loss
or alteration due to highway construction and maintenance, and
potentially by overgrazing by livestock.
It has long been recognized that the physical characteristics of
Lloyd's hedgehog cactus are intermediate between those of Echinocereus
dasyacanthus (Texas rainbow cactus) and Echinocereus coccineus (a
species of claret-cup cactus). There were several ideas about how such
intermediacy could have arisen. One theory was that Lloyd's hedgehog
cactus represented a primitive ancestral evolutionary lineage, which
diversified over time giving rise to two new lineages producing E.
dasyacanthus and E. coccineus. Another theory was that Lloyd's hedgehog
cactus was of hybrid origin, the result of ancient hybridization
between E. dasyacanthus and E. coccineus, but now an independent taxon
recognizable as a species.
While interspecific hybridization between members of the genus
Echinocereus had been reported, hybridization between E. coccineus and
E. dasyacanthus seemed highly unlikely as the two species differ
greatly in morphology, have different predominant pollinators (one
hummingbird pollinated, the other bee pollinated), and generally grow
in different habitats (one a more mesic species and the other typical
of more open desert). In addition, anywhere they had been grown or
found together they had been observed to bloom at different times with
little if any overlap. While many hybrids are sterile, plants of
Lloyd's hedgehog cactus were known to be fertile and able to reproduce.
Wild populations were known to have persisted for some time, and
treatment as a distinct species was generally accepted.
Steve Brack (U.S. Fish and Wildlife Service 1985) reported that in
his field examination of Lloyd's hedgehog cactus he had located plants
only in proximity to E. dasyacanthus and E. coccineus. This apparent
lack of isolation combined with the intermediate appearance of the
plants raised questions about the taxonomic interpretation of Lloyd's
hedgehog cactus as a distinct species. It suggested the possibility
that Lloyd's hedgehog cactus might be the result of recent and sporadic
hybridizations, and simply represent relatively unstable hybrid swarms
that were not evolving independently and should not be recognized as a
species. The Service determined that the potential hybrid status of
Lloyd's hedgehog cactus should be investigated.
Powell, Zimmerman, and Hilsenbeck (1991) conducted experimental
crosses, morphological analyses, pollen stainability studies,
chromosome counts, and phytochemical studies on the progeny from
experimental crosses between E. dasyacanthus and E. coccineus and on
naturally occurring Lloyd's hedgehog cacti. They demonstrated that
hybrids between E. dasyacanthus and E. coccineus could be easily
produced, closely resembled naturally occurring Lloyd's hedgehog cacti,
and were interfertile and able to backcross to the parental species to
produce another generation of plants. If such fertile hybrids were
produced in the wild, they could presumably multiply and backcross to
the parental species forming the sort of persistent intermediate
populations of high variability that are found naturally. Their work
suggested that Lloyd's hedgehog cactus could have arisen as a result of
hybridization between these other two species of Echinocereus, both of
which are common and not protected by the Act.
The probability that Lloyd's hedgehog cactus arose through
hybridization rather than representing a persistent ancestral condition
was heightened by Powell et al.'s (1991) finding that naturally
occurring Lloyd's hedgehog cacti have tetraploid chromosome numbers, as
do E. dasyacanthus and E. coccineus. Tetraploid chromosome numbers are
considered an advanced or recently derived characteristic in the
cactaceae, rather than a primitive one. Zimmerman (1992) made
additional observations on pollinators and other ecological and
phenological isolating mechanisms. He also did cladistic analyses of
the primitive and advanced species of the rainbow cacti and claret-cup
cacti taxonomic groups and Lloyd's hedgehog cactus. He agreed that
Lloyd's hedgehog cactus is not primitive and probably arose through
hybridization.
Concluding that plants recognized as Lloyd's hedgehog cactus arose
through hybridization raised questions about the integrity or
cohesiveness of populations and whether they were sufficiently
distinct, isolated, and independently evolving genomes that they should
be recognized as distinct species. Powell et al.'s (1991)
phytochemical, morphological, and crossing studies detected no unique
characters or reproductive isolation that would demonstrate any
independent evolution had occurred. Though their study lacked
comprehensive examination and interpretation of populations in the
field and throughout the known range, they suggested that plants
recognized as Lloyd's hedgehog cactus might represent mere sporadic
hybrid swarms in areas of E. dasyacanthus and E. coccineus sympatry,
and should probably be recognized only as a nothotaxon (a hybrid
recognized nomenclaturally for purposes of identification). They
designated their artificially produced hybrids as Echinocereus X
lloydii.
Zimmerman (1992) examined geographical distribution, correlations
with geographic variation across the range of Lloyd's hedgehog cactus
and its parental species, and population characteristics at several
sites in the wild. He found that Lloyd's hedgehog cactus was only found
in areas of sympatry between E. dasyacanthus and E. coccineus. Further,
sites with Lloyd's hedgehog cactus did not demonstrate populational
integrity or cohesion. Populations were not uniform in appearance and
exhibited great variation among individuals consistent with a pattern
of backcrossing or introgression with the parental species. Zimmerman
could find no evidence of reproductive isolation in the field. The
blooming time of Lloyd's hedgehog cactus overlapped both parental
species, and Lloyd's hedgehog cactus did not exhibit any habitat
preference that would provide any significant physical separation from
the parental species. He concluded that Lloyd's hedgehog cactus is not
a legitimate species, but felt that plants generally recognized as
Lloyd's hedgehog cactus were distinctive enough that for purposes of
description and identification it would be convenient to formally
designate them as a nothotaxon. His review of the nomenclature resulted
in the recommendation that plants formerly recognized as Echinocereus
lloydii should properly be referred to as the nothotaxon Echinocereus X
roetteri var. neomexicanus.
[[Page 30211]]
Previous Federal Action
Federal government action concerning Lloyd's hedgehog cactus began
with section 12 of the Act, which directed the Secretary of the
Smithsonian Institution to prepare a report on those plants considered
to be endangered, threatened, or extinct. This report (House Document
No. 94-51), which included Lloyd's hedgehog cactus, was presented to
Congress on January 9, 1975, and accepted by the Service under section
4(c)(2), now section 4(b)(3)(A), of the Act as a petition to list these
species. The report, along with a statement of the Service's intention
to review the status of the plant taxa, was published in the Federal
Register on July 1, 1975 (40 FR 27823). On June 16, 1976, the Service
published a proposed rule in the Federal Register (41 FR 24523) to
determine approximately 1,700 vascular plant species to be endangered
pursuant to section 4 of the Act. Lloyd's hedgehog cactus was included
in this proposal. Four general hearings pertaining to this proposal
were held in July and August of 1976, in the following cities--
Washington, D.C.; Honolulu, Hawaii; El Segundo, California; and Kansas
City, Missouri. A fifth public hearing was held on July 9, 1979, in
Austin, Texas, for seven Texas cacti, including Lloyd's hedgehog
cactus, and one fish. The final rule listing Lloyd's hedgehog cactus as
an endangered species was published on October 26, 1979 (44 FR 61916).
No critical habitat was designated.
The processing of this proposal to delist follows the Service's
final listing priority guidance published in the Federal Register on
May 16, 1996 (61 FR 24722). The guidance clarifies the order in which
the Service will process rulemakings following two related events: 1)
the lifting, on April 26, 1996, of the moratorium on final listings
imposed on April 10, 1995 (Public Law 104-6), and 2) the restoration of
significant funding for listing through passage of the omnibus budget
reconciliation law on April 26, 1996, following severe funding
constraints imposed by a number of continuing resolutions between
November 1995 and April 1996. The guidance calls for prompt processing
of draft listings, including proposed delistings, that were already in
the Service's Washington office and already approved by the field and
regional offices when the severe funding constraints were imposed in
early fiscal year 1996. A draft of this rule was approved by the
Service's Albuquerque Regional Director and transmitted to the
Washington office on April 4, 1995, where processing was postponed in
favor of other, higher priority listing actions.
Summary of Factors Affecting the Species
After a review of all information available, the Service is
proposing to remove Lloyd's hedgehog cactus from the List of Endangered
and Threatened Plants. Section 4(a)(1) of the Endangered Species Act
and regulations (50 CFR part 424) promulgated to implement the listing
provisions of the Act set forth the procedures for adding species to or
removing them from the Federal lists. The regulations at 50 CFR
424.11(d) state that a species may be delisted if (1) it becomes
extinct, (2) it recovers, or (3) the original classification data were
in error. Since the time of listing, additional study has shown that
Lloyd's hedgehog cactus is not a distinct species, but a hybrid. The
Service has concluded that the original taxonomic interpretation upon
which the listing decision was based was incorrect, and Lloyd's
hedgehog cactus does not qualify for protection because it does not fit
the definition of a species as specified in the Act.
A species may be determined to be an endangered or threatened
species due to one or more of the five factors described in Section
4(a)(1). At the time of listing it was believed that Lloyd's hedgehog
cactus was a distinct species and that several of these factors were
present. These factors and their application to Echinocereus lloydii
Britt. & Rose (Lloyd's hedgehog cactus) were discussed in detail in the
final rule (44 FR 61916) and included:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. The Service was concerned that
Lloyd's hedgehog cactus was vulnerable from past and potential habitat
destruction due to highway construction and maintenance, and the
potential destructive impacts of overgrazing in the rural rangeland
habitat.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. At the time of the final rule and continuing
today, Lloyd's hedgehog cactus is in world-wide demand by collectors of
rare cacti. Removal of plants from the wild has depleted natural
populations.
C. Disease or predation. At the time of listing it was believed
that Lloyd's hedgehog cactus, particularly young plants, could suffer
possible adverse affects from trampling by grazing livestock. The final
rule reported that light grazing did not seem to affect the species,
however, intense grazing could threaten its continued existence.
D. The inadequacy of existing regulatory mechanisms. At the time
Lloyd's hedgehog cactus was listed, the states of Texas and New Mexico
had no laws protecting endangered and threatened plants. Since the
listing, both states have enacted protective laws and regulations for
plants. Lloyd's hedgehog cactus is on the New Mexico State List of
Endangered Plant Species (9-10-10 NMSA 1978; NMFRCD Rule No. 91-1) and
on the Texas List of Endangered, Threatened or Protected Plants
(Chapter 88, Texas Parks and Wildlife Code).
On July 1, 1975, all members of the family cactaceae were included
in Appendix II of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES). CITES is an international
treaty established to prevent international trade that may be
detrimental to the survival of plants and animals. A CITES export
permit must be issued by the exporting country before an Appendix II
species may be shipped. CITES permits may not be issued if the export
will be detrimental to the survival of the species or if the specimens
were not legally acquired. However, CITES does not itself regulate take
or domestic trade.
E. Other natural or manmade factors affecting its continued
existence. Concern about a restricted gene pool due to a low number of
populations was listed in the final rule as a factor that could
intensify the adverse effects of other threats.
The Service's determination that Lloyd's hedgehog cactus should be
proposed for delisting is based on evidence that it is a hybrid that
does not qualify for protection under the Act, rather than on the
control of threats.
The Service has carefully assessed the best scientific and
commercial information available regarding the conclusion that Lloyd's
hedgehog cactus is a hybrid that does not qualify for protection under
the Act in determining to propose this rule. Based on this evaluation,
the preferred action is to remove Lloyd's hedgehog cactus from the List
of Endangered and Threatened Plants.
Effects of the Proposed Rule
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
plants. All prohibitions of section 9(a)(2) of the Act, implemented by
50 CFR 17.61, apply to Lloyd's hedgehog cactus. These prohibitions, in
part, make it illegal for any person subject to the jurisdiction of the
United States to import or export, transport in interstate or foreign
[[Page 30212]]
commerce in the course of a commercial activity, sell or offer for sale
in interstate or foreign commerce, or remove and reduce the cactus to
possession from areas under Federal jurisdiction. In addition, for
plants listed as endangered, the Act prohibits the malicious damage or
destruction on areas under Federal jurisdiction and the removal,
cutting, digging up, or damaging or destroying of such plants in
knowing violation of any State law or regulation, including State
criminal trespass law. If Lloyd's hedgehog cactus is removed from the
List of Endangered and Threatened Plants, these prohibitions would no
longer apply.
If Lloyd's hedgehog cactus is delisted, the requirements under
section 7 of the Act would no longer apply. Federal agencies would not
be required to consult with the Service on their actions that may
affect Lloyd's hedgehog cactus.
The 1988 amendments to the Act require that all species delisted
due to recovery be monitored for at least 5 years following delisting.
Lloyd's hedgehog cactus is being proposed for delisting because the
taxonomic interpretation that it is a species has been found to be
incorrect; Lloyd's hedgehog cactus is an unstable hybrid rather than a
distinct taxon. Therefore, no monitoring period following delisting is
required.
Some protection for Lloyd's hedgehog cactus may remain in place.
All cacti, including hybrids, are on Appendix II of CITES. CITES
regulates international trade of cacti, but does not regulate trade
within the United States or prevent habitat destruction.
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
the taxonomic status or threats (or lack thereof) to this apparent
hybrid;
(2) The location and characteristics of any additional populations
not considered in previous work that might have bearing on the current
taxonomic interpretation; and
(3) Additional information concerning range, distribution, and
population sizes, particularly if it would assist in the evaluation of
the accuracy of the current taxonomic interpretation.
The Service will take into consideration the comments and any
additional information received and such communications may lead to a
final regulation that differs from this proposal.
The Endangered Species Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days of the date of publication of the proposal in the Federal
Register. Such requests must be made in writing and addressed to Field
Supervisor (see ADDRESSES section).
National Environmental Policy Act
The Fish and Wildlife Service has determined that Environmental
Assessments and Environmental Impact Statements, as defined under the
authority of the National Environmental Policy Act of 1969, need not be
prepared in connection with regulations adopted pursuant to section
4(a) of the Endangered Species Act of 1973, as amended. A notice
outlining the Service's reasons for this determination was published in
the Federal Register on October 25, 1983 (48 FR 49244).
References Cited
Benson, L. 1982. The cacti of the United States and Canada. Stanford
University Press, Stanford, California. 1044 pp.
Britton, N.L. and J.N. Rose. 1937. The Cactaceae. Vol. III. 258:37-
38.
Correll, D.S. and M.C. Johnston. 1979. Manual of the vascular plants
of Texas. The University of Texas at Dallas, Richardson, Texas. 1881
pp.
Janssen, G.K. 1993. Project no. 35: assessment and management plan
development for listed and category plants on Texas Department of
Highways and Public Transportation rights-of-ways. Texas Parks and
Wildlife Department, Section 6 Grant Performance Report.
Poole, J.M. and D.H. Riskind. 1987. Endangered, threatened, or
protected native plants of Texas. Texas Parks and Wildlife
Department, Austin, Texas.
Poole, J.M. and A.D. Zimmerman. 1985. Endangered species information
system species record, Echinocereus lloydii. U.S. Fish and Wildlife
Service, Division of Endangered Species, Washington, D.C.
Powell, A.M., A.D. Zimmerman, and R.A. Hilsenbeck. 1991.
Experimental documentation of natural hybridization in Cactaceae:
origin of Lloyd's hedgehog cactus, Echinocereus X lloydii. Plant
Systematics and Evolution 178:107-122.
U.S. Fish and Wildlife Service. 1985. Minutes of the Joint Meeting,
Region 2 Plant Recovery Teams, January 10-11, 1985. Region 2,
Albuquerque, New Mexico.
Weniger, D. 1970. Cacti of the southwest. University of Texas Press,
Austin, Texas. 249 pp.
Weniger, D. 1979. Status report on Echinocereus lloydii. U.S. Fish
and Wildlife Service, Albuquerque, New Mexico. 11 pp.
Zimmerman, A.D. 1992. Systematics of Echinocereus X roetteri
(Cactaceae), including Lloyd's hedgehog-cactus. Southwestern Rare
and Endangered Plants; Proceedings of the Southwestern Rare and
Endangered Plant Conference. Forestry and Resources Conservation
Division of the New Mexico Energy, Minerals, and Natural Resources
Department. Miscellaneous Publication 2:270-288.
Authors
The primary authors of this document are Elizabeth Materna and
Kathryn Kennedy, Ecological Services Austin Field Office (see ADDRESSES
section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
Sec. 17.12 [Amended]
2. Section 17.12(h) is amended by removing the entry for
``Echinocereus lloydii'' under ``FLOWERING PLANTS'' from the List of
Endangered and Threatened Plants.
Dated: May 28, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-15124 Filed 6-13-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-15069 Federal Motor Vehicle Safety Standards; Power-Operated Window, Partition, and Roof Panel Systems; Correction
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Page 30209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15069]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket 87-10; Notice 8]
Federal Motor Vehicle Safety Standards; Power-Operated Window,
Partition, and Roof Panel Systems; Correction
AGENCY: National Highway Traffic Safety Administration; DOT.
ACTION: Correction.
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SUMMARY: In Docket 87-10, Notice 6, Notice of Proposed Rulemaking,
beginning on page 28124 in the issue of Tuesday, June 4, 1996, make the
following correction:
On page 28124 in the second column, 25th line, change the words
``Notice 6'' to ``Notice 7.''
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
FOR FURTHER INFORMATION CONTACT: Mr. Paul Atelsek, Office of the Chief
Counsel, NCC-20, telephone (202) 366-2992.
Issued: June 10, 1996.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 96-15069 Filed 6-13-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-15041 Fenarimol; Pesticide Tolerance For Residues in or on Filberts
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30200-30202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15041]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 5E4573/P662; FRL-5375-1]
RIN 2070-AC18
Fenarimol; Pesticide Tolerance For Residues in or on Filberts
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to establish a tolerance for residues of the
fungicide fenarimol in or on the raw agricultural commodity filberts.
The proposed regulation to establish a maximum permissible level for
residues of the fungicide was requested in a petition submitted by the
Interregional Research Project No. 4 (IR-4).
DATES: Comments, identified by the docket number [PP 5E4573/P662], must
be received on or before July 15, 1996.
ADDRESSES: By mail, submit written comments to: Public Response and
Program Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person, bring comments to: Rm. 1132, CM #2,
1921 Jefferson Davis Highway, Arlington, VA 22202.
Comments and data may also be submitted to OPP by sending
electronic mail (e-mail) to: [email protected]. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect 5.1 file format or ASCII file format.
All comments and data in electronic form must be identified by the
docket number [PP 5E4573/P662]. Electronic comments on this proposed
rule may be filed online at many Federal Depository Libraries.
Additional information on electronic submissions can be found in the
``SUPPLEMENTARY INFORMATION'' section of this document.
Information submitted as a comment concerning this document may be
claimed confidential by marking any part or all of that information as
``Confidential Business Information'' (CBI). CBI should not be
submitted through e-mail. Information marked as CBI will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2. A copy of the comment that does not contain CBI must be submitted
for inclusion in the public record. Information not marked confidential
may be disclosed publicly by EPA without prior notice. All written
comments will be available for public inspection in Rm. 1132 at the
Virginia address given above, from 8 a .m. to 4:30 p.m., Monday through
Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: By mail: Hoyt L. Jamerson,
Registration Division (7505W), Office of Pesticide Programs,
Environmental Protection Agency, 401 M St. SW., Washington, DC 20460.
Office location and telephone number: Sixth Floor, Crystal Station #1,
2800 Jefferson Davis Highway, Arlington, VA 22202, (703) 308-8783; e-
mail: [email protected].
SUPPLEMENTARY INFORMATION: The Interregional Research Project No. 4
(IR-4), New Jersey Agricultural Experiment Station, P.O. Box 231,
Rutgers University, New Brunswick, NJ 08903, has submitted pesticide
petition (PP) 5E4573 to EPA on behalf of the Oregon Filbert Commission.
This petition requests that the Administrator, pursuant to section
408(e) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C.
346a(e), amend 40 CFR 180.421 by establishing a tolerance for residues
of the fungicide fenarimol [alpha-(2-chlorophenyl)-alpha-(4-
chlorophenyl)-5-pyrimidine methanol] in or on the raw agricultural
commodity filberts at 0.02 parts per million (ppm).
The scientific data submitted in the petition and other relevant
material have been evaluated. The toxicological data considered in
support of the proposed tolerance include:
1. A 1-year feeding study with dogs fed diets containing 0, 1.25,
12.5, or 125 milligrams/kilogram (mg/kg)/day. The no-observed-effects
level (NOEL) for this study is established at 12.5 mg/kg/day. The high
dose level (125 mg/kg/day) caused increased serum alkaline phosphatase,
increased liver weights, an increase in p-nitroanisole o-demethylase
activity, and mild hepatic bile stasis.
2. A 2-year chronic feeding/carcinogenicity study in rats fed diets
containing concentrations of 0, 50, 130, or 350 ppm (equivalent to 0,
2.5, 6.5, or 17.5 mg/kg/day) with a systemic NOEL of 130 ppm
(equivalent to 6.5 mg/kg/day). An increase in fatty liver changes was
observed in rats fed diets containing 350 ppm. There were no
carcinogenic effects observed under the conditions of the study.
3. A second 2-year chronic feeding/carcinogenicity study in rats
fed diets containing 0, 12.5, 25, or 50 ppm (equivalent to 0, 0.63,
1.25, or 2.5 mg/kg/day) with no systemic or carcinogenic effects
observed under the conditions of the study.
4. A 2-year carcinogenicity study in mice fed diets containing
concentrations of 0, 50, 170, or 600 ppm (equivalent to 0, 7, 24.3, or
85.7 mg/kg/day) with a NOEL for systemic effects at 170 ppm. An
increase in fatty liver changes was observed in mice at the 600 ppm
dose level. There were no carcinogenic efects observed under the
conditions of the study.
5. A developmental toxicity study with rabbits given oral doses of
0, 5, 10, or 35 mg/kg/day with no developmental toxicity observed under
the conditions of the study.
6. A developmental toxicity study with rats given oral doses of 0,
5, 13, or 35 mg/kg/day demonstrated hydronephrosis at 35 mg/kg/day. The
NOEL for developmental toxicity in this study is established at 13 mg/
kg/day.
[[Page 30201]]
7. A second developmental toxicity study in rats (with a postpartum
evaluation) again demonstrated hydronephrosis at 35 mg/kg/day. Maternal
toxicity (decreased body weight gain) was also observed at the 35 mg/
kg/day. The NOEL's for developmental and maternal toxicity in this
study are established at 13 mg/kg/day.
8. A 3-generation reproduction study in rats fed diets containing
0, 12.5, 25, or 50 ppm (equivalent to 0.625, 1.25, or 2.5 mg/kg/day)
demonstrated decreased mating in males at the 25 ppm and delayed
parturition and dystocia in females at 25 ppm and 50 ppm. The NOEL for
reproductive effects in this study is established at 12.5 ppm. The
infertility effect in male rats is considered to be a species-specific
effect mediated by the inhibition of testosterone aromatase which
catalyzes the conversion of testosterone to estradiol in the
hypothalamus. Estradiol plays an essential role in the development and
maintenance of sexual behavior of rats but not in man.
9. Multi-generation reproduction studies that were negative for
reproductive effects at 35 mg/kg/day (highest dose tested) in guinea
pigs and 20 mg/kg/day (highest doses tested) in mice.
10. An aromatase inhibition study in rats that showed fenarimol to
be a moderately weak inhibitor of aromatase activity.
The adverse reproductive effects observed in the rat multi-
generation reproduction study are considered to be a species-specific
effect caused by aromatase inhibition. The aromatose enzyme promotes
normal sexual behavior in rats and mice, but not in guinea pigs, or
primates (including humans). A NOEL of 35 mg/kg/day for reproductive
effects relevant to humans was established based on the NOEL from the
multi-generation reproduction study in guinea pigs.
11. Fenarimol tested negative in several assay systems for gene
mutation, structural chromosome aberration and other genotoxic effects.
In a micronucleus test in the mouse, fenarimol did produce a
significant increase in the percent of polychromatic erythrocytes with
micronucleus at 24 hours, but not at 48 hours or 72 hours. The
significance of this finding is not known, but the negative results of
the other assays demonstrate that the mutagenic potential of fenarimol
is very low.
12. Metabolism studies in rats show that fenarimol is rapidly
metabolized and excreted. Major metabolic pathways were oxidation of
the carbinol-carbon atom, the phenyl rings and the pyrimidine ring.
Based on the above findings, the Agency concluded that fenarimol
was not carcinogenic in long-term studies in rats and mice under the
test conditions in which the highest dose tested for both species
approached a maximum-tolerated dose as evidenced by increased fatty
changes in the liver.
The Reference Dose (RfD) is calculated at 0.065 mg/kg bwt/day. The
RfD is based on a NOEL of 6.5 mg/kg/bwt/day from the 2-year rat chronic
feeding study and an uncertainty factor of 100. The theoretical maximum
residue contribution (TMRC) from previously established tolerances and
the proposed tolerance for filberts utilizes less than 1 percent of the
RfD for the general population and less than 2 percent of the RfD for
children 1 to 6 years of age (the population subgroup most highly
exposed to dietary residues of fenarimol). EPA generally has no concern
for exposures below 100 percent of the RfD.
The metabolism of fenarimol in plants is adequately understood for
the purposes of the proposed tolerance. The residue of concern is
fenarimol per se. An adequate analytical method, is available for
enforcement purposes. The analytical method is published in the
Pesticide Analytical Manual, Volume II (PAM II).
There is no reasonable expectation that secondary residues of
fenarimol will occur in milk, egg, or meat, fat, and meat byproducts of
livestock or poultry as a result of this action; there are no livestock
feed commodities associated with filberts.
There are presently no actions pending against the continued
registration of this chemical.
Based on the information and data considered, the Agency has
determined that the tolerance established by amending 40 CFR part 180
would protect the public health. Therefore, it is proposed that the
tolerance be established as set forth below.
Any person who has registered or submitted an application for
registration of a pesticide, under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) as amended, which contains any of the
ingredients listed herein, may request within 30 days after publication
of this notice in the Federal Register that this rulemaking proposal be
referred to an Advisory Committee in accordance with section 408(e) of
the FFDCA.
Interested persons are invited to submit written comments on the
proposed regulation. Comments must bear a notation indicating the
docket number [PP 5E4573/P662].
A record has been established for this rulemaking under docket
number [PP 5E4573/P662] (including comments and data submitted
electronically as described below). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which will also include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the address in ``ADDRESSES'' at the
beginning of this document.
Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), the Agency
must determine whether the regulatory action is ``significant'' and
therefore subject to all the requirements of the Executive Order (i.e.,
Regulatory Impact Analysis, review by the Office of Management and
Budget (OMB)). Under section 3(f), the order defines ``significant'' as
those actions likely to lead to a rule (1) having an annual effect on
the economy of $100 million or more, or adversely and materially
affecting a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities (also known as ``economically
significant''); (2) creating serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially altering the budgetary impacts of entitlement, grants, user
fees, or loan programs; or (4) raising novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in t his Executive Order. Pursuant to the terms of
this Executive Order, EPA has determined that this rule is not
``significant'' and is therefore not subject to OMB review.
This action does not impose any enforceable duty, or contain any
[[Page 30202]]
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by Executive Order 12898 (59 FR 7629,
February 16, 1994).
Pursuant to the requirements of the Regulatory Flexibility Act (5
U.S.C. 601-612), the Administrator has determined that regulations
establishing new tolerances or raising tolerance levels or establishing
exemptions from tolerance requirements do not have a significant
economic impact on a substantial number of small entities. A
certification statement explaining the factual basis for this
determination was published in the Federal Register of May 4, 1981 (46
FR 24950).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: June 3, 1996.
Stephen L. Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, it is proposed that 40 CFR part 180 be amended as
follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. In Sec. 180.421, the table in paragraph (a) is amended by adding
alphabetically the entry for filberts, to read as follows:
Sec. 180.421 Fenarimol; tolerances for residues.
(a) * * *
------------------------------------------------------------------------
Parts per
Commodity million
------------------------------------------------------------------------
* * * * *
Filberts................................................... 0.02
* * * * *
------------------------------------------------------------------------
* * * * *
[FR Doc. 96-15041 Filed 6-13-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-14935 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Naval Activities
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30212-30214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14935]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 960318084-6084-01; I.D. 031396E]
RIN 0648-AG55
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Naval Activities
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of receipt of a petition for regulations, and an
application for a
[[Page 30213]]
small take exemption; request for comment and information.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from the U.S. Navy for a small
take of marine mammals incidental to shock testing the USS SEAWOLF
submarine in the offshore waters of the U.S. Atlantic coast in 1997. As
a result of that request, NMFS is considering whether to propose
regulations that would authorize the incidental taking of a small
number of marine mammals. In order to implement regulations and issue
an authorization, NMFS must determine that these takings will have a
negligible impact on the affected species and stocks of marine mammals.
NMFS invites comment on the application and suggestions on the content
of the regulations.
DATES: Comments and information must be postmarked no later than July
15, 1996.
ADDRESSES: Comments should be addressed to Chief, Marine Mammal
Division, Office of Protected Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910-3226. A copy
of the application may be obtained by writing to the above address,
telephoning the person below (see FOR FURTHER INFORMATION CONTACT) or
by leaving a voice mail request at (301) 713-4060.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead (301) 713-
2055.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Marine Mammal Protection Act (16
U.S.C. 1361 et seq.) (MMPA) directs the Secretary of Commerce to allow,
upon request, the incidental, but not intentional taking of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and regulations are issued.
Permission may be granted for periods of 5 years or less if the
Secretary finds that the taking will have a negligible impact on the
species or stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses, and
regulations are prescribed setting forth the permissible methods of
taking and the requirements pertaining to the monitoring and reporting
of such taking.
Summary of Request
On June 7, 1996, NMFS received an application for an incidental,
small take exemption under section 101(a)(5)(A) of the MMPA from the
U.S. Navy to take marine mammals incidental to shock testing the USS
SEAWOLF submarine off the U.S. Atlantic coast. The USS SEAWOLF is the
first of a new class of submarines being acquired by the Navy. In
accordance with 10 U.S.C. 2366, each new class of ships constructed for
the Navy cannot proceed beyond initial production until realistic
survivability testing of the system is completed. Realistic
survivability testing means testing for the vulnerability of the system
in combat by firing munitions likely to be encountered in combat. This
testing and assessment is commonly referred to as ``Live Fire Test &
Evaluation (LFT&E).'' Because realistic testing by detonating torpedoes
or mines against a ship's hull could result in the loss of a multi-
billion dollar Navy asset, the Navy has established an LFT&E program
consisting of computer modeling, component and surrogate testing, and
shock testing the entire ship. Together, these components complete the
survivability testing as required by 10 U.S.C. 2366.
The shock test component of LFT&E is a series of underwater
detonations that propagate a shock wave through a ship's hull under
deliberate and controlled conditions. Shock tests simulate near misses
from underwater explosions similar to those encountered in combat.
Shock testing verifies the accuracy of design specifications for shock
testing ships and systems, uncovers weaknesses in shock sensitive
components that may compromise the performance of vital systems, and
provides a basis for correcting deficiencies and upgrading ship and
component design specifications. While computer modeling and laboratory
testing provide useful information, they cannot substitute for shock
testing under realistic, offshore conditions. To minimize cost and risk
to personnel, the first ship in each new class is shock tested and
improvements are applied to later ships of the class.
The Navy proposes to shock test the USS SEAWOLF by detonating a
single 4,536-kg (10,000-lb) explosive charge near the submarine once
per week over a 5-week period between April 1 and September 30, 1997.
(If the Mayport FL site is selected, the shock tests would be conducted
between May 1 and September 30, 1997 in order to minimize risk to sea
turtles). Detonations would occur 30 m (100 ft) below the ocean surface
in a water depth of 152 m (500 ft). The USS SEAWOLF would be underway
at a depth of 20 m (65 ft) at the time of the test. For each test, the
submarine would move closer to the explosive so the submarine would
experience a more severe shock.
As part of a separate review under the National Environmental
Policy Act (NEPA), two sites are being considered by the Navy for the
USS SEAWOLF shock test effort. The Mayport site is located on the
continental shelf of Georgia and northeast Florida and the Norfolk site
is located on the continental shelf offshore of Virginia and North
Carolina.
Potential impacts to the several marine mammal species known to
occur in these areas from shock testing include both lethal and non-
lethal injury, as well as harassment. Death or injury may occur as a
result of the explosive blast, and harassment may occur as a result of
non-injurious physiological responses to the explosion-generated
shockwave and its acoustic signature. The Navy believes it is very
unlikely that injury will occur from exposure to the chemical by-
products released into the surface waters, and no permanent alteration
of marine mammal habitat would occur. While the Navy does not
anticipate any lethal takes would result from these detonations,
calculations indicate that the Mayport site has the potential to result
in one lethal take, 5 injurious takes, and 570 harassment takes, while
the Norfolk site has the potential to result in 8 lethal takes, 38
injurious takes, and 4,819 harassment takes. Because of the potential
impact to marine mammals, the Navy has requested NMFS to promulgate
regulations and issue a letter of authorization under section
101(a)(5)(A) of the MMPA that would authorize the incidental taking.
The Navy's proposed action includes mitigation that would minimize
risk to marine mammals and sea turtles. The Navy would: (1) Through
pre-detonation aerial surveys, select a test area with the lowest
possible number of marine mammals and turtles; (2) monitor the area
visually (aerial and shipboard monitoring) and acoustically before each
test and postpone detonation if any marine mammal or sea turtle is
detected within a safety zone of 3.7 km (2 nmi); and (3) monitor the
area after each test to find and treat any injured animals. If post-
detonation monitoring shows that marine mammals or sea turtles were
killed or injured as a result of the test, testing would be halted
until procedures for subsequent detonations could be reviewed and
changed as necessary.
NEPA
The Navy has released a draft environmental impact statement under
NEPA for public review and comment on this action. NMFS is a
cooperating agency as defined by the Council on
[[Page 30214]]
Environmental Quality (40 CFR 1501.6). For information on the
availability of that document, please refer to the appropriate notice
elsewhere in this issue of the Federal Register.
Information Solicited
NMFS requests interested persons to submit comments, information,
and suggestions concerning the request and the structure and content of
regulations to allow the taking. NMFS will consider this information in
determining the appropriate action to take in response to this request.
If NMFS proposes regulations to allow this take, a rule will be
published in the Federal Register and interested parties will be given
ample time and opportunity to comment.
Dated: June 7, 1996.
Patricia A. Montanio,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 96-14935 Filed 6-13-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-14911 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30207-30209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14911]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5519-3]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List
AGENCY: Environmental Protection Agency.
ACTION: Notice of Intent to Delete the Leetown Pesticides Site in
Leetown, Jefferson County, West Virginia, from the National Priorities
List; Request for Comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) Region III announces
its intent to delete the Leetown Pesticides Site (Site) from the
National Priorities List (NPL) and requests public comment on this
proposed action. The NPL constitutes Appendix B to 40 CFR part 300.
Part 300 comprises the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), which EPA promulgated pursuant to Section 105
of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) of 1980, as amended. EPA and the West Virginia
Division of Environmental Protection have determined that all
appropriate CERCLA actions have been implemented and that the Site
poses no significant threat to public health or the environment.
Therefore, further remedial measures pursuant to CERCLA are not needed.
DATES: Comments concerning the proposed deletion of the Site from the
NPL may be submitted on or before July 15, 1996.
ADDRESSES: Comments may be submitted to EPA's Remedial Project Manager
for the Leetown Pesticides Site: Melissa Whittington (3HW23), U.S. EPA
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107,
([email protected])
Comprehensive information on this Site is available for viewing at
the Site information repositories at the following locations:
U.S. EPA Region III, 9th Floor Library, 841 Chestnut Building,
Philadelphia, Pennsylvania 19107
Old Charles Town Public Library, 200 East Washington Street, Charles
Town, West Virginia 25414
FOR FURTHER INFORMATION CONTACT: Melissa Whittington, Remedial Project
Manager, at the address above or by telephone at (215) 566-3235.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis For Intended Site Deletion
I. Introduction
The Environmental Protection Agency (EPA) Region III announces its
intent to delete the Leetown Pesticides Site, which is located in
Leetown, West Virginia, from the National Priorities List (NPL),
Appendix B to 40 CFR part 300, the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP), and requests comments on
this decision. EPA identifies sites that appear to present a
significant risk to public health or the environment and maintains the
NPL as the list of those sites. As discussed in the NCP at 40 CFR
300.425(e)(3), a site deleted from the NPL remains eligible for
remedial action in the unlikely event that conditions at the site
warrant such action in the future.
EPA will accept comments on the proposal to delete this Site from
the NPL for thirty calendar days after publication of this notice in
the Federal Register.
Section II of this notice explains the criteria for deleting sites
from the NPL. Section III discusses the procedures that EPA is using
for this action. Section IV discusses the Leetown Pesticides Site and
explains how the Site meets the deletion criteria.
II. NPL Deletion Criteria
The NCP at 40 CFR 300.425(e) provides that sites may be deleted
from or recategorized on the NPL where no further response is
appropriate. Specifically, this section of the NCP provides that, in
making a determination to delete a site from the NPL, EPA shall
consider, in consultation with the State, whether any of the following
criteria have been met:
(i) Responsible parties or other persons have implemented all
appropriate response actions required;
(ii) All appropriate Fund-financed response under CERCLA has been
implemented, and no further action by responsible parties is
appropriate; or
(iii) The remedial investigation has shown that the release poses
no significant threat to public health or the environment and,
therefore, taking of remedial measures is not appropriate.
The NCP at 40 CFR 300.425(e) further provides that sites may not be
deleted from the NPL until the State in which the site is located has
concurred on the proposed deletion. All sites deleted from the NPL are
eligible for further Fund-financed remedial actions should future
conditions warrant such action. Whenever there is a significant release
from a site deleted from the NPL, the site shall be restored to the NPL
without application of the Hazard Ranking System.
Deletion of a site from the NPL does not itself create, alter, or
revoke any individual's rights or obligations. The NPL is designed
primarily for informational purposes and to assist Agency management.
III. Deletion Procedures
The procedures required to ensure public involvement during a
proposal to delete a site from the NPL are enumerated at 40 CFR
300.425(e)(4). Pursuant to that section, EPA has published this Notice
of Intent to Delete, together with concurrent notices in the local
newspapers in the vicinity of the Site, to announce the initiation of a
30-day public comment period. The public is asked to comment on EPA's
intention to delete the Site from the NPL. All documents supporting
EPA's intention to delete the Site from the NPL are available for
inspection by the public at the information repositories located at the
addresses listed above.
EPA will accept and evaluate public comments on this Notice of
Intent to Delete before making a final decision on the deletion. If EPA
receives any significant comments during the public comment period, the
Agency will prepare a Responsiveness Summary to address those comments.
A deletion occurs when the Regional Administrator places a final
deletion notice in the Federal Register. Once this
[[Page 30208]]
has occurred, each subsequent publication of the NPL will reflect that
the Site has been deleted. Public notices and copies of the
Responsiveness Summary, if any, will be placed in the Site information
repositories listed above.
IV. Basis for Intended Site Deletion
The following site summary provides EPA's rationale for the
proposal to delete the Leetown Pesticides Site from the NPL:
A. Site Background
The Site is located in Leetown, Jefferson County, West Virginia, in
the extreme northeastern portion of the state, approximately 8 miles
south of Martinsburg, West Virginia. The Site consists of three
separate parcels in the vicinity of the town of Leetown which were
contaminated with pesticides: the former Pesticide Pile Area, the
former Pesticide Mixing Shed, and the Crimm Orchard Packing Shed.
The former Pesticide Pile Area is alleged to have received
pesticide-contaminated debris from a fire at a local chemical company
in 1975. The contamination at the former Pesticide Pile Area was the
residue left after the removal of approximately 160 cubic yards of
pesticide-contaminated debris in June of 1983.
The former Pesticide Mixing Shed was used during the active
operation of the Jefferson Orchard to formulate pesticides for use at
the orchard. The eastern portion of the Crimm Orchard Packing Shed was
used for the formulation of pesticides for application at the former
Crimm Orchard and for storing containers of pesticides, most of which
were open and leaking.
The contaminants of concern at the Site included DDT and its
metabolites, DDD and DDE, and the alpha, beta, delta, and gamma isomers
of hexachlorocyclohexane (HCCH). Gamma HCCH is also known as Lindane.
B. History and Characterization of Risk
Evidence of hazardous waste activity was first brought to the
attention of EPA in 1981 by representatives of the National Fisheries
Center in nearby Kearneysville, West Virginia. Between 1980 and 1983,
EPA conducted a number of investigations which included sampling of the
debris pile in the former Pesticide Pile Area and locations in the
immediate vicinity of the Pesticide Pile Area, including residential
wells, the Fisheries Center, the Grey and Bell Springs, and the
Jefferson County solid waste landfill. The Site was proposed for
inclusion on the original Superfund NPL in December of 1982, and
officially placed on the NPL in September of 1983.
EPA conducted sampling for the Remedial Investigation (RI) between
1984 and 1985. The RI focused on areas in the vicinity of Leetown where
the surface disposal of pesticides, agricultural use of pesticides or
the landfilling of pesticides had occurred. The areas to be
investigated were identified through an aerial photographic survey
conducted by EPA and information received from local sources. After
evaluating the results of the RI sampling, EPA narrowed the areas of
concern to the former Pesticide Pile Area, the former Pesticide Mixing
Shed, and the Crimm Orchard Packing Shed. The RI determined the extent
of contamination and the risks to human health and the environment
posed by the contamination in these areas. The RI was followed by a
Feasibility Study (FS), also conducted by EPA, which identified cleanup
alternatives to address those risks.
The RI and FS reports were released to the public for review on
March 6, 1986. This marked the beginning of the public comment period
which closed on March 27, 1986. During the comment period, EPA
recommended Alternative 7 from the FS as EPA's preferred remedial
alternative. A public meeting to discuss EPA's preferred remedial
alternative was held on March 20, 1986. On March 31, 1986, a Record of
Decision (ROD) was issued which identified Alternative 7 as the
Selected Remedy. Alternative 7 consisted of the following actions: (1)
Demolition and off-site disposal of the eastern portion of the Crimm
Orchard Packing Shed and its contents; and (2) anaerobic biodegradation
of the pesticide-contaminated soils from the former Pesticide Pile
Area, the former Pesticide Mixing Shed and the soils from under the
Crimm Orchard Packing Shed. A total estimated volume of 3,600 cubic
yards of soil were to be consolidated and placed in treatment beds to
be constructed on-site.
The demolition and off-site disposal of the eastern portion of the
Crimm Orchard Packing Shed and its contents began on February 24, 1988
and was completed on April 22, 1988. EPA performed treatability studies
for the bioremediation of the consolidated soils on two separate
occasions. The first treatability study, which tested the effectiveness
of anaerobic biodegradation, was performed from May 1986 to April 1987.
This study was not successful in meeting the cleanup levels specified
in the ROD. EPA performed treatability studies for two other biological
treatment processes from April 1989 to January 1990. One process
utilized white rot fungus; the other process utilized a combination of
aerobic and anaerobic biodegradation. Again, neither of these processes
were able to successfully treat the soils to meet the cleanup levels
specified in the ROD.
In 1990, as part of the second phase of treatability studies, EPA
reviewed the cleanup levels established in the ROD to determine if
these levels continued to be appropriate to protect human health and
the environment. During this review, it was discovered that the
methodology used in the 1986 risk assessment was no longer utilized by
EPA in determining risks to human health. Specifically, the 1986 risk
assessment was based on the maximum human exposure to the contaminants
at the Site, including the maximum observed concentrations. However,
the Risk Assessment Guidance for Superfund (RAGS) which EPA issued in
December of 1989, EPA/540/1-89/002, stated that quantitative risk
assessments should be based on Reasonable Maximum Exposure (RME)
scenarios. Because the 1986 risk assessment appeared to be overly
conservative compared to a risk assessment that would result from
utilizing RAGS, EPA recalculated the risks to human health using the
RME scenarios and determined that the contaminants of concern at the
Site did not pose an unacceptable risk to human health or the
environment.
On February 6, 1992, as a result of the revised risk assessment
described above, EPA issued a Proposed Remedial Action Plan (Proposed
Plan) which identified ``No Further Action'' as EPA's preferred
remedial alternative for this Site. Issuance of this Proposed Plan
marked the beginning of the public comment period. On February 20,
1992, a public meeting was held at the National Fisheries Center to
answer questions from community members and facilitate public input on
the Proposed Plan. The public comment period closed on March 6, 1992.
On April 7, 1992, EPA issued a ROD Amendment which identified No
Further Action as the Selected Remedy for the Site.
On April 7, 1992, EPA also issued a Superfund Preliminary Site
Closeout Report. This closeout report indicated that all remedial
action activities required for protection of human health and the
environment had been satisfactorily completed. The ROD Amendment did
not provide any provisions for long-term monitoring of the Site because
the only portion of the originally selected remedial action which was
completed was off-site
[[Page 30209]]
disposal. Therefore, no operation and maintenance activities are
required.
Although the remedial action was completed in April of 1988, the
monitoring wells installed and utilized during the RI had to be
properly abandoned prior to deletion of the Site from the NPL. In the
spring of 1995, the U.S. Army Corps of Engineers, Baltimore District
was tasked under an interagency agreement with EPA to properly abandon
all monitoring wells except those which Jefferson County chose to
retain for use in monitoring the groundwater in the vicinity of its
solid waste landfill. This work was completed in June of 1995. On
August 24, 1995, EPA accepted the Corps of Engineers' report entitled
``Closure Report: Abandonment of Monitoring Wells, Leetown Pesticides
Superfund Site, Leetown West Virginia'' as a final document.
EPA is required to review remedial actions every five years if
hazardous substances, pollutants, or contaminants remain at the site
above levels that allow for unrestricted exposure and unlimited use.
Since neither of these conditions exists at this Site, further five-
year reviews are not warranted and will not be conducted.
C. Conclusion
The NCP at 40 CFR 300.425(e)(ii) provides that EPA may delete a
site from the NPL if ``all appropriate Fund-financed response under
CERCLA has been implemented, and no further action by responsible
parties is appropriate.'' EPA, with the concurrance of the State of
West Virginia, believes that this criterion for deletion has been met.
Therefore, EPA is proposing deletion of this Site from the NPL.
Documents supporting this action are available in the Site information
repositories listed previously in this document.
Dated: June 4, 1996.
Stanley L. Laskowski,
Acting Regional Administrator, U.S. EPA Region III.
[FR Doc. 96-14911 Filed 6-13-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-14183 Phase Two Recommendations of Task Force on Disclosure Simplification
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30405-30429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14183]
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 /
Proposed Rules
[[Page 30405]]
SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 230, 239, 240, 249, and 274
[Release Nos. 33-7301 and 34-37263; S7-15-96]
RIN 3235-AG80
Phase Two Recommendations of Task Force on Disclosure
Simplification
AGENCY: Securities and Exchange Commission.
ACTION: Proposed rules.
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SUMMARY: After considering certain of the recommendations contained in
the Report of the Task Force on Disclosure Simplification, the
Commission now proposes to eliminate two forms and one rule that may no
longer be necessary or appropriate for the protection of investors. The
Commission also proposes to add one rule, and to amend nine rules and
17 forms in order to eliminate unnecessary requirements and to
streamline the disclosure process.
DATES: Comments should be submitted on or before July 29, 1996.
ADDRESSES: All comments concerning the rule proposals should be
submitted in triplicate to Jonathan G. Katz, Secretary, U.S. Securities
and Exchange Commission, Mail Stop 6-9, 450 Fifth Street NW.,
Washington, DC 20549. Comments also may be submitted electronically at
the following E-mail address: [email protected]. All comment
letters should refer to File Number S7-15-96; this file number should
be included on the subject line if E-mail is used. Comment letters will
be available for inspection and copying in the public reference room at
the same address. Electronically submitted comment letters will be
posted on the Commission's Internet web site (http://www.sec.gov).
FOR FURTHER INFORMATION CONTACT: Felicia H. Kung, Division of
Corporation Finance, at (202) 942-2990.
SUPPLEMENTARY INFORMATION: After considering certain of the
recommendations of the Task Force on Disclosure Simplification, the
Commission today is proposing the amendment of Rule 401,1 Rule
424,2 Rule 462,3 Rule 463 4 and Rule 503 5 under
the Securities Act of 1933 (``Securities Act'').6 The Commission
also is proposing the elimination of Rule 507 7 under the
Securities Act. Amendments are being proposed to the following
Securities Act forms: Form SB-1,8 Form SB-2,9 Form S-
1,10 Form S-3,11 Form S-11,12 Form S-4,13 Form F-
1,14 Form F-3,15 Form F-4 16 and Form D.17 In
addition, the Commission proposes the elimination of Form SR 18
under the Securities Act and Form 8-B 19 under the Securities
Exchange Act of 1934 (``Exchange Act'').20 The Commission proposes
to add Rule 12a-8 21 under the Exchange Act. In addition,
amendments are being proposed to the following Exchange Act rules and
forms: Rule 12d1-2,22 Rule 12g-3,23 Rule 15d-5,24 Form
8-A,25 Form 20-F,26 Form 10-Q,27 Form 10-QSB,28
Form 10-K,29 and Form 10-KSB.30 Amendments also are being
proposed to the following rule and form applicable to investment
companies: Rule 497 under the Securities Act 31 and Form N-2
32 under the Investment Company Act of 1940.33
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\1\ 17 CFR 230.401.
\2\ 17 CFR 230.424.
\3\ 17 CFR 230.462.
\4\ 17 CFR 230.463.
\5\ 17 CFR 230.503.
\6\ 15 U.S.C. 77a et seq.
\7\ 17 CFR 230.507.
\8\ 17 CFR 239.9.
\9\ 17 CFR 239.10.
\10\ 17 CFR 239.11.
\11\ 17 CFR 239.13.
\12\ 17 CFR 239.18.
\13\ 17 CFR 239.25.
\14\ 17 CFR 239.31.
\15\ 17 CFR 239.33.
\16\ 17 CFR 239.34.
\17\ 17 CFR 239.500.
\18\ 17 CFR 239.61.
\19\ 17 CFR 249.208b.
\20\ 15 U.S.C. 78a et seq.
\21\ 17 CFR 240.12a-8.
\22\ 17 CFR 240.12d1-2.
\23\ 17 CFR 240.12g-3.
\24\ 17 CFR 240.15d-5.
\25\ 17 CFR 249.208a.
\26\ 17 CFR 249.220f.
\27\ 17 CFR 249.308a.
\28\ 17 CFR 249.308b.
\29\ 17 CFR 249.310.
\30\ 17 CFR 249.310b.
\31\ 17 CFR 230.497.
\32\ 17 CFR 239.14 and 274.11a-1.
\33\ 15 U.S.C. 80a-1 et seq.
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I. Background
On March 5, 1996, the Task Force on Disclosure Simplification
(``Task Force'') presented its Report (``Task Force Report''),34
which recommended the elimination or modification of many rules and
forms, and proposed suggestions for simplifying significant aspects of
securities offerings. In conjunction with the publication of the Task
Force Report, the Commission proposed for public comment the
elimination of 45 rules and four forms. Most of these proposals are
being adopted today in a separate release.35
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\34\ The Task Force Report is available for inspection and
copying in the Commission's public reference room. The Report also
is posted on the Commission's Internet web site (http://
www.sec.gov). Persons interested in commenting on the Report may do
so by referring to File No. S7-6-96 and, as noted above, submitting
comments in paper or electronically.
\35\ See Release No. 33-7300 (May 31, 1996).
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After further consideration of the Task Force recommendations, the
Commission now is proposing for public comment the further elimination
of two forms and one rule. The Commission also is proposing to add one
rule, and to amend nine rules and 17 forms in order to simplify and
improve the disclosure process.
The Commission's issuance of these proposals does not reflect its
views on the merits of the remaining recommendations in the Task Force
Report that it has not yet considered. As it further considers other
recommendations made in the Task Force Report, the Commission
anticipates making other proposals aimed at streamlining the disclosure
process.
The Commission's principal proposals contained in this release are
as follows:
The Form D federal filing requirement would be
eliminated for the Regulation D 36 and Section 4(6) 37
exemptions, although Form D itself would be retained;
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\36\ 17 CFR 230.501 through 17 CFR 230.508.
\37\ 15 U.S.C. 77d(6).
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Form SR, the use of proceeds report for initial public
offerings, would be eliminated, and the information currently required
by Form SR would be required in Exchange Act periodic reports;
Form 8-B, which pertains to the registration of the
securities of successor issuers, would be eliminated;
The Securities Act registration forms would be amended
to permit issuers to register concurrently a public offering under the
Securities Act and a class of securities under the Exchange Act by
filing a single form that would cover both registrations;
Form 8-A, the short-form Exchange Act registration
statement, would be amended to provide automatic effectiveness for all
securities that are registered on that Form, as currently is the case
for exchange-listed debt securities; and
Post-effective amendments to Securities Act
registration statements filed solely to add exhibits would become
effective automatically upon filing.
[[Page 30406]]
II. Forms
A. Form D
The Commission currently requires the filing of Form D by an issuer
that engages in an unregistered offering of its securities in reliance
on an exemption under Regulation D or Section 4(6) of the Securities
Act. For each claimed exempt offering, an issuer must file a Form D
with the Commission no later than 15 days after the first sale of
securities. Form D requires the issuer to disclose basic information
concerning the identity of the issuer and the offering, including the
exemption being claimed and information regarding the offering price,
number of investors, expenses, and use of proceeds. An issuer also may
use the Form to give notice to state securities regulators of its
reliance on the Uniform Limited Offering Exemption (``ULOE'') 38
for its securities offering exemption in states that have adopted ULOE
and Form D.
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\38\ See NASAA Rep. (CCH) para. 6201. The North American
Securities Administrators Association, Inc. (``NASAA'') adopted the
ULOE in 1983 to provide a model blue sky exemption for certain
offers or sales of securities that are sold in compliance with Rules
505 and 506 of Regulation D under the Securities Act. The purposes
of the ULOE are two-fold: to create a state limited offering
exemption that is compatible with federal exemptions and to create a
uniform exemption that could be adopted by the states.
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The Commission proposes to amend Form D to eliminate the federal
requirement that issuers file Form D when relying on the Regulation D
or Section 4(6) exemptions.39 A Form D typically provides only
minimal information about the issuer and the offering. Moreover, the
Commission does not require an issuer to file a notice when making
offerings under certain other exemptions from Securities Act
registration, such as an intrastate offering under the Rule 147 safe
harbor.40 Certain information regarding unregistered sales,
similar to that provided in Form D, is currently required by Item 701
of Regulation S-K,41 which applies to an issuer registering an
initial public offering or other offering of securities on Form S-1, as
well as to a foreign private issuer registering an offering of
securities on Form F-1. Small business issuers are required to disclose
similar information pursuant to the requirements of Form SB-1 and the
requirements of Item 701 of Regulation S-B,42 which applies to
offerings registered on Form SB-2.43
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\39\ In 1994, 7,494 filings on Form D were made. From January
through October 1995, 6,066 filings were made.
\40\ 17 CFR 230.147. See also 15 U.S.C. 77c(a)(11).
\41\ 17 CFR 229.701.
\42\ 17 CFR 228.701.
\43\ The Commission has proposed to require disclosure requiring
unregistered sales on a quarterly basis, including information about
sales pursuant to Regulation D. See Release No. 33-7189 (June 27,
1995) (60 FR 35656).
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Although the additional information provided in Form D is of
minimal usefulness for federal purposes, the Commission notes that many
states appear to find that Form useful. The Commission recognizes that
a single federal form has obviated the need for multiple state forms
for the purposes of ULOE. Thus, the Form has had the effect of creating
a uniform state approach to ULOE notifications.
As a result, the Commission proposes to retain Form D, but to
eliminate the Form D filing requirement for the Regulation D and
Section 4(6) exemptions. The Commission proposes to amend Rule 503,
which sets forth the notice filing requirement for issuers claiming a
Regulation D exemption, to require issuers to prepare and retain the
Form D notice after the first sale of securities. As proposed, Form D
would be required to be retained by the issuer in its records for at
least three years after the first sale of securities made in reliance
on Regulation D, subject to possible inspection by the Commission's
staff. Since the requirement to file Form D would be rescinded, the
Commission proposes to eliminate Rule 507, which provides that an
issuer is ineligible to claim a Regulation D exemption if it has
previously been subject to a court order for failing to comply with the
notice requirement of Rule 503. The Commission looks forward to working
with NASAA in reconciling differing federal and state regulatory needs
with respect to Form D.
Comment is requested as to whether Form D is useful to investors
and issuers. Should Form D be rescinded altogether? Does Form D provide
information that would not otherwise be available in other disclosure
documents? Should the Commission require issuers to prepare and retain
Form D only if they are required to file the Form for state securities
law purposes? Rather than require the preparation of the Form at all,
should the Commission require issuers to have available upon request by
the Commission or its staff the information currently contained in Form
D for a three-year period? Would the elimination of the Form D filing
requirement for Regulation D purposes hinder the securities offering
exemption program in those states that have adopted ULOE and Form D?
Are there any states that require a Form D in Rule 504 offerings and is
it necessary to maintain a Form D recordkeeping requirement for
offerings pursuant to Rule 504? Should Form D be revised to reflect its
primary usefulness for state regulatory purposes, and if so, how? Is a
recordkeeping requirement for Form D reasonable, and if so, would a
shorter period, e.g., one year or two years, or longer period, e.g.,
five years, be more appropriate?
The Commission solicits comment on whether Form D should be
eliminated for Regulation D purposes, but retained for the purposes of
Section 4(6). If Form D is retained for Section 4(6) purposes, should
issuers be required only to prepare and retain, rather than file, the
Form?
If the proposal to require quarterly disclosure of unregistered
sales is adopted, would this adequately substitute for the information
provided by Form D with respect to issuers required to file reports
with the Commission? Would this create an information gap with respect
to non-reporting issuers? Should Form D be eliminated only if the
Commission adopts this proposal?
B. Form SR
Rule 463 under the Securities Act requires issuers to report on
Form SR the use of proceeds following an initial public offering within
ten days of the first three months following the effective date of the
registration statement, and every six months thereafter, until the
later of the termination of the offering or the application of all the
offering proceeds.44 The Commission proposes to eliminate Form SR
in favor of requiring first-time issuers to report the use of proceeds
in their first periodic Exchange Act report (quarterly report or annual
report, whichever is filed first) after effectiveness, and thereafter
in their periodic Exchange Act reports through the later of the
application of the proceeds or the termination of the offering.
Although this proposal would increase the frequency with which domestic
issuers would report this information, the consolidation of disclosure
requirements would facilitate reporting by registrants by reducing the
number of forms they would be required to file to satisfy their
substantive reporting obligations. Furthermore, these important
disclosures regarding the use of proceeds and the progress of the
offering would appear within a
[[Page 30407]]
filing that is more commonly monitored by investors, and would further
the integrated disclosure scheme.
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\44\ In 1994 and 1995, 2,103 and 1,635 such filings were made,
respectively.
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The Commission proposes to amend Rule 463 to reflect the proposed
changes. In addition, the Commission proposes to amend the periodic
reporting forms under the Exchange Act (Forms 10-Q, 10-QSB, 10-K, and
10-KSB) by adding a disclosure item that would require all of the
information currently required by Form SR.45 Of course, the
disclosure would continue to be required only of first-time issuers.
Comment is solicited on whether the disclosure requirement should
instead be placed in Regulations S-K and S-B, with the periodic
reporting forms referring to that disclosure item.
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\45\ The proposed amendments to these forms assume that the
Commission's rule proposal pertaining to disclosure of Item 701 of
Regulations S-K and S-B information on a quarterly basis (see n.43
above) is adopted before these proposed amendments are adopted. As
currently contemplated, the use of proceeds information would appear
as a separate item in the periodic report immediately following the
Item 701 information. If the Item 701 rule proposal is not adopted
before the amendments proposed today, corresponding changes would be
made to the item designations within the amended forms.
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The Commission also proposes to amend Form 20-F, the Exchange Act
annual report form applicable to foreign private issuers,46 to
require disclosure of the use of proceeds information currently
contained in Form SR. Foreign private issuers, unlike domestic issuers,
are not required to file Exchange Act periodic reports on Forms 10-Q or
10-KSB, but are required to submit to the Commission the periodic
reports prepared in accordance with home jurisdiction requirements. As
a result of the Commission's proposal, foreign private issuers would be
reporting the use of proceeds information on an annual, rather than
quarterly, basis. Comment is requested as to whether it is appropriate
to permit foreign private issuers to report use of proceeds information
on a less frequent basis than domestic issuers. Should Form SR be
retained for foreign private issuers? If so, should the Form be
retained for domestic issuers as well? In light of requirements under
Form 20-F under which most information relating to transactions with
affiliates is based on home country disclosure requirements, should
foreign private issuers continue to be required to disclose separately
the use of proceeds with respect to direct or indirect payments to
directors, officers or general partners or their associates, to persons
owning ten percent or more of the issuer's equity securities and other
affiliates of the issuer or should such requirement be eliminated
(whether Form SR is retained for foreign private issuers or not)?
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\46\ ``Foreign private issuer'' is defined in Exchange Act Rule
3b-4(c) (17 CFR 240.3b-4(c)).
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Comment is requested as to whether the filing of a separate Form SR
continues to serve a useful purpose, or whether reliance on Exchange
Act reporting obligations would protect sufficiently the interests of
investors. Would the proposal unduly burden the periodic reporting
responsibilities of issuers by requiring the reporting of use of
proceeds information on a quarterly basis rather than on a semi-annual
basis, as is currently the case?
It is possible that an issuer would have its Exchange Act reporting
obligation terminate prior to the application of all proceeds from its
initial public offering. Comment is requested as to the need for
continued disclosure in this situation.
The proposed amendments to the Exchange Act periodic reports
require disclosure of the amount of the issuer's net offering proceeds
used for any purpose for which at least five percent of the issuer's
total proceeds or $50,000, whichever is less, has been used. This
reflects the current Form SR requirement. Comment is solicited as to
whether the five percent and $50,000 threshold figures, which were set
in 1971, should be retained or raised to ten percent, or $75,000 or
$100,000, respectively, to reflect inflation. Irrespective of the
threshold levels used, should the requirement be the greater of five
percent or $50,000 (or whatever the threshold figures may be)? In
addition, comment is solicited as to whether the periodic forms should
be amended as proposed to include all of the current Form SR
disclosure, including the information requirement regarding offerings
that terminate without any sales, or whether any such disclosure
currently required in Form SR should be eliminated.
C. Form 8-B
The Commission proposes to eliminate Exchange Act Form 8-B,
regarding registration of securities of successor issuers, because
Exchange Act Rule 12g-3 has rendered that Form largely superfluous.
Form 8-B was adopted in 1936 to provide for registration of securities
of certain successor issuers under Section 12 of the Exchange
Act.47 An issuer uses Form 8-B to register its securities when the
issuer has no securities registered under section 12 of the Exchange
Act, but has succeeded to an issuer that had securities registered
under section 12 at the time of the succession.
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\47\ 15 U.S.C. 78l. ``Succession'' is defined in Exchange Act
Rule 12b-2 (17 CFR 240.12b-2).
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The Commission received only 59 Form 8-B filings in 1994 and 58
such filings in 1995. The usefulness of Form 8-B has been limited
because of the application of Exchange Act Rule 12g-3 to successor
issuers. In the event of a succession by merger, consolidation,
exchange of securities, or acquisition of assets, Rule 12g-3
automatically deems to be registered under section 12 of the Exchange
Act the equity securities of an issuer not previously registered under
section 12 that are issued to the holders of equity securities
registered pursuant to that section. Hence, a successor to an issuer
with a class of securities registered under section 12 is deemed to
succeed to that registration and need not file a Form 8-B.
In order to accommodate the elimination of Form 8-B, the Commission
proposes to expand Rule 12g-3 to include any transactions or securities
that are currently covered by Form 8-B, but not current Rule 12g-
3.48 Such transactions include the succession of a non-reporting
issuer to more than one reporting issuer, either through consolidation
into a new entity or a holding company formation. Currently, such a
succession would require both existing issuers to deregister their
securities under the Exchange Act, after which the successor would file
a Form 8-B. As proposed, when a non-reporting issuer succeeds to the
registration of more than one reporting issuer and the reporting
issuers are registered under different paragraphs of section 12, the
successor issuer would be able to elect the section 12 paragraph under
which it would be deemed registered by noting this election in the Form
8-K disclosing the succession. Comment is requested whether this is
appropriate. Would it be more effective to deem the successor issuer
registered under section 12(b)?
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\48\ Consistent with current practice, the successor issuer
would be required to file a Form 8-K with respect to the transaction
and subsequently comply with all of the applicable provisions of the
Exchange Act. See Items 1 and 2 of Form 8-K (17 CFR 249.308).
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The Commission proposes to amend Rule 12g-3 to clarify that the
rule applies to issuers with securities registered under section 12(b)
of the Exchange Act,49 as well as to those with securities
registered under section 12(g).50 Accordingly, Rule 12g-3 as
proposed to be amended would apply to any class of securities, whether
exchange-listed, required to be registered under section 12(g) of the
[[Page 30408]]
Exchange Act, or voluntarily registered under section 12(g) of the
Exchange Act.51
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\49\ 15 U.S.C. 78l(b).
\50\ 15 U.S.C. 78l(g).
\51\ Section 12(g) of the Exchange Act only requires the
registration of equity securities. The Commission notes that the
proposed rule could impose reporting obligations on a limited class
of issuers not currently subjected by Rule 12g-3 to reporting
following a succession because the predecessor issuer had a class of
securities registered under section 12 voluntarily. However, the
Commission notes that the proposal should not impose any undue
burdens as a result of this situation, because such an issuer would
likely be able to terminate the registration under section 12
immediately following the succession.
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The Commission also proposes to amend Exchange Act Rule 15d-5,
which pertains to the automatic assumption of reporting obligations by
a non-reporting issuer that succeeds to an issuer that has reporting
obligations under section 15(d) of the Exchange Act.52 In
connection with a succession by merger, consolidation, exchange of
securities or acquisition of assets, Rule 15d-5 automatically transfers
the section 15(d) reporting obligations of a predecessor issuer to
equity securities issued by a non-reporting successor issuer in
connection with the succession. Consistent with its proposed amendment
to Rule 12g-3, the Commission proposes to amend Rule 15d-5 so that it
would cover all securities issued by a non-reporting issuer, not just
equity securities.
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\52\ 15 U.S.C. 78o(d).
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Comment is requested as to whether Form 8-B continues to be useful
to issuers and investors. Comment is solicited regarding whether there
are any other situations in which a company currently files a Form 8-B
that would not be encompassed by proposed Rule 12g-3. Are there any
additional notification or other benefits to investors if an issuer
files on Form 8-B in addition to filing its Form 8-K report?
III. Registration Requirements
A. Concurrent Exchange Act/Securities Act Registration
The Commission proposes to permit a company to register
concurrently a public offering under the Securities Act and a class of
securities under the Exchange Act by filing a single form that would
cover both registrations.
Under current rules, a reporting company can register a class of
securities under the Exchange Act on a short form registration
statement, Form 8-A. Form 8-A requires only a description of the
registrant's securities pursuant to Item 202 of Regulation S-K 53
and the filing of certain exhibits.54 Pursuant to staff practice,
an issuer registering an initial public offering is permitted to use
Form 8-A even though it is not subject to reporting until after the
effectiveness of that Securities Act registration statement.
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\53\ 17 CFR 229.202. The Commission proposes to amend Form 8-A
to require a parallel description of registrant's securities
pursuant to Item 202 of Regulation S-B (17 CFR 228.202) for small
business issuers that use Form 8-A.
\54\ Form 8-A can incorporate by reference information that is
contained in other filings made with the Commission.
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Under the current rules, registrants that are concurrently
registering a class of securities under the Securities Act and the
Exchange Act must file two forms, Form 8-A and the appropriate
Securities Act form. Since the Securities Act form will contain or
incorporate by reference all of the information called for by Form 8-A,
the Commission proposes to eliminate the Form 8-A filing requirement
when there is a Securities Act registration statement.55
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\55\ The $250 filing fee normally payable upon the filing of a
registration statement under the Exchange Act would not apply to
securities registered concurrently on a Securities Act form.
Currently, the Commission is considering a proposal to rescind all
Exchange Act filing fees. See Release No. 33-7293 (May 16, 1996). If
the fee proposal is not adopted by the time that the concurrent
registration rule proposals are adopted, the Commission proposes in
this release to rescind the $250 filing fee for all Exchange Act
registrations of securities that are made concurrently with
Securities Act filings, as well as for all Form 8-A filings.
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In order to provide for concurrent registration under the
Securities Act and the Exchange Act, the Commission is proposing to
amend Forms SB-1, SB-2, S-1/F-1, S-3/F-3, S-4/F-4, and S-11 56 and
Form N-2 for certain closed-end investment companies and business
development companies.57 The respective forms would each be
modified to include a box on the cover page of the registration
statement that could be checked to indicate when concurrent Exchange
Act registration is being made, and to include certain other
information, such as the title of the class of securities to be
registered under the Exchange Act. The proposed procedure for
concurrent registration is intended to facilitate dual Securities Act
and Exchange Act.
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\56\ The Task Force recommended the elimination of Forms S-2/F-2
in its Report. If these Forms have not been eliminated before
adoption of the concurrent registration proposal, the Commission
currently intends to modify Forms S-2/F-2 in the same manner.
\57\ Closed-end investment companies that register their shares
on an exchange and business development companies are required to
register their securities under Sections 12(b) and 12(g),
respectively, of the Exchange Act.
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In addition to the Securities Act rules applicable to the filing
and effectiveness of the registration statement, Exchange Act Rule
12d1-2, which pertains to the effectiveness of the registration
statement for Exchange Act purposes, would be applicable to the
concurrent registration statement. Under this proposal, the
registration of a class of securities under section 12(g) of the
Exchange Act would become effective at the same time as the
effectiveness of the registration statement pertaining to such
securities under the Securities Act. However, the registration under
section 12(b) of the Exchange Act of a class of securities to be listed
on a national securities exchange would not become effective until
after certification had been received by the Commission from the
national securities exchange, as required by section 12(d) of the
Exchange Act.58
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\58\ 15 U.S.C. 78l(d). Rule 12d1-2 would be amended to provide
that the Exchange Act registration would be effective at the same
time as the Securities Act registration statement, or at the time
certification has been received by the Commission, whichever is
later.
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The Commission does not propose to permit concurrent registration
for securities registered on ``shelf'' registration statements in which
the securities will be offered and sold on a delayed basis in reliance
on Rule 415(a)(1)(x),59 since those registration statements
normally do not include an adequate description of the securities for
the purposes of Exchange Act registration.60 However, concurrent
Exchange Act registration would be available for a continuous offering
of securities that is registered on a ``shelf'' registration
statement.61
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\59\ 17 CFR 230.415(a)(1)(x).
\60\ Item 1 of Form 8-A requires issuers to provide a
description of the securities to be registered that satisfies the
requirements of Item 202 of Form S-K.
\61\ Rule 415(a)(1)(ix) permits registration of continuous
offerings that begin promptly after effectiveness of the
registration statement and may continue for more than 30 days.
Because a continuous offering must commence promptly, the
registration statement pertaining to such offerings would contain
sufficient information to satisfy the requirements of Item 202 of
Regulation S-K.
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When concurrent registration is not available, Form 8-A would still
have to be used. The Commission proposes to streamline the current Form
8-A procedure by providing automatic effectiveness for all registration
statements on that Form, just as currently provided for exchange-listed
debt securities.62 There appears to be little justification for
differentiating between debt and equity securities.
[[Page 30409]]
Since Form 8-A primarily incorporates by reference information found in
other Commission filings that may be subject to prior staff review,
staff review of these Form 8-A filings is not needed. Thus, automatic
effectiveness would simplify the logistics of Exchange Act registration
without affecting the quality of disclosure available to the public.
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\62\ If used for section 12(g) registration, the Form 8-A would
be effective upon filing with the Commission. If used for section
12(b) registration, the Form 8-A would become effective upon the
later of filing with the Commission, or the Commission's receipt of
certification from the national securities exchange.
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The availability of concurrent registration of securities on a
Securities Act registration statement and automatic effectiveness of
the Form 8-A would render superfluous the special procedures for
registration of debt securities listed on a national securities
exchange on Form 8-A.63 Accordingly, the Commission proposes
conforming amendments to Form 8-A and to Rule 12d1-2.
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\63\ In 1994, the Commission amended its rules to permit a Form
8-A filed with respect to a class of debt securities to be listed on
a national securities exchange to become effective simultaneously
with the effectiveness of the Securities Act registration statement
pertaining to such debt securities. See Release No. 34-34922 (Nov.
1, 1994) (59 FR 55342).
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Comment is requested as to whether Form 8-A should be retained when
a registration statement under the Securities Act also is being filed
with respect to the same class of securities. Should a check box be
added to Form 8-A instead to indicate the registrant's request for
concurrent effectiveness? The Commission solicits comment on whether
issuers would find the concurrent registration procedure useful. Do
issuers consider the filing of a Form 8-A burdensome? Comment is
generally requested regarding the procedural mechanisms of the
concurrent registration system, including timing, requests for
acceleration and withdrawal. With respect to the concurrent
registration of securities on one form for Exchange Act and Securities
Act purposes, comment is solicited as to whether a filing made on the
Electronic Data Gathering, Analysis and Retrieval (``EDGAR'') system
should have a tag that identifies the registration statement as one in
which Exchange Act registration also is contemplated.
As noted above, the proposals for concurrent registration would not
apply to delayed offerings of securities registered on ``shelf''
registration statements under Rule 415(a)(1)(x). Are there other
delayed offerings permitted under Rule 415 for which there may not be
an adequate description of securities? Would the automatically
effective Form 8-A be a streamlined enough procedure, or should the
Commission establish a concurrent registration procedure applicable to
delayed offerings? Comment is solicited as to whether the description
of the securities to be registered contained in such registration
statements would, in some cases, satisfy the requirements of Item 202
of Regulation S-K. If so, should the concurrent registration procedure
be available? If not, should the concurrent registration procedure be
permitted if the Item 202 information is incorporated into the Form 8-A
from the prospectus filed under Rule 424(b)?
The Commission also requests comment on the desirability of
providing automatic effectiveness for all securities registered on Form
8-A. Should issuers have the option of delaying the effectiveness of a
Form 8-A registration statement? Are there occasions when it would be
more convenient for issuers to file Form 8-A early and request
acceleration when needed? Regardless of whether concurrent registration
or automatic effectiveness is adopted, the Commission also is
considering eliminating the requirement in Form 8-A that issuers file
certain exhibits with the copy of the Form 8-A that is filed with each
national securities exchange on which the securities are to be
registered.64 Comment is solicited as to whether these exhibits
continue to be useful to the national securities exchanges that receive
such exhibits or, if not, whether the exhibit requirement should be
eliminated.
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\64\ These exhibits include, for example, copies of the last
annual report filed pursuant to section 13 or 15(d) of the Exchange
Act, copies of the latest definitive proxy statement filed with the
Commission, and copies of the issuer's charter and by-laws.
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B. Registration Requirements for American Depositary Receipts
The Commission proposes to eliminate the registration requirement
under section 12(b) of the Exchange Act for American Depositary
Receipts (``ADRs'') registered on Form F-6 65 under the Securities
Act.
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\65\ 17 CFR 239.36.
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Under current rules, a foreign issuer whose common stock is traded
on Nasdaq in the form of ADRs must register the common stock under
Section 12(g) of the Exchange Act, but is not required to register the
ADRs. A foreign issuer whose common stock is listed on a national
securities exchange, however, is required to register both the common
stock and the ADRs under Section 12(b) of the Exchange Act. There
appears to be little benefit to investors by applying an Exchange Act
registration and reporting obligation to the listed ADRs in addition to
the deposited securities. It is common practice for the Exchange Act
registration statement and reports of foreign issuers to be used to
satisfy the requirements for both the deposited securities and the
listed ADRs. With respect to the issuer's preparation of an Exchange
Act registration statement, the proposal would eliminate only the
requirement to list the ADR on the cover page of the registration
statement. Eliminating the Exchange Act registration and reporting
obligation with respect to the listed ADRs would not appear to have a
material impact on the content of disclosure, and would be consistent
with the existing view of ADRs as a mechanism for investment in the
underlying foreign securities. In these circumstances, Exchange Act
registration imposes a regulatory burden that has no apparent benefit
to investors, since it results in no additional disclosure and creates
an unwarranted regulatory distinction between Nasdaq-traded ADRs and
exchange-listed ADRs.
The Commission proposes to add Rule 12a-8 under the Exchange Act to
exempt ADRs registered on Form F-6 from the registration requirements
of section 12(b). The section 12(b) registration requirements, however,
would continue to apply to the class of securities underlying the ADRs.
Comment is solicited as to whether the Section 12(b) registration
requirements for ADRs continue to provide useful disclosure to
investors. Assuming that the underlying deposited securities continue
to be subject to section 12(b) registration, are there any concerns
unique to exchange-traded securities that would warrant continued
Exchange Act registration of such ADRs? 66
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\66\ If Section 12(b) registration is not rescinded with respect
to ADRs, the Commission proposes to provide concurrent Exchange Act
registration for ADRs on Form F-6, the Securities Act registration
form for ADRs.
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C. Securities Act Form Eligibility
The Commission proposes to amend Rule 401(c) under the Securities
Act to permit an issuer to switch to a shorter Securities Act form at
the time of filing any amendment if it has become eligible to use the
shorter form since filing its initial registration statement.
Currently, under Rule 401 under the Securities Act, the form and
content of a registration statement and prospectus are determined on
the initial filing date of such registration statement and prospectus.
An issuer is not permitted under Rule 401 to reevaluate its status
until it files a post-effective amendment pursuant to Section 10(a)(3)
67 of the
[[Page 30410]]
Securities Act. As such, even if an issuer meets the eligibility
criteria to use a shorter form at the time of filing a pre-effective or
post-effective amendment (other than a Section 10(a)(3) post-effective
amendment), current rules require it to file the amendment on the
longer form that applied at the time of its initial registration
statement.
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\67\ 15 U.S.C. 77j(a)(3).
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In its Report, the Task Force recommended that an issuer be
permitted to take advantage of a form if it meets the eligibility
criteria for that form at the time it files an amendment. The
Commission proposes to revise Rule 401(c) to permit issuers to
determine the appropriate form upon filing any amendment, including
pre-effective and post-effective amendments. This proposal should ease
filing burdens on issuers without causing any harm to investors. In
order to assure that the change would not impose new burdens, the rule
would continue to provide that if an issuer files an amendment other
than for the purposes of section 10(a)(3), an issuer would not be
required to use a form that is different from the one used for its last
section 10(a)(3) amendment, or if none has been filed, its initial
registration statement.
The Commission requests comment on whether the proposed change for
determining the availability of a short form when filing a pre- or
post-effective amendment is appropriate.
D. Rule 424(d)--Radio and Television Broadcast Prospectuses
Rules 424(d) and 497(f) currently provide that prospectuses of
corporate issuers and investment companies, respectively, consisting of
a radio or television broadcast must be reduced to writing and filed at
least five days before they are broadcast or otherwise issued to the
public. Although the Securities Act provides that such prospectuses may
be treated differently than other prospectuses in certain
circumstances,68 this filing requirement imposes a burden on
issuers using such prospectuses that does not appear necessary for
investor protection purposes. Accordingly, the Task Force recommended
elimination of the requirement of filing five days prior to first
broadcast. In accordance with this recommendation and in view of the
increasing use of electronic media in connection with securities
offerings, it is proposed that Rules 424(d) and 497(f) be amended to
eliminate the special filing requirements for these
prospectuses.69 While Rules 424(d) and 497(f) would maintain the
requirement that radio or television broadcast prospectuses be reduced
to writing, it is proposed that such prospectuses be filed with the
Commission in accordance with the requirements applicable to other
types of prospectuses. Pursuant to these amendments, radio and
television broadcast prospectuses would be filed, in the case of
corporate issuers, in accordance with the timing specified in Rule 424
(between two to five days after use depending on the subject matter of
the prospectus), and, in the case of investment companies, any time
prior to use in accordance with Rule 497(e).
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\68\ Under section 10(f) of the Securities Act (15 U.S.C.
77j(f)), the Commission is granted the authority to require radio
and television broadcast prospectuses to be filed along with other
forms of prospectuses used in connection with the sale of the
registered securities.
\69\ Such an approach would be consistent with the positions set
forth in Securities Act Release No. 33-7233 (October 6, 1995)
concerning the use of electronic media for delivery purposes.
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Comment is solicited as to whether the current five day pre-
broadcast filing requirement should be retained or if a shorter period
would be more appropriate.
Comment is solicited as to whether a pre-broadcast filing
requirement should be retained for corporate issuers. Comment is
solicited as to whether all radio and television prospectuses would fit
within one of the other existing categories in Rule 424, and if not, is
there a need for a separate filing rule for these prospectuses under
Rule 424? Comment is requested as to whether there should be a uniform
filing requirement for all issuers for these types of prospectuses.
E. Exhibits
The Commission proposes to permit automatic effectiveness of a
post-effective amendment filed solely to add an exhibit. Following
effectiveness, issuers may update their registration statements to
include new consents, opinions or other exhibits. Under current rules,
registrants eligible to use Forms S-3/F-3 may file updated exhibits
post-effectively on Form 8-K. The exhibit is then automatically
incorporated by reference into its prospectus. By contrast, registrants
that are not eligible to use Form S-3/F-3 can accomplish the filing of
updated exhibits only by way of post-effective amendments, which are
subject to possible staff review. Even if such amendments are not
selected for review, there may be a delay between the time the
amendments are filed and when they are declared effective.
In order to facilitate the filing of updated exhibits by non-S-3/F-
3 registrants and eliminate delays, the Commission proposes to add new
Rule 462(d) to permit any post-effective amendments filed solely to add
exhibits, either generally or in reference to particular exhibits, to
become effective automatically upon filing. A check box and a new EDGAR
form type would be added to Forms SB-1, SB-2, S-1/F-1, S-4/F-4, and S-
11 70 to permit such automatic effectiveness.
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\70\ As noted above, the Task Force recommended that Forms S-2/
F-2 be eliminated. If these Forms have not been eliminated before
adoption of the automatic effectiveness proposal, the Commission
currently intends to adopt corresponding changes to them.
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The proposed rule is not intended to affect an issuer's disclosure
obligations. It would not be available for the filing of exhibits that
would trigger the filing of a post-effective amendment to update the
prospectus. In addition, the proposed rule would not provide automatic
effectiveness to post-effective amendments that include an exhibit that
otherwise should have been filed pre-effectively. Accordingly, in these
situations, the issuer would not be permitted to check the box for
automatic effectiveness.
Comment is requested as to whether the current availability of
staff review of post-effective amendments filed solely to add an
exhibit continues to be useful to investors and issuers. The Commission
also requests comment on whether it would be useful to extend automatic
effectiveness of post-effective amendments to Forms S-3/F-3.
IV. General Request for Comment
Any interested persons wishing to submit comment on any of the
proposals set forth in this release are invited to do so by submitting
them in triplicate to Jonathan G. Katz, Secretary, U.S. Securities and
Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549.
Comments also may be submitted electronically at the following E-mail
address: [email protected]. All comment letters should refer to
File Number S7-15-96. This file number should be included on the
subject line if E-mail is used. Comment is specifically requested as to
whether any of the rules or forms that have been proposed to be
eliminated provide disclosure that is material to investors, issuers or
other market participants, the states or any other entity. Comment also
is requested on any competitive burdens that might result from the
adoption of any of the proposals. All comments will be considered by
the Commission in complying with its responsibility under
[[Page 30411]]
Section 23(a) of the Exchange Act.71 Comments received will be
available for public inspection and copying in the Commission's public
reference room, 450 Fifth Street, NW, Washington, DC 20549.
Electronically submitted comment letters will be posted on the
Commission's Internet web site (http://www.sec.gov).
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\71\ 15 U.S.C. 78w(a).
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V. Cost-Benefit Analysis
Commenters are requested to provide their views and data relating
to any costs and benefits associated with these proposals to aid the
Commission in its evaluation of the costs and benefits that may result
from the changes proposed in this release. It is anticipated that these
proposals will benefit those with filing obligations by simplifying or
clarifying current rules and by eliminating rules and forms that are
outdated or rarely used for other reasons. No detrimental effects to
investors are expected. It is not believed that the changes outlined in
this release will affect significantly the overall costs and burdens
associated with filing requirements generally. If these proposals
contain anything that could increase the burdens on issuers, the
Commission believes such burdens will be outweighed by the benefits to
investors and the increase in convenience to issuers.
VI. Summary of Initial Regulatory Flexibility Analysis
An initial regulatory flexibility analysis has been prepared in
accordance with 5 U.S.C. 603 concerning the proposed amendments. The
analysis notes that the amendments would eliminate certain forms and
one rule, add one rule, and revise other rules to change or modernize
them.
As discussed more fully in the analysis, the proposals would affect
persons that are small entities, as defined by the Commission's rules.
It is not expected that materially increased reporting, recordkeeping
and compliance burdens would result from the changes. The analysis also
indicates that there are no current federal rules that duplicate,
overlap or conflict with the rules and forms to be amended.
As stated in the analysis, several possible significant
alternatives to the proposals were considered, including, among others,
establishing different compliance or reporting requirements for small
entities or exempting them from all or part of the proposed
requirements. As discussed more fully in the analysis, the nature of
these amendments do not lend themselves to separate treatment, nor
would they impose additional burdens on small business issuers.
Written comments are encouraged with respect to any aspect of the
analysis. Such comments will be considered in the preparation of the
Final Regulatory Flexibility Analysis if the proposed amendments are
adopted. A copy of the analysis may be obtained by contacting Felicia
H. Kung, Division of Corporation Finance, Securities and Exchange
Commission, 450 Fifth Street NW., Washington, DC 20549.
VII. Paperwork Reduction Act
Certain provisions of Regulation C, the section 12(b) and section
12(g) registration requirements of the Exchange Act, and the section
13(a) and 15(d) periodic reporting obligations of the Exchange Act
contain ``collection of information'' requirements within the meaning
of the Paperwork Reduction Act of 1995 (the ``Act'') (44 U.S.C. 3501 et
seq.). The Commission has submitted its proposed revisions to the
information collections required by these provisions to the Office of
Management and Budget (``OMB'') for review in accordance with 44 U.S.C.
3507(a) and 5 CFR 1320.11. The titles of the affected information
collections are ``Form 20-F,'' ``Form 10-Q,'' ``Form 10-QSB, ``Form 10-
K,'' ``Form 10-KSB,'' and ``Form 8-A.''
Under Rule 463 of Regulation C, issuers must report the use of
proceeds following an initial public offering on Form SR. Form SR must
be filed within ten days of the first three months following the
effective date of the registration statement, and every six months
thereafter until the offering has been terminated or all proceeds have
been applied. The Commission's proposal to eliminate Form SR and to
require first-time issuers to report information currently contained in
Form SR on their periodic Exchange Act reports would reduce the number
of forms filed by issuers, but may marginally increase their reporting
or recordkeeping burden by increasing the frequency with which issuers
report use of proceeds information. It is estimated for purposes of the
Paperwork Reduction Act that approximately 28,950 Form 10-Qs and 10,150
Form 10-Ks are filed each year, and that approximately 1,470 Form 10-Qs
and 490 Form 10-Ks would include the proposed disclosure item. It also
is estimated that approximately 6,000 Form 10-QSBs and 2,075 Form 10-
KSBs are filed each year, and that approximately 795 Form 10-QSBs and
265 Form 10-KSBs 72 would include the proposed disclosure item. In
addition, it is estimated that approximately 545 Form 20-Fs are filed
each year, and that approximately 100 Form 20-Fs would include the
proposed disclosure item. The burden for each Form 10-Q, 10-QSB, Form
10-K, Form 10-KSB and Form 20-F that includes the proposed item
disclosure would be increased by an estimated burden of 5.5 hours for a
total increase of annual burden of 17,160 hours with respect to all
five forms.73 If the proposals were adopted: (i) an estimated
1,470 respondents would file Form 10-Q each year with the proposed
disclosure item at an estimated burden of 5.5 hours per filing for an
estimated total annual burden of 8,085 hours; (ii) an estimated 795
respondents would file Form 10-QSB each year with the proposed
disclosure item at an estimated burden of 5.5 hours per filing for an
estimated total annual burden of 4,372.5 hours; (iii) an estimated 490
respondents would file Form 10-K each year with the proposed disclosure
item at an estimated burden of 5.5 hours per filing for an estimated
total annual burden of 2,695 hours; (iv) an estimated 265 respondents
would file Form 10-KSB each year with the proposed disclosure item at
an estimated burden of 5.5 hours per filing for an estimated total
annual burden of 1,457.5 hours and (v) an estimated 100 respondents
would file Form 20-F each year with the proposed disclosure item at an
estimated burden of 5.5 hours per filing for an estimated total annual
burden of 550 hours.
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\72\ These estimates are based on the number of small business
issuers with initial public offerings in fiscal year 1995 and assume
that there are no increases each year.
\73\ Total annual burden hours are determined by multiplying the
estimated average burden hours for completing the particular item by
the estimated number of responses that would include that item.
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Form 8-A, the short-form Exchange Act registration statement, is
used by a reporting company and by a company registering an initial
public offering. The Commission's proposal to permit Exchange Act
registration of a class of securities concurrent with the Securities
Act registration of such securities by requiring registrants to check a
box on the cover page of the Securities Act registration statement
should eliminate the need for the Form 8-A registration statement in
many instances. At the present, approximately 1,940 Form8-As are filed
each year for a total annual burden of 14,550 hours. As a result of the
Commission's proposal, it is estimated that approximately 1,164 fewer
Form 8-As would be filed, for an estimated reduction in total burden
[[Page 30412]]
hours of 8,730 hours. Therefore, if the proposals were adopted, an
estimated 776 respondents would file Form 8-A at an estimated burden of
7.5 hours per filing for an estimated total annual burden of 5,820
hours.
The Commission also proposes to eliminate the federal filing
requirement for Form D, and to eliminate Form SR and Form 8-B.
Responses to the described information collections are mandatory.
Unless a currently valid OMB control number is displayed, an agency may
not sponsor, conduct or require response to an information collection.
In accordance with 44 U.S.C. 3506(c)(2)(B), the Commission solicits
comments on the following: whether the proposed change in the
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; on the accuracy of the Commission's estimate of
the burden of the proposed changes to the collection of information; on
the quality, utility and clarity of the information to be collected;
and whether the burden of collection of information on those who are to
respond, including through the use of automated collection techniques
or other forms of information technology, may be minimized.
Persons desiring to submit comments on the collection of
information requirements should direct them to the Office of Management
and Budget, Attention: Desk Officer for the Securities and Exchange
Commission, Office of Information and Regulatory Affairs, Washington,
DC 20503, with reference to File No. S7-15-96. The Office of Management
and Budget is required to make a decision concerning the collection of
information between 30 and 60 days after publication, so a comment to
OMB is best assured of having its full effect if OMB receives it within
30 days of publication.
VIII. Statutory Basis for the Proposals
The foregoing amendments are proposed pursuant to sections 6, 7, 8,
10 and 19(a) of the Securities Act, sections 3, 12, 13, 15, 23 and 35A
of the Exchange Act, and sections 8, 24, 38 and 54 of the Investment
Company Act of 1940.
List of Subjects
17 CFR Parts 230, 239, 240 and 249
Reporting and recordkeeping requirements, Securities.
17 CFR Part 274
Investment companies, Reporting and recordkeeping requirements,
Securities.
Text of the Proposals
In accordance with the foregoing, Title 17, Chapter II of the Code
of Federal Regulations is proposed to be amended as follows:
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
The authority citation for part 230 continues to read in part as
follows:
Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, 77s, 77sss, 78c,
78(d), 78l, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-29, 80a-30,
and 80a-37, unless otherwise noted.
* * * * *
2. By amending Sec. 230.401 by revising paragraph (c) to read as
follows:
Sec. 230.401 Requirements as to proper form.
* * * * *
(c) The form and contents of any amendment to a registration
statement and prospectus, other than an amendment described in
paragraph (b) of this section, shall conform to the applicable rules
and forms as in effect on the filing date of such amendment, or, at the
option of the filer, the filing date of the most recent amendment
described in paragraph (b) of this section or, if no such amendment has
been filed, the initial filing date of the registration statement and
prospectus.
* * * * *
Sec. 230.424 [Amended]
3. By amending Sec. 230.424 in paragraph (d) by removing the phrase
``at least five days before it is broadcast or otherwise issued to the
public'' in the second sentence and in its place adding ``in accordance
with the requirements of this Section''.
4. By amending Sec. 230.462 by adding paragraph (d) to read as
follows:
Sec. 230.462 Immediate effectiveness of certain registration
statements and post-effective amendments.
* * * * *
(d) A post-effective amendment filed solely to add exhibits to a
registration statement shall become effective upon filing with the
Commission.
5. By amending Sec. 230.463 by revising paragraphs (a) and (b) to
read as follows:
Sec. 230.463 Report of offering of securities and use of proceeds
therefrom.
(a) Except as hereinafter provided in this section, following the
effective date of the first registration statement filed under the Act
by an issuer, the issuer or successor issuer shall report the use of
proceeds on its first periodic report filed pursuant to Sections 13(a)
and 15(d) (15 U.S.C. 78m(a) and 78o(d)) of the Securities Exchange Act
of 1934 after effectiveness, and thereafter on each of its subsequent
periodic reports filed pursuant to Sections 13(a) and 15(d) of the
Securities Exchange Act of 1934 through the later of the application of
the offering proceeds, or the termination of the offering.
(b) A successor issuer shall comply with paragraph (a) of this
section only to the extent that a report of the use of proceeds is
required with respect to the first effective registration statement of
the predecessor issuer.
* * * * *
Sec. 230.497 [Amended]
6. By amending Sec. 230.497 in paragraph (f) by removing the phrase
``at least 5 days before it is broadcast or otherwise issued to the
public'' in the second sentence and in its place adding ``in accordance
with the requirements of this Section''.
7. By revising Sec. 230.503 to read as follows:
Sec. 230.503 Notice of sales.
An issuer offering or selling securities in reliance on
Sec. 230.504, Sec. 230.505 or Sec. 230.506 shall prepare a notice on
Form D (17 CFR 239.500) promptly after the first sale of securities.
The issuer shall retain the notice until three years after the date of
the first sale of securities. Upon request, the issuer shall furnish to
the Commission or its staff a copy of the Form D notice.
Sec. 230.507 [Removed and reserved]
8. By removing and reserving Sec. 230.507.
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
9. The authority citation for part 239 continues to read in part as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77sss, 78c, 78l,
78m, 78n, 78o(d), 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, 79m,
79n, 79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless otherwise
noted.
* * * * *
10. By amending Sec. 239.9 by designating the current text as
paragraph (a), and adding paragraphs (b) and (c) to read as follows:
Sec. 239.9 Form SB-1, optional form for the registration of
securities to be sold to the public by certain small business issuers.
* * * * *
(b) Subject to paragraph (c) of this section, this form may be used
for concurrent registration pursuant to section 12 (b) or (g) (15
U.S.C. 78l (b) or (g)) of the Securities Exchange Act of 1934
(``Exchange Act'') of any class of securities being registered on this
form under the Securities Act of 1933.
[[Page 30413]]
(c) If the registrant would be required to file an annual report
pursuant to section 15(d) (15 U.S.C. 78o(d)) of the Exchange Act for
its last fiscal year, except for the fact that the Exchange Act
registration on this form will become effective before such report is
required to be filed, an annual report for such fiscal year shall
nevertheless be filed within the period specified in the appropriate
annual report form.
11. By amending Form SB-1 (referenced in Sec. 239.9) by revising
the title to the form and the facing page, by adding General
Instruction I, by revising the signature requirements in Part II (not
including the Instructions thereto), and by adding paragraph (3) to the
Instructions to ``Signatures'' to read as follows:
Note: The text of Form SB-1 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
Form SB-1
U.S. Securities and Exchange Commission Washington, D.C. 20549
Form SB-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 AND SECTION
12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No.________)
----------------------------------------------------------------------
(Name of small business issuer in its charter)
----------------------------------------------------------------------
(State or jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
Address and telephone number of principal executive offices)
----------------------------------------------------------------------
(Address of principal place of business or intended principal place
of business)
----------------------------------------------------------------------
(Name, address, and telephone number of agent for service)
Approximate date of commencement of proposed sale to the public
________
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(b) of the Securities Exchange Act
of 1934 pursuant to General Instruction I, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(g) of the Securities Exchange Act
of 1934 pursuant to General Instruction I, please check the
following box. [ ]
----------------------------------------------------------------------
(title of class)
----------------------------------------------------------------------
(title of class)
Calulation of Registration Fee
----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered unit price registration fee
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Note: If the filing fee is calculated pursuant to Rule 457(o)
under the Securities Act, only the title of the class of securities
to be registered, the proposed maximum aggregate offering price for
that class of securities and the amount of registration fee need to
appear in the Calculation of Registration Fee table. Any difference
between the dollar amount of securities registered for such
offerings and the dollar amount of securities sold may be carried
forward on a future registration statement pursuant to Rule 429
under the Securities Act.
The following delaying amendment is optional, but see Rule 473
before omitting it. The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment
which specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall
become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
Disclosure alternative used: Alternative 1 ________ Alternative
2 ________
General Instructions
* * * * *
I. Registration Under the Securities Exchange Act of 1934
1. Subject to General Instruction I.2., this form may be used
for concurrent registration pursuant to section 12 (b) or (g) of the
Securities Exchange Act of 1934 (``Exchange Act'') of any class of
securities listed under ``Title of each class of securities to be
registered'' on the cover page of this registration statement.
2. If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal
year, except for the fact that the Exchange Act registration on this
form will become effective before such report is required to be
filed, an annual report for such fiscal year shall nevertheless be
filed within the period specified in the appropriate annual report
form.
3. If a class of securities is concurrently being registered
under the Exchange Act, the provisions of Rule 12d1-2 of the
Exchange Act apply with respect to the effectiveness of the
registration statement for Exchange Act purposes.
4. At least one complete, signed copy of the registration
statement shall be filed with each exchange on which the securities
are to be registered.
* * * * *
Part II-- Information Not Required in Prospectus
* * * * *
Signatures
In accordance with the requirements of the Securities Act of
1933 [and Section 12 of the Securities Exchange Act of 1934], the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form SB-1 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
____________________, State of ____________________, on __________,
19____.
(Registrant)----------------------------------------------------------
By (Signature and Title)----------------------------------------------
In accordance with the requirements of the Securities Act of
1933, this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
[[Page 30414]]
(Signature)-----------------------------------------------------------
(Title)---------------------------------------------------------------
(Date)----------------------------------------------------------------
Instructions
* * * * *
(3) If a class of securities is being registered concurrently
under the Exchange Act, the registrant should sign the registration
statement in accordance with the requirements of both the Securities
Act and Section 12 of the Exchange Act.
* * * * *
By amending Sec. 239.10 by designating the current text as
paragraph (a), and adding paragraphs (b) and (c) to read as follows:
Sec. 239.10 Form SB-2, optional form for the registration of
securities to be sold to the public by small business issuers.
* * * * *
(b) Subject to paragraph (c) of this section, this form may be used
for concurrent registration pursuant to section 12 (b) or (g) (15
U.S.C. 78l (b) or (g)) of the Securities Exchange Act of 1934
(``Exchange Act'') of any class of securities being registered on this
form under the Securities Act of 1933.
(c) If the registrant would be required to file an annual report
pursuant to section 15(d) (15 U.S.C. 78o(d)) of the Exchange Act for
its last fiscal year, except for the fact that the Exchange Act
registration on this form will become effective before such report is
required to be filed, an annual report for such fiscal year shall
nevertheless be filed within the period specified in the appropriate
annual report form.
FR Doc. 96-14183 Phase Two Recommendations of Task Force on Disclosure Simplification
13 By amending Form SB-2 (referenced in Sec. 239.10) by revising
the title to the form and the facing page, by adding General
Instruction D, by revising the signature requirements in Part II (not
including the Instructions thereto), and by adding paragraph (3) to the
Instructions to ``Signatures'' to read as follows:
Note: The text of Form SB-2 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
Form SB-2
U.S. Securities and Exchange Commission Washington, DC 20549
Form SB-2
Registration Statement Under the Securities Act of 1933 and Section 12
(b) or (g) of the Securities Exchange Act of 1934
(Amendment No.________________)
----------------------------------------------------------------------
(Name of small business issuer in its charter)
----------------------------------------------------------------------
(State or jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address and telephone number of principal executive offices)
----------------------------------------------------------------------
(Address of principal place of business or intended principal place
of business)
----------------------------------------------------------------------
(Name, address, and telephone number of agent for service)
Approximate date of commencement of proposed sale to the public
____________________
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(b) of the Securities Exchange Act
of 1934 pursuant to General Instruction D, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(g) of the Securities Exchange Act
of 1934 pursuant to General Instruction D, please check the
following box. [ ]
----------------------------------------------------------------------
(Title of class)
----------------------------------------------------------------------
(Title of class)
Calculation of Registration Fee
----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered unit price registration fee
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Note: If the filing fee is calculated pursuant to Rule 457(o)
under the Securities Act, only the title of the class of securities
to be registered, the proposed maximum aggregate offering price for
that class of securities and the amount of registration fee need to
appear in the Calculation of Registration Fee table. Any difference
between the dollar amount of securities registered for such
offerings and the dollar amount of securities sold may be carried
forward on a future registration statement pursuant to Rule 429
under the Securities Act.
The following delaying amendment is optional, but see Rule 473
before omitting it. The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment
which specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall
become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
Disclosure alternative used: Alternative 1 ____________
Alternative 2 ____________.
General Instructions
* * * * *
D. Registration Under the Securities Exchange Act of 1934
1. Subject to General Instruction D.2., this form may be used
for concurrent registration pursuant to section 12 (b) or (g) of the
Securities Exchange Act of 1934 (``Exchange Act'') of any class of
securities listed under ``Title of each class of securities to be
[[Page 30415]]
registered'' on the cover page of this registration statement.
2. If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal
year, except for the fact that the Exchange Act registration on this
form will become effective before such report is required to be
filed, an annual report for such fiscal year shall nevertheless be
filed within the period specified in the appropriate annual report
form.
3. If a class of securities is concurrently being registered
under the Exchange Act, the provisions of Rule 12d1-2 of the
Exchange Act apply with respect to the effectiveness of the
registration statement for Exchange Act purposes.
4. At least one complete, signed copy of the registration
statement shall be filed with each exchange on which the securities
are to be registered.
* * * * *
Part II--Information Not Required In Prospectus
* * * * *
Signatures
In accordance with the requirements of the Securities Act of
1933 [and Section 12 of the Securities Exchange Act of 1934], the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form SB-2 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City
of____________________, State of ____________________, on
__________, 19____.
(Registrant)----------------------------------------------------------
By (Signature and Title)----------------------------------------------
In accordance with the requirements of the Securities Act of
1933, this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
(Signature)-----------------------------------------------------------
(Title)---------------------------------------------------------------
(Date)----------------------------------------------------------------
Instructions
* * * * *
(3) If a class of securities is being registered concurrently
under the Exchange Act, the registrant should sign the registration
statement in accordance with the requirements of both the Securities
Act and Section 12 of the Exchange Act.
* * * * *
14. By amending Sec. 239.11 by revising the section heading,
designating the current paragraph as paragraph (a), and adding
paragraphs (b) and (c) to read as follows:
Sec. 239.11 Form S-1, registration statement under the Securities Act
of 1933 and section 12(b) or (g) of the Securities Exchange Act of
1934.
* * * * *
(b) Subject to paragraph (c) of this section, this form may be used
for concurrent registration pursuant to section 12 (b) or (g) (15
U.S.C. 78l (b) or (g)) of the Securities Exchange Act of 1934
(``Exchange Act'') of any class of securities being registered on this
form under the Securities Act of 1933.
(c) If the registrant would be required to file an annual report
pursuant to section 15(d) (15 U.S.C. 78o(d)) of the Exchange Act for
its last fiscal year, except for the fact that the Exchange Act
registration on this form will become effective before such report is
required to be filed, an annual report for such fiscal year shall
nevertheless be filed within the period specified in the appropriate
annual report form.
15. By amending Form S-1 (referenced in Sec. 239.11) by revising
the title to the form and the facing page, by adding General
Instruction VI, by revising the signature requirements in Part II (not
including the Instructions thereto), and by adding paragraph 3. to the
Instructions to ``Signatures'' to read as follows:
Note: The text of Form S-1 does not, and the amendments thereto will
not, appear in the Code of Federal Regulations.
Form S-1
Securities and Exchange Commission, Washington, D.C. 20549
Form S-1
Registration Statement Under the Securities Act of 1933 and Section 12
(b) or (g) of the Securities Exchange Act of 1934
----------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the
public____________________.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(b) of the Securities Exchange Act
of 1934 pursuant to General Instruction VI, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(g) of the Securities Exchange Act
of 1934 pursuant to General Instruction VI, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934:
----------------------------------------------------------------------
(Title of class)
----------------------------------------------------------------------
(Title of class)
Calculation of Registration Fee
----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered unit price registration fee
----------------------------------------------------------------------------------------------------------------
[[Page 30416]]
----------------------------------------------------------------------------------------------------------------
Note: Specific details relating to the fee calculation shall be
furnished in notes to the table, including references to provisions
of Rule 457 (Sec. 230.457 of this chapter) relied upon, if the basis
of the calculation is not otherwise evident from the information
presented in the table. If the filing fee is calculated pursuant to
Rule 457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate offering
price for that class of securities and the amount of registration
fee need to appear in the Calculation of Registration Fee table. Any
difference between the dollar amount of securities registered for
such offerings and the dollar amount of securities sold may be
carried forward on a future registration statement pursuant to Rule
429 under the Securities Act.
General Instructions
* * * * *
VI. Registration Under the Securities Exchange Act of 1934
A. Subject to General Instruction VI.B., this form may be used
for concurrent registration pursuant to section 12 (b) or (g) of the
Securities Exchange Act of 1934 (``Exchange Act'') of any class of
securities listed under ``Title of each class of securities to be
registered'' on the cover page of this registration statement.
B. If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal
year, except for the fact that the Exchange Act registration on this
form will become effective before such report is required to be
filed, an annual report for such fiscal year shall nevertheless be
filed within the period specified in the appropriate annual report
form.
C. If a class of securities is concurrently being registered
under the Exchange Act, the provisions of Rule 12d1-2 of the
Exchange Act apply with respect to the effectiveness of the
registration statement for Exchange Act purposes.
D. At least one complete, signed copy of the registration
statement shall be filed with each exchange on which the securities
are to be registered.
* * * * *
PART II--Information Not Required In Prospectus
* * * * *
Signatures
Pursuant to the requirements of the Securities Act of 1933 [and
Section 12 of the Securities Exchange Act of 1934], the registrant
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
____________________, State of ____________________, on __________,
19____.
(Registrant)-----------------------------------------------------------
By (Signature and Title)-----------------------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
(Signature)------------------------------------------------------------
(Title)----------------------------------------------------------------
(Date)-----------------------------------------------------------------
Instructions
* * * * *
3. If a class of securities is being registered concurrently
under the Exchange Act, the registrant should sign the registration
statement in accordance with the requirements of both the Securities
Act and Section 12 of the Exchange Act.
* * * * *
16. By amending Sec. 239.13 by revising the section heading, by
revising the introductory text of Sec. 239.13, by removing the phrase
``Securities Exchange Act of 1934 (Exchange Act)'' from paragraph
(a)(2) and in its place adding ``Exchange Act'' and by adding paragraph
(e) to read as follows:
Sec. 239.13 Form S-3, for registration under the Securities Act of
1933 and section 12(b) or (g) of the Securities Exchange Act of 1934 of
securities of certain issuers offered pursuant to certain types of
transactions.
This form may be used by any registrant which meets the
requirements of paragraph (a) of this section (``Registrant
Requirements'') for the registration of securities under the Securities
Act of 1933 (``Securities Act'') which are offered in any transaction
specified in paragraph (b) of this section (``Transaction
Requirements''), provided that the requirements applicable to the
specified transaction are met. With respect to majority-owned
subsidiaries, see paragraph (c) of this section. In addition, this form
may be used for the concurrent registration of securities pursuant to
section 12 (b) or (g) (15 U.S.C. 78l (b) or (g)) of the Securities
Exchange Act of 1934 (``Exchange Act''), subject to paragraph (e) of
this section (``Registration Pursuant to the Exchange Act'').
* * * * *
(e) Registration Pursuant to the Exchange Act. Registrants may use
this form to register concurrently a class of securities pursuant to
section 12 (b) or (g) of the Exchange Act subject to the following:
(1) Subject to paragraph (e)(2) of this section, this form may be
used for concurrent registration pursuant to section 12 (b) or (g) of
the Exchange Act of any class of securities being registered on this
form under the Securities Act of 1933.
(2) If the registrant would be required to file an annual report
pursuant to section 15(d) (15 U.S.C. 78o(d)) of the Exchange Act for
its last fiscal year, except for the fact that the Exchange Act
registration on this form will become effective before such report is
required to be filed, an annual report for such fiscal year shall
nevertheless be filed within the period specified in the appropriate
annual report form.
(3) Concurrent registration under the Exchange Act is not available
when securities being registered on this Form S-3 pursuant to
paragraphs (b)(1) and (b)(2) of this section are to be offered on a
delayed basis pursuant to Sec. 230.415(a)(1)(x) of this chapter.
By amending Form S-3 (referenced in Sec. 239.13) by revising the
title to the form and the facing page, by adding General Instruction V,
by revising the signature requirements in Part II (not including the
Instructions thereto), and by adding paragraph 4. to the Instructions
to ``Signatures'' to read as follows:
Note: The text of Form S-3 does not, and the amendments thereto will
not, appear in the Code of Federal Regulations.
Form S-3
Securities and Exchange Commission Washington, DC 20549
FORM S-3
Registration Statement Under the Securities Act of 1933 and Section 12
(b) or (g) of the Securities Exchange Act of 1934
----------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
[[Page 30417]]
(Address, including zip code, and telephone number, including area
code, of registrants' principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the public
____________________
If any of the securities being registered on this Form are to be
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(b) of the Securities Exchange Act
of 1934 pursuant to General Instruction V, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(g) of the Securities Exchange Act
of 1934 pursuant to General Instruction V, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934:
----------------------------------------------------------------------
(Title of class)
----------------------------------------------------------------------
(Title of class)
Calculation of Registration Fee
----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered unit price registration fee
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Note: Specific details relating to the fee calculation shall be
furnished in notes to the table, including references to provisions
of Rule 457 (Sec. 230.457 of this chapter) relied upon, if the basis
of the calculation is not otherwise evident from the information
presented in the table. If the filing fee is calculated pursuant to
Rule 457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate offering
price for that class of securities and the amount of registration
fee need to appear in the ``Calculation of Registration Fee'' table
(``Fee Table''). Where two or more classes of securities are being
registered pursuant to General Instruction II.D, however, the Fee
Table need only specify the maximum aggregate offering price for all
classes; the Fee Table need not specify by each class the proposed
maximum aggregate offering price (See General Instruction II.D). Any
difference between the dollar amount of securities registered for
such offerings and the dollar amount of securities sold may be
carried forward on a future registration statement pursuant to Rule
429 under the Securities Act.
General Instructions
* * * * *
V. Registration Under the Securities Exchange Act of 1934
A. Subject to General Instruction V.B., this form may be used
for concurrent registration pursuant to section 12 (b) or (g) of the
Securities Exchange Act of 1934 (``Exchange Act'') of any class of
securities listed under ``Title of each class of securities to be
registered'' on the cover page of this registration statement.
B. If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal
year, except for the fact that the Exchange Act registration on this
form will become effective before such report is required to be
filed, an annual report for such fiscal year shall nevertheless be
filed within the period specified in the appropriate annual report
form.
C. If a class of securities is concurrently being registered
under the Exchange Act, the provisions of Rule 12d1-2 of the
Exchange Act apply with respect to the effectiveness of the
registration statement for Exchange Act purposes.
D. At least one complete, signed copy of the registration
statement shall be filed with each exchange on which the securities
are to be registered.
E. Concurrent registration under the Exchange Act is not
available when securities being registered on this Form pursuant to
General Instruction I.B.I and I.B.2. are to be offered on a delayed
basis pursuant to Sec. 230.415(a)(1)(x) of this chapter.
* * * * *
Part II-- Information Not Required In Prospectus
* * * * *
Signatures
Pursuant to the requirements of the Securities Act of 1933 [and
Section 12 of the Securities Exchange Act of 1934], the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
____________________, State of ____________________, on __________,
19____.
(Registrant)-----------------------------------------------------------
By (Signature and Title)-----------------------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
(Signature)------------------------------------------------------------
(Title)----------------------------------------------------------------
(Date)-----------------------------------------------------------------
Instructions
* * * * *
4. If a class of securities is being registered concurrently
under the Exchange Act, the registrant should sign the registration
statement in accordance with the requirements of both the Securities
Act and Section 12 of the Exchange Act.
18. By amending Sec. 239.18 by revising the section heading, by
designating the introductory text as paragraph (a), and by adding
paragraphs (b) and (c) to read as follows:
[[Page 30418]]
Sec. 239.18 Form S-11, for registration under the Securities Act of
1933 and section 12 (b) or (g) of the Securities Exchange Act of 1934
of securities of certain real estate companies.
* * * * *
(b) Subject to paragraph (c) of this section, this form may be used
for concurrent registration pursuant to section 12(b) or (g) (15 U.S.C.
78l (b) or (g)) of the Securities Exchange Act of 1934 (``Exchange
Act'') of any class of securities being registered on this form under
the Securities Act of 1933.
(c) If the registrant would be required to file an annual report
pursuant to section 15(d) (15 U.S.C. 78o(d)) of the Exchange Act for
its last fiscal year, except for the fact that the Exchange Act
registration on this form will become effective before such report is
required to be filed, an annual report for such fiscal year shall
nevertheless be filed within the period specified in the appropriate
annual report form.
19. By amending Form S-11 (referenced in Sec. 239.18) by revising
the title to the form, by adding General Instruction H, by revising the
facing page, by revising the signature requirements in Part II (not
including the Instructions thereto), and by adding paragraph 3. to the
Instructions to ``Signatures'' to read as follows:
Note: The text of Form S-11 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
Form S-11
Securities and Exchange Commission, Washington, DC 20549
Form S-11
For Registration Under the Securities Act of 1933 and Section 12 (b) or
(g) of the Securities Exchange Act of 1934 of Securities of Certain
Real Estate Companies
General Instructions
* * * * *
H. Registration Under the Securities Exchange Act of 1934
(a) Subject to General Instruction H.(b), this form may be used
for concurrent registration pursuant to section 12 (b) or (g) of the
Securities Exchange Act of 1934 (``Exchange Act'') of any class of
securities listed under ``Title of each class of securities to be
registered'' on the cover page of this registration statement.
(b) If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal
year, except for the fact that the Exchange Act registration on this
form will become effective before such report is required to be
filed, an annual report for such fiscal year shall nevertheless be
filed within the period specified in the appropriate annual report
form.
(c) If a class of securities is concurrently being registered
under the Exchange Act, the provisions of Rule 12d1-2 of the
Exchange Act apply with respect to the effectiveness of the
registration statement for Exchange Act purposes.
(d) At least one complete, signed copy of the registration
statement shall be filed with each exchange on which the securities
are to be registered.
(e) Concurrent registration under the Exchange Act is not
available when securities being registered on this Form are to be
offered on a delayed basis pursuant to Sec. 230.415(a)(1)(x) of this
chapter.
Form S-11
Securities and Exchange Commission, Washington, D.C. 20549
Form S-11
For Registration Statement Under the Securities Act of 1933 and Section
12 (b) or (g) of the Securities Exchange Act of Securities of Certain
Real Estate Companies
----------------------------------------------------------------------
(Exact name of registrant as specified in governing instruments)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the public
____________________.
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(b) of the Securities Exchange Act
of 1934 pursuant to General Instruction H, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(g) of the Securities Exchange Act
of 1934 pursuant to General Instruction H, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934:
----------------------------------------------------------------------
(Title of class)
----------------------------------------------------------------------
(Title of class)
Calculation of Registration Fee
----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities being Amount being offering price per aggregate offering Amount of
registered registered unit price registration fee
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Note: Specific details relating to the fee calculation shall be
furnished in notes to the table, including references to provisions
of Rule 457 (Sec. 230.457 of this chapter) relied upon, if the basis
of the calculation is not otherwise evident from the information
presented in the table. If the filing fee is calculated pursuant to
Rule 457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate offering
price for that class of securities and the amount of registration
fee need to appear in the Calculation of Registration Fee table. Any
difference between the dollar amount of
[[Page 30419]]
securities registered for such offerings and the dollar amount of
securities sold may be carried forward on a future registration
statement pursuant to Rule 429 under the Securities Act.
* * * * *
Part II--Information Not Required In Prospectus
* * * * *
Signatures
Pursuant to the requirements of the Securities Act of 1933 [and
Section 12 of the Securities Exchange Act of 1934], the registrant
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
____________________, State of ____________________, on __________,
19____.
(Registrant)-----------------------------------------------------------
By (Signature and Title)-----------------------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
(Signature)------------------------------------------------------------
(Title)----------------------------------------------------------------
(Date)-----------------------------------------------------------------
Instructions
* * * * *
3. If a class of securities is being registered concurrently
under the Exchange Act, the registrant should sign the registration
statement in accordance with the requirements of both the Securities
Act and Section 12 of the Exchange Act.
20. By amending Sec. 239.25 by revising the section heading, by
designating the introductory text as paragraph (a), and by adding
paragraph (b) to read as follows:
Sec. 239.25 Form S-4, for the registration of securities issued in
business combination transactions under the Securities Act of 1933 and
section 12 (b) or (g) of the Securities Exchange Act of 1934.
* * * * *
(b) Registrants may use this form to register concurrently a class
of securities pursuant to section 12 (b) or (g) (15 U.S.C. 78l (b) or
(g)) of the Securities Exchange Act of 1934 (``Exchange Act'') subject
to the following:
(1) Subject to paragraph (b)(2) of this section, this form may be
used for concurrent registration pursuant to section 12 (b) or (g) (15
U.S.C. 78l (b) or (g)) of the Exchange Act of any class of securities
being registered on this form under the Securities Act of 1933.
(2) If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal year,
except for the fact that the Exchange Act registration on this form
will become effective before such report is required to be filed, an
annual report for such fiscal year shall nevertheless be filed within
the period specified in the appropriate annual report form.
(3) Concurrent registration under the Exchange Act is not available
when securities being registered on this Form S-4 are to be offered on
a delayed basis pursuant to Sec. 230.415(a)(1)(x) of this chapter.
21. By amending Form S-4 (referenced in Sec. 239.25) by revising
the title to the form and the facing page, by adding General
Instruction K, by revising the signature requirements in Part II (not
including the Instructions thereto), and by adding paragraph 4. to the
Instructions to ``Signatures'' to read as follows:
Note: The text of Form S-4 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
Form S-4
Securities and Exchange Commission, Washington, D.C. 20549
Form S-4
Registration Statement Under the Securities Act of 1933 and Section
12(b) or (g) of the Securities Exchange Act of 1934
----------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of registrants' principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale of the
securities to the public ____________________.
If the securities being registered on this Form are being
offered in connection with the formation of a holding company and
there is compliance with General Instruction G, check the following
box. [ ]
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(b) of the Securities Exchange Act
of 1934 pursuant to General Instruction K, please check the
following box. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(g) of the Securities Exchange Act
of 1934 pursuant to General Instruction K, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934:
----------------------------------------------------------------------
(Title of class)
----------------------------------------------------------------------
(Title of class)
Calculation of Registration Fee
----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of Amount to offering price per aggregate offering Amount of
securities to be registered registered unit price registration fee
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Note: Specific details relating to the fee calculation shall be
furnished in notes to the table, including references to provisions
of Rule 457 (Sec. 230.457 of this chapter) relied upon, if the basis
of the calculation is not otherwise evident from the information
presented in the table.
[[Page 30420]]
General Instructions
* * * * *
K. Registration Under the Exchange Act
1. Subject to General Instruction K.2., this form may be used
for concurrent registration pursuant to section 12 (b) or (g) of the
Exchange Act of any class of securities listed under ``Title of each
class of securities to be registered'' on the cover page of this
registration statement.
2. If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal
year, except for the fact that the Exchange Act registration on this
form will become effective before such report is required to be
filed, an annual report for such fiscal year shall nevertheless be
filed within the period specified in the appropriate annual report
form.
3. If a class of securities is concurrently being registered
under the Exchange Act, the provisions of Rule 12d1-2 of the
Exchange Act apply with respect to the effectiveness of the
registration statement for Exchange Act purposes.
4. At least one complete, signed copy of the registration
statement shall be filed with each exchange on which the securities
are to be registered.
5. Concurrent registration under the Exchange Act is not
available when securities being registered on this Form pursuant to
General Instruction H are to be offered on a delayed basis pursuant
to Sec. 230.415(a)(1)(x) of this chapter.
* * * * *
Part II--Information Not Required in Prospectus
* * * * *
Signatures
Pursuant to the requirements of the Securities Act of 1933 [and
Section 12 of the Securities Exchange Act of 1934], the registrant
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
____________________, State of __________, on__________ 19____.
(Registrant)-----------------------------------------------------------
By (Signature and Title)-----------------------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
(Signature)------------------------------------------------------------
(Title)----------------------------------------------------------------
(Date)-----------------------------------------------------------------
Instructions
* * * * *
4. If a class of securities is being registered concurrently
under the Exchange Act, the registrant should sign the registration
statement in accordance with the requirements of both the Securities
Act and Section 12 of the Exchange Act.
22 By amending Sec. 239.31 by revising the section heading and by
adding paragraph (c) to read as follows:
Sec. 239.31 Form F-1, registration statement under the Securities Act
of 1933 and section 12(b) or (g) of the Securities Exchange Act of 1934
for securities of certain foreign private issuers.
* * * * *
(c) A registrant may use this form to register concurrently a class
of securities pursuant to section 12(b) or (g) (15 U.S.C. 78l(b) or
(g)) of the Securities Exchange Act of 1934 (``Exchange Act'') subject
to the following:
(1) Subject to paragraph (c)(2) of this section, this form may be
used for concurrent registration pursuant to section 12(b) or (g) (15
U.S.C. 78l(b) or (g)) of the Exchange Act of any class of securities
being registered on this form under the Securities Act of 1933.
(2) If the registrant would be required to file an annual report
pursuant to section 15(d) (15 U.S.C. 78o(d)) of the Exchange Act for
its last fiscal year, except for the fact that the Exchange Act
registration on this form will become effective before such report is
required to be filed, an annual report for such fiscal year shall
nevertheless be filed within the period specified in the appropriate
annual report form.
23. By amending Form F-1 (referenced in Sec. 239.31) by revising
the title to the form and the facing page, by adding General
Instruction VI, by revising the signature requirements in Part II (not
including the Instructions thereto), and by adding paragraph 3. to the
Instructions to ``Signatures'' to read as follows:
Note: The text of Form F-1 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
Form F-1
Securities and Exchange Commission
Form F-1
Registration Statement Under the Securities Act of 1933 and Section
12(b) or (g) of the Securities Exchange Act of 1934
----------------------------------------------------------------------
(Exact Name of Registrant as specified in its charter)
----------------------------------------------------------------------
(Translation of Registrant's name into English)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial 1 Classification Code Number)
----------------------------------------------------------------------
I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address and telephone number of Registrant's principal executive
offices)
----------------------------------------------------------------------
(Name, address, and telephone number of agent for service)
Approximate date of commencement of proposed sale to the public
____________________.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, please check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(b) of the Securities Exchange Act
of 1934 pursuant to General Instruction VI, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(g) of the Securities Exchange Act
of 1934 pursuant to General Instruction VI, please check the
following box. [ ]
----------------------------------------------------------------------
(Title of class)
----------------------------------------------------------------------
(Title of class)
[[Page 30421]]
Calculation of Registration Fee
----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered unit price registration fee
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Note: Specific details relating to the fee calculation shall be
furnished in notes to the table, including references to provisions
of Rule 457 (Sec. 230.457 of this chapter) relied upon, if the basis
of the calculation is not otherwise evident from the information
presented in the table. If the filing fee is calculated pursuant to
Rule 457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate offering
price for that class of securities and the amount of registration
fee need to appear in the Calculation of Registration Fee table. Any
difference between the dollar amount of securities registered for
such offerings and the dollar amount of securities sold may be
carried forward on a future registration statement pursuant to Rule
429 under the Securities Act.
General Instructions
* * * * *
VI. Registration Under the Securities Exchange Act of 1934
A. Subject to General Instruction VI.B., this form may be used
for concurrent registration pursuant to section 12 (b) or (g) of the
Securities Exchange Act of 1934 (``Exchange Act'') of any class of
securities listed under ``Title of each class of securities to be
registered'' on the cover page of this registration statement.
B. If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal
year, except for the fact that the Exchange Act registration on this
form will become effective before such report is required to be
filed, an annual report for such fiscal year shall nevertheless be
filed within the period specified in the appropriate annual report
form.
C. If a class of securities is concurrently being registered
under the Exchange Act, the provisions of Rule 12d1-2 of the
Exchange Act apply with respect to the effectiveness of the
registration statement for Exchange Act purposes.
D. At least one complete, signed copy of the registration
statement shall be filed with each exchange on which the securities
are to be registered.
* * * * *
Part II--Information Not Required in Prospectus
* * * * *
Signatures
Pursuant to the requirements of the Securities Act of 1933 [and
Section 12 of the Securities Exchange Act of 1934], the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form F-1 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
____________________, State of ____________________, on __________,
19____.
(Registrant)-----------------------------------------------------------
By (Signature and Title)-----------------------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
(Signature)------------------------------------------------------------
(Title)----------------------------------------------------------------
(Date)-----------------------------------------------------------------
Instructions
* * * * *
3. If a class of securities is being registered concurrently
under the Exchange Act, the registrant should sign the registration
statement in accordance with the requirements of both the Securities
Act and Section 12 of the Exchange Act.
* * * * *
24. By amending Sec. 239.33 by revising the section heading and
introductory text to Sec. 239.33, by removing the phrase ``Securities
Exchange Act of 1934 ('Exchange Act')'' from paragraph (a)(1) and in
its place adding ``Exchange Act'' and by adding paragraph (c) to read
as follows:
Sec. 239.33 Form F-3, for registration under the Securities Act of
1933 and section 12(b) or (g) of the Securities Exchange Act of 1934 of
securities of certain foreign private issuers offered pursuant to
certain types of transactions.
This instruction sets forth registrant requirements and transaction
requirements for the use of Form F-3. Any foreign private issuer, as
defined in Sec. 230.405 of this chapter, which meets the requirements
of paragraph (a) of this section (``Registrant Requirements'') may use
this Form F-3 for the registration of securities under the Securities
Act of 1933 (``Securities Act'') which are offered in any transaction
specified in paragraph (b) of this section (``Transaction
Requirements''), provided that the requirements applicable to the
specified transaction are met. With respect to majority-owned
subsidiaries, see Paragraph (a)(5) of this section. In addition, this
form may be used for the concurrent registration of securities pursuant
to section 12(b) or (g) (15 U.S.C. 78l(b) or (g)) of the Securities
Exchange Act of 1934 (``Exchange Act''), subject to paragraph (c) of
this section (``Registration Pursuant to the Exchange Act'').
* * * * *
(c) Registration Pursuant to the Exchange Act. Registrants may use
this form to register concurrently a class of securities pursuant to
section 12(b) or (g) (15 U.S.C. 78l(b) or (g)) of the Exchange Act
subject to the following:
(1) Subject to paragraph (c)(2) of this section, this form may be
used for concurrent registration pursuant to section 12 (b) or (g) of
the Exchange Act of any class of securities being registered on this
form under the Securities Act of 1933.
(2) If the registrant would be required to file an annual report
pursuant to section 15(d) (15 U.S.C. 78o(d)) of the Exchange Act for
its last fiscal year, except for the fact that the Exchange Act
registration on this form will become effective before such report is
required to be filed, an annual report for such fiscal year shall
nevertheless be filed within the period specified in the appropriate
annual report form.
(3) Concurrent registration under the Exchange Act is not available
when securities being registered on this Form pursuant to paragraphs
(b)(1) and (b)(2) of this section are to be offered on a delayed basis
pursuant to Sec. 230.415(a)(1)(x) of this chapter.
25. By amending Form F-3 (referenced in Sec. 239.33) by revising
the title to the form and the facing page, by adding General
Instruction V, by amending the signature requirements in Part II (not
including the Instructions thereto), and by adding paragraph 4. to the
Instructions to ``Signatures'' to read as follows:
Note: The text of Form F-3 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
[[Page 30422]]
Form F-3
Securities and Exchange Commission
Form F-3
Registration Statement Under the Securities Act of 1933 and Section
12(b) or (g) of the Securities Exchange Act of 1934
----------------------------------------------------------------------
(Exact Name of Registrant as specified in its charter)
----------------------------------------------------------------------
(Translation of Registrant's name into English)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(I.R.S. Employer Identification Number)
----------------------------------------------------------------------
(Address and telephone number of Registrant's principal executive
offices)
----------------------------------------------------------------------
(Name, address, and telephone number of agent for service)
Approximate date of commencement of proposed sale to the public
____________________.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, please check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(b) of the Securities Exchange Act
of 1934 pursuant to General Instruction V, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(g) of the Securities Exchange Act
of 1934 pursuant to General Instruction V, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934:
----------------------------------------------------------------------
(Title of class)
----------------------------------------------------------------------
(Title of class)
Calculation of Registration Fee
----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered unit price registration fee
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Note: Specific details relating to the fee calculation shall be
furnished in notes to the table, including references to provisions
of Rule 457 (Sec. 230.457 of this chapter) relied upon, if the basis
of the calculation is not otherwise evident from the information
presented in the table. If the filing fee is calculated pursuant to
Rule 457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate offering
price for that class of securities and the amount of registration
fee need to appear in the ``Calculation of Registration Fee'' table
(``Fee Table''). Where two or more classes of securities are being
registered pursuant to General Instruction II.C, however, the Fee
Table need not specify by each class the proposed maximum aggregate
offering price (See General Instruction II.C). Any difference
between the dollar amount of securities registered for such
offerings and the dollar amount of securities sold may be carried
forward on a future registration statement pursuant to Rule 429
under the Securities Act.
General Instructions
* * * * *
V. Registration Under the Securities Exchange Act of 1934
A. Subject to General Instruction V.B., this form may be used
for concurrent registration pursuant to section 12(b) or (g) of the
Securities Exchange Act of 1934 (``Exchange Act'') of any class of
securities listed under ``Title of each class of securities to be
registered'' on the cover page of this registration statement.
B. If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal
year, except for the fact that the Exchange Act registration on this
form will become effective before such report is required to be
filed, an annual report for such fiscal year shall nevertheless be
filed within the period specified in the appropriate annual report
form.
C. If a class of securities is concurrently being registered
under the Exchange Act, the provisions of Rule 12d1-2 of the
Exchange Act apply with respect to the effectiveness of the
registration statement for Exchange Act purposes.
D. At least one complete, signed copy of the registration
statement shall be filed with each exchange on which the securities
are to be registered.
E. Concurrent registration under the Exchange Act is not
available when securities being registered on this Form pursuant to
General Instruction I.B.I and I.B.2. are to be offered on a delayed
basis pursuant to Sec. 230.415(a)(1)(x) of this chapter.
* * * * *
Part II-- Information Not Required in Prospectus
* * * * *
Signatures
Pursuant to the requirements of the Securities Act of 1933 [and
Section 12 of the Securities Exchange Act of 1934], the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form F-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
____________________, State of____________________, on __________,
19____.
(Registrant)-----------------------------------------------------------
By (Signature and Title)-----------------------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
(Signature)------------------------------------------------------------
(Title)----------------------------------------------------------------
(Date)-----------------------------------------------------------------
[[Page 30423]]
Instructions
* * * * *
4. If a class of securities is being registered concurrently
under the Exchange Act, the registrant should sign the registration
statement in accordance with the requirements of both the Securities
Act and Section 12 of the Exchange Act.
26. By amending Sec. 239.34 by revising the section heading, by
designating the introductory text of Sec. 239.34 as paragraph (a), by
redesignating paragraphs (a) through (e) as paragraphs (a)(1) through
(a)(5), and by adding paragraph (b) to read as follows:
Sec. 239.34 Form F-4, for the registration under the Securities Act of
1933 and section 12(b) or (g) of the Securities Exchange Act of 1934 of
securities of foreign private issuers issued in certain business
combination transactions.
* * * * *
(b) Registrants may use this form to register concurrently a class
of securities pursuant to section 12(b) or (g) (15 U.S.C. 78l(b) or
(g)) of the Securities Exchange Act of 1934 (``Exchange Act'') subject
to the following:
(1) Subject to paragraph (b)(2) of this section, this Form F-4 may
be used for concurrent registration pursuant to section 12(b) or (g) of
the Exchange Act of any class of securities being registered on this
form under the Securities Act of 1933;
(2) If the registrant would be required to file an annual report
pursuant to section 15(d) (15 U.S.C. 78o(d)) of the Exchange Act for
its last fiscal year, except for the fact that the Exchange Act
registration on this Form F-4 will become effective before such report
is required to be filed, an annual report for such fiscal year shall
nevertheless be filed within the period specified in the appropriate
annual report form; and
(3) Concurrent registration under the Exchange Act is not available
when securities being registered on this Form are to be offered on a
delayed basis pursuant to Sec. 230.415(a)(1)(x) of this chapter.
27. By amending Form F-4 (referenced in Sec. 239.34) by revising
the title to the form and the facing page, by adding General
Instruction H, by revising the signature requirements in Part II (not
including the Instructions thereto), and by adding paragraph 4. to the
Instructions to ``Signatures'' to read as follows:
Note: The text of Form F-4 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
Form F-4
Securities and Exchange Commission
Form F-4
Registration Statement Under the Securities Act of 1933 and Section
12(b) or (g) of the Securities Exchange Act of 1934
----------------------------------------------------------------------
(Exact Name of Registrant as specified in its charter)
----------------------------------------------------------------------
(Translation of Registrant's name into English)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(Address, including zip code, and telephone nu
FR Doc. 96-14183 Phase Two Recommendations of Task Force on Disclosure Simplification
mber, including area
code, of Registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale of the
securities to the public ____________________.
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(b) of the Securities Exchange Act
of 1934 pursuant to General Instruction H, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
If any class of securities is to be concurrently registered on
this Form pursuant to Section 12(g) of the Securities Exchange Act
of 1934 pursuant to General Instruction H, please check the
following box. [ ]
Securities to be registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934:
----------------------------------------------------------------------
(Title of class)
----------------------------------------------------------------------
(Title of class)
Calculation of Registration Fee
----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered unit price registration fee
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Note: Specific details relating to the fee calculation shall be
furnished in notes to the table, including references to provisions
of Rule 457 (Sec. 230.457 of this chapter) relied upon, if the basis
of the calculation is not otherwise evident from the information
presented in the table.
General Instructions
* * * * *
H. Registration Under the Securities Exchange Act of 1934
1. Subject to General Instruction H.2., this form may be used
for concurrent registration pursuant to section 12 (b) or (g) of the
Exchange Act of any class of securities listed under ``Title of each
class of securities to be registered'' on the cover page of this
registration statement.
2. If the registrant would be required to file an annual report
pursuant to section 15(d) of the Exchange Act for its last fiscal
year, except for the fact that the Exchange Act registration on this
form will become effective before such report is required to be
filed, an annual report for such fiscal year shall nevertheless be
filed within the period specified in the appropriate annual report
form.
3. If a class of securities is concurrently being registered
under the Exchange Act, the provisions of Rule 12d1-2 of the
Exchange Act apply with respect to the effectiveness of the
registration statement for Exchange Act purposes.
4. At least one complete, signed copy of the registration
statement shall be filed with each
[[Page 30424]]
exchange on which the securities are to be registered.
5. Concurrent registration under the Exchange Act is not
available when securities being registered on this Form pursuant to
General Instruction F are to be offered on a delayed basis pursuant
to Sec. 230.415(a)(1)(x) of this chapter.
* * * * *
Part II--Information Not Required in Prospectus
* * * * *
Signatures
Pursuant to the requirements of the Securities Act of 1933 [and
Section 12 of the Securities Exchange Act of 1934], the registrant
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
__________________, State of ____________________, on __________,
19____.
(Registrant)-----------------------------------------------------------
By (Signature and Title)-----------------------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
(Signature)------------------------------------------------------------
(Title)----------------------------------------------------------------
(Date)-----------------------------------------------------------------
Instructions
* * * * *
4. If a class of securities is being registered concurrently
under the Exchange Act, the registrant should sign the registration
statement in accordance with the requirements of both the Securities
Act and Section 12 of the Exchange Act.
Sec. 239.61 [Removed and Reserved]
28. By removing and reserving Sec. 239.61 and by removing Form SR.
29. By revising Sec. 239.500 to read as follows:
Sec. 239.500 Form D, notice of sales of securities under Regulation D.
An issuer offering or selling securities in reliance on Regulation
D (Sec. 230.501 through Sec. 230.508 of this chapter) shall prepare a
notice on Form D promptly after the first sale of securities. The
issuer shall retain the notice until three years after the date of the
first sale of securities. Upon request, the issuer shall furnish to the
Commission or its staff a copy of the Form D notice.
30. By amending Form D (referenced in Sec. 239.500) by revising the
General Instructions to read as follows:
Note: The text of Form D does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
Form D
* * * * *
General Instructions
Federal
Who Must Prepare: All issuers making an offering of securities
in reliance on an exemption under Regulation D, 17 CFR 230.501 et
seq., should prepare this notice promptly after the first sale of
securities.
Recordkeeping Requirement: The issuer shall retain this notice
until three years after the date of the first sale of securities.
Upon request, the issuer shall furnish to the Commission or its
staff a copy of the Form D notice.
State
This notice shall be used to indicate reliance on the Uniform
Limited Offering Exemption (ULOE) for sales of securities in those
states that have adopted ULOE and that have adopted this Form.
Issuers relying on ULOE must file a separate notice with the
Securities Administrator in each state where sales are to be, or
have been, made. If a state requires the payment of a fee as a
precondition to the claim for the exemption, a fee in the proper
amount shall accompany this Form. This notice shall be filed in the
appropriate states in accordance with state law. The Appendix to the
notice constitutes a part of this notice and must be completed.
* * * * *
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
31. The authority citation for Part 240 continues to read in part
as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77eee, 77ggg,
77nnn, 77sss, 77ttt, 78c, 78d, 78i, 78j, 78l, 78m, 78n, 78o, 78p,
78q, 78s, 78w, 78x, 78ll(d), 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-
37, 80b-3, 80b-4 and 80b-11, unless otherwise noted.
* * * * *
32. By adding Sec. 240.12a-8 to read as follows:
Sec. 240.12a-8 Exemption of depositary shares.
Depositary shares (as that term is defined in Sec. 240.12b-2)
registered on Form F-6 (Sec. 239.36 of this chapter), but not the
underlying deposited securities, shall be exempt from the operation of
section 12(a) of the Act (15 U.S.C. 78l(a)).
33. By revising the undesignated subject heading preceding
Sec. 240.12d1-1 to read as follows:
Certification by Exchanges and Effectiveness of Registration
* * * * *
34. By amending Sec. 240.12d1-2 by revising paragraph (b) and
adding paragraphs (c) and (d) to read as follows:
Sec. 240.12d1-2 Effectiveness of registration.
* * * * *
(b) A registration statement on Form 8-A (17 CFR 249.208a) shall
become effective:
(1) With respect to a class of securities registered pursuant to
section 12(b) of the Act (15 U.S.C. 78l(b)), upon the later of receipt
by the Commission of certification from the national securities
exchange or the filing of the Form 8-A with the Commission; or
(2) With respect to a class of securities registered pursuant to
section 12(g) of the Act (15 U.S.C. 78l(g)), upon the filing of Form 8-
A with the Commission.
(c) A registration statement that concurrently registers a class of
securities under the Securities Act of 1933 and section 12(b) (15
U.S.C. 78l(b)) of the Act shall become effective pursuant to the Act at
the later of either the effectiveness of the registration statement
pursuant to the Securities Act of 1933 or receipt by the Commission of
certification by the exchange.
(d) A registration statement that concurrently registers a class of
securities under the Securities Act of 1933 and section 12(g) (15
U.S.C. 78l(g)) of the Act shall become effective pursuant to the Act at
the same time as the effectiveness of the registration statement
pursuant to the Securities Act of 1933.
35. By amending Sec. 240.12g-3 by revising paragraphs (a) and (b),
by redesignating paragraph (c) as paragraph (d), by adding paragraph
(c) to read as follows:
Sec. 240.12g-3 Registration of securities of successor issuers.
(a) Where in connection with a succession by merger, consolidation,
exchange of securities or acquisition of assets, securities of an
issuer, not previously registered pursuant to section 12 of the Act (15
U.S.C. 78l), are issued to the holders of any class of securities of
another issuer that is registered pursuant to either section 12 (b) or
(g) of the Act (15 U.S.C. 78l(b) or (g)), the class of securities so
issued shall be deemed to be registered under the same paragraph of
section 12 of the Act unless upon consummation of the succession such
class is exempt from such registration other than by Sec. 240.12g3-2 or
all securities of such class are held of record by less than 300
persons or the securities issued in connection with the succession were
registered on Form F-8 or Form F-80 (Sec. 239.38 or Sec. 239.41 of this
chapter) and following succession the successor would not be required
to register such class of securities under section 12 of the Act but
for this section.
(b) Where in connection with a succession by merger, consolidation,
exchange of securities or acquisition of assets, securities of an
issuer, that are
[[Page 30425]]
not registered pursuant to section 12 of the Act (15 U.S.C. 78l), are
issued to the holders of any class of securities of another issuer that
is required to file a registration statement pursuant to either section
12(b) or (g) of the Act (15 U.S.C. 78l(b) or (g)) but has not yet done
so, the duty to file such statement shall be deemed to have been
assumed by the issuer of the class of securities so issued and such
issuer shall file a registration statement pursuant to the same
paragraph of section 12 of the Act with respect to such class within
the period of time the predecessor issuer would have been required to
file such a statement unless upon consummation of the succession such
class is exempt from such registration other than by Sec. 240.12g3-2 or
all securities of such class are held of record by less than 300
persons or the securities issued in connection with the succession were
registered on Form F-8 or Form F-80 (Sec. 239.38 or Sec. 239.41) and
following the succession the successor would not be required to
register such class of securities under section 12 of the Act but for
this section.
(c) Where in connection with a succession by merger, consolidation,
exchange of securities or acquisition of assets, securities of an
issuer not previously registered pursuant to section 12 of the Act (15
U.S.C. 78l) are issued to the holders of classes of securities of more
than one other issuer that are each registered pursuant to section 12
of the Act, the class of securities so issued shall be deemed to be
registered under section 12 of the Act unless upon consummation of the
succession such class is exempt from such registration other than by
Sec. 240.12g3-2 or all securities of such class are held of record by
less than 300 persons or the securities issued in connection with the
succession were registered on Form F-8 or Form F-80 (Sec. 239.38 or
Sec. 239.41 of this chapter) and following succession the successor
would not be required to register such class of securities under
section 12 of the Act but for this section. If the classes of
securities issued by each of the predecessor issuers are registered
under the same paragraph of section 12 of the Act, the class of
securities issued by the successor issuer will be deemed registered
under the same paragraph of section 12 of the Act. If the classes of
securities issued by the predecessor issuers each are registered under
different paragraphs of section 12 of the Act, then the successor
issuer shall indicate in the Form 8-K (Sec. 249.308) report filed with
the Commission in connection with the succession, pursuant to the
requirements of Form K-8, the paragraph of section 12 of the Act under
which the class of securities issued by the successor issuer will be
deemed registered.
* * * * *
36. By revising paragraph (a) of Sec. 240.15d-5 to read as follows:
Sec. 240.15d-5 Reporting by successor issuers.
(a) Where in connection with a succession by merger, consolidation,
exchange of securities or acquisition of assets, securities of any
issuer that is not required to file reports pursuant to Section 15(d)
(15 U.S.C. 78o(d)) of the Act are issued to the holders of any class of
securities of another issuer that is required to file such reports, the
duty to file reports pursuant to such section shall be deemed to have
been assumed by the issuer of the class of securities so issued and
such issuer shall after the consummation of the succession file reports
in accordance with such section, and the rules and regulations
thereunder unless such issuer is exempt from filing such reports or the
duty to file such reports is suspended under said section.
* * * * *
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
37. The authority citation for Part 249 continues to read in part
as follows:
Authority 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
38. By amending Sec. 249.208a by revising paragraph (c) and adding
paragraph (d) to read as follows:
Sec. 249.208a Form 8-A, for registration of certain classes of
securities pursuant to section 12 (b) or (g) of the Securities Exchange
Act of 1934.
* * * * *
(c) If this form is used for the registration of a class of
securities pursuant to Section 12(b) of this Act (15 U.S.C. 78l(b)), it
shall become effective upon the later of receipt by the Commission of
certification from the national securities exchange or the filing of
the Form 8-A with the Commission.
(d) If this form is used for the registration of securities
pursuant to Section 12(g) of the Act (15 U.S.C. 78l(g)), it shall
become effective upon filing with the Commission.
39. By amending Form 8-A (referenced in Sec. 249.208a) by revising
paragraph (c) of General Instruction A, by adding paragraph (d) to
General Instruction A, by revising the two check boxes on the cover
page, and by revising ``Item 1'' under ``Information Required In
Registration Statement'' before the Instruction to read as follows:
Note: The text of Form 8-A does not, and the amendments will
not, appear in the Code of Federal Regulations.
Form 8-A
For Registration of Certain Classes of Securities Pursuant to Section
12 (b) or (g) of the Securities Exchange Act of 1934
GENERAL INSTRUCTIONS
* * * * *
A. Rule as to Use of Form 8-A.
* * * * *
(c) If this form is used for the registration of a class of
securities pursuant to Section 12(b) of the Exchange Act, it shall
become effective upon the later of receipt by the Commission of
certification from the exchange or the filing of the Form 8-A with
the Commission.
(d) If this form is used for the registration of securities
pursuant to Section 12(g) of the Act, it shall become effective upon
filing with the Commission.
* * * * *
Securities And Exchange Commission, Washington, DC 20549
Form 8-A
For Registration of Certain Classes of Securities Pursuant to Section
12 (b) or (g) of the Securities Exchange Act of 1934
* * * * *
If this form relates to the registration of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), please check the following box. [ ]
If this form relates to the registration of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), please check the following box. [ ]
* * * * *
Information Required in Registration Statement
Item 1. Description of Registrant's Securities to be Registered
Furnish the information required by Item 202 of Regulation S-K
(Sec. 229.202 of this chapter). Small business issuers may furnish
the information required by Item 202 of Regulation S-B (Sec. 228.202
of this chapter).
* * * * *
Sec. 249.208b [Removed and Reserved]
40. By removing and reserving Sec. 249.208b and by removing Form 8-
B.
41. By amending Form 20-F (referenced in Sec. 249.220f) by adding
paragraph (d) to Item 9 of Part I preceding the Instructions to read as
follows:
Note: The text of Form 20-F does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
[[Page 30426]]
Form 20-F
* * * * *
Part I
* * * * *
Item 9. Management's Discussion and Analysis of Financial Condition and
Results of Operations
* * * * *
(d) Use of proceeds.
As required by Rule 463 (17 CFR 230.463) under the Securities
Act of 1933 (``Securities Act''), following the effective date of
the first registration statement filed under the Securities Act by
an issuer, the issuer or successor issuer shall report the use of
proceeds on its first annual report filed pursuant to Sections 13(a)
and 15(d) of the Exchange Act after effectiveness of its Securities
Act registration statement, and thereafter on each of its subsequent
annual reports filed pursuant to Sections 13(a) and 15(d) of the
Exchange Act through the later of the application of the offering
proceeds, or the termination of the offering. To the extent that a
report of the use of proceeds is required with respect to the first
effective registration statement of the predecessor issuer, the
successor issuer shall provide such a report. The information
provided pursuant to paragraphs (d)(2) through (d)(4) of this Item
need only be provided with respect to the first annual report filed
pursuant to Sections 13(a) and 15(d) of the Exchange Act after
effectiveness of the registration statement filed under the
Securities Act. Subsequent annual reports filed pursuant to Sections
13(a) and 15(d) of the Exchange Act need only provide the
information required in paragraphs (d)(2) through (d)(4) of this
Item if any of such required information has changed since the last
annual report filed. In disclosing the use of proceeds in the first
of such reports filed pursuant to the Exchange Act, the issuer or
successor issuer should include the following information:
(1) The effective date of the Securities Act registration
statement for which the report is being made, the Commission file
number assigned to the registration statement, and, if applicable,
the first six (6) digits of its CUSIP number;
(2) If the offering has commenced, the offering date, and if the
offering has not commenced, an explanation why it has not;
(3) If the offering terminated before any securities were sold,
an explanation for such termination; and
(4) If the offering did not terminate before any securities were
sold, disclose:
(i) Whether the offering terminated prior to the sale of all
securities registered;
(ii) The name(s) of the managing underwriter(s), if any;
(iii) The title of each class of securities registered and,
where a class of convertible securities is being registered, the
title of any class of securities into which such securities may be
converted;
(iv) For each class of securities (other than a class of
securities into which a class of convertible securities registered
may be converted without additional payment to the issuer) the
following information, provided for both the account of the issuer
and the account(s) of any selling security holder(s): the amount
registered, the aggregate price of the offering amount registered,
the amount sold and the aggregate offering price of the amount sold
to date;
(v) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
expenses incurred for the issuer's account in connection with the
issuance and distribution of the securities registered for
underwriting discounts and commissions, finders' fees, expenses paid
to or for underwriters, other expenses and total expenses. Indicate
whether such payments were: (A) direct or indirect payments to
directors, officers, general partners of the issuer or their
associates; to persons owning ten (10) percent or more of any class
of equity securities of the issuer; and to affiliates of the issuer;
or (B) direct or indirect payments to others. If the issuer is
providing a reasonable estimate for the amount of expenses incurred,
the issuer should indicate which figures provided are estimates;
(vi) The net offering proceeds to the issuer after deducting the
total expenses described in paragraph (d)(4)(v);
(vii) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
net offering proceeds to the issuer used for construction of plant,
building and facilities; purchase and installation of machinery and
equipment; purchases of real estate; acquisition of other
business(es); repayment of indebtedness; working capital; temporary
investments; and any other purposes for which at least five (5)
percent of the issuer's total proceeds or $50,000 (whichever is
less) has been used. Indicate whether such payments were: (A) direct
or indirect payments to directors, officers, general partners of the
issuer or their associates; to persons owning ten (10) percent or
more of any class of equity securities of the issuer; and to
affiliates of the issuer; or (B) direct or indirect payments to
others. If the issuer is providing a reasonable estimate for the
amount of net offering proceeds applied, the issuer should indicate
which figures provided are estimates; and
(viii) If the use of proceeds in paragraph (d)(4)(vii) of this
Item represents a material change in the use of proceeds described
in the prospectus, the issuer should describe briefly the material
change.
* * * * *
42. By amending Form 10-Q (referenced in Sec. 249.308a) by adding
paragraph (d) to Item 2 of Part II preceding the Instruction to read as
follows:
Note: The text of Form 10-Q does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
United States Securities and Exchange Commission,Washington, D.C. 20549
Form 10-Q
* * * * *
Part II--Other Information
* * * * *
Item 2. Changes in Securities
* * * * *
(d) As required by Rule 463 (17 CFR 230.463) of the Securities
Act of 1933 (``Securities Act''), following the effective date of
the first registration statement filed under the Securities Act by
an issuer, the issuer or successor issuer shall report the use of
proceeds on its first periodic report filed pursuant to Sections
13(a) and 15(d) of the Securities Exchange Act of 1934 (the ``Act'')
after effectiveness of its Securities Act registration statement,
and thereafter on each of its subsequent reports filed pursuant to
Sections 13(a) and 15(d) of the Act through the later of the
application of the offering proceeds, or the termination of the
offering. To the extent that a report of the use of proceeds is
required with respect to the first effective registration statement
of the predecessor issuer, the successor issuer shall provide such a
report. The information provided pursuant to paragraphs (d)(2)
through (d)(4) of this Item need only be provided with respect to
the first periodic report filed pursuant to Sections 13(a) and 15(d)
of the Act after effectiveness of the registration statement filed
under the Securities Act. Subsequent periodic reports filed pursuant
to Sections 13(a) and 15(d) of the Act need only provide the
information required in paragraphs (d)(2) through (d)(4) of this
Item if any of such required information has changed since the last
periodic report filed. In disclosing the use of proceeds in the
first of such reports filed pursuant to the Act, the issuer or
successor issuer should include the following information:
(1) The effective date of the Securities Act registration
statement for which the report is being made, the Commission file
number assigned to the registration statement, and, if applicable,
the first six (6) digits of its CUSIP number;
(2) If the offering has commenced, the offering date, and if the
offering has not commenced, an explanation why it has not;
(3) If the offering terminated before any securities were sold,
an explanation for such termination; and
(4) If the offering did not terminate before any securities were
sold, disclose:
(i) Whether the offering terminated prior to the sale of all
securities registered;
(ii) The name(s) of the managing underwriter(s), if any;
(iii) The title of each class of securities registered and,
where a class of convertible securities is being registered, the
title of any class of securities into which such securities may be
converted;
(iv) For each class of securities (other than a class of
securities into which a class of convertible securities registered
may be converted without additional payment to the issuer) the
following information, provided for both the account of the issuer
and the account(s) of any selling security holder(s): the amount
registered, the aggregate price of the offering amount registered,
the amount sold and the aggregate offering price of the amount sold
to date;
(v) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
[[Page 30427]]
expenses incurred for the issuer's account in connection with the
issuance and distribution of the securities registered for
underwriting discounts and commissions, finders' fees, expenses paid
to or for underwriters, other expenses and total expenses. Indicate
whether such payments were: (A) direct or indirect payments to
directors, officers, general partners of the issuer or their
associates; to persons owning ten (10) percent or more of any class
of equity securities of the issuer; and to affiliates of the issuer;
or (B) direct or indirect payments to others. If the issuer is
providing a reasonable estimate for the amount of expenses incurred,
the issuer should indicate which figures provided are estimates;
(vi) The net offering proceeds to the issuer after deducting the
total expenses described in paragraph (d)(4)(v);
(vii) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
net offering proceeds to the issuer used for construction of plant,
building and facilities; purchase and installation of machinery and
equipment; purchases of real estate; acquisition of other
business(es); repayment of indebtedness; working capital; temporary
investments; and any other purposes for which at least five (5)
percent of the issuer's total proceeds or $50,000 (whichever is
less) has been used. Indicate whether such payments were: (A) direct
or indirect payments to directors, officers, general partners of the
issuer or their associates; to persons owning ten (10) percent or
more of any class of equity securities of the issuer; and to
affiliates of the issuer; or (B) direct or indirect payments to
others. If the issuer is providing a reasonable estimate for the
amount of net offering proceeds applied, the issuer should indicate
which figures provided are estimates; and
(viii) If the use of proceeds in paragraph (d)(4)(vii) of this
Item represents a material change in the use of proceeds described
in the prospectus, the issuer should describe briefly the material
change.
* * * * *
43. By amending Form 10-QSB (referenced in Sec. 249.308b) by adding
paragraph (d) to Item 2 of Part II preceding the Instruction to read as
follows:
Note: The text of Form 10-QSB does not, and the amendments
thereto will not, appear in the Code of Federal Regulations.
Form 10-QSB
* * * * *
Part II--Other Information
* * * * *
Item 2. Changes in Securities
* * * * *
(d) As required by Rule 463 (17 CFR 230.463) of the Securities
Act of 1933 (``Securities Act''), following the effective date of
the first registration statement filed under the Securities Act by
an issuer, the issuer or successor issuer shall report the use of
proceeds on its first periodic report filed pursuant to Sections
13(a) and 15(d) of the Securities Exchange Act of 1934 (the ``Act'')
after effectiveness of its Securities Act registration statement,
and thereafter on each of its subsequent reports filed pursuant to
Sections 13(a) and 15(d) of the Act through the later of the
application of the offering proceeds, or the termination of the
offering. To the extent that a report of the use of proceeds is
required with respect to the first effective registration statement
of the predecessor issuer, the successor issuer shall provide such a
report. The information provided pursuant to paragraphs (d)(2)
through (d)(4) of this Item need only be provided with respect to
the first periodic report filed pursuant to Sections 13(a) and 15(d)
of the Act after effectiveness of the registration statement filed
under the Securities Act. Subsequent periodic reports filed pursuant
to Sections 13(a) and 15(d) of the Act need only provide the
information required in paragraphs (d)(2) through (d)(4) of this
Item if any of such required information has changed since the last
periodic report filed. In disclosing the use of proceeds in the
first of such reports filed pursuant to the Act, the issuer or
successor issuer should include the following information:
(1) The effective date of the Securities Act registration
statement for which the report is being made, the Commission file
number assigned to the registration statement, and, if applicable,
the first six (6) digits of its CUSIP number;
(2) If the offering has commenced, the offering date, and if the
offering has not commenced, an explanation why it has not;
(3) If the offering terminated before any securities were sold,
an explanation for such termination; and
(4) If the offering did not terminate before any securities were
sold, disclose:
(i) Whether the offering terminated prior to the sale of all
securities registered;
(ii) The name(s) of the managing underwriter(s), if any;
(iii) The title of each class of securities registered and,
where a class of convertible securities is being registered, the
title of any class of securities into which such securities may be
converted;
(iv) For each class of securities (other than a class of
securities into which a class of convertible securities registered
may be converted without additional payment to the issuer) the
following information, provided for both the account of the issuer
and the account(s) of any selling security holder(s): the amount
registered, the aggregate price of the offering amount registered,
the amount sold and the aggregate offering price of the amount sold
to date;
(v) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
expenses incurred for the issuer's account in connection with the
issuance and distribution of the securities registered for
underwriting discounts and commissions, finders' fees, expenses paid
to or for underwriters, other expenses and total expenses. Indicate
whether such payments were: (A) direct or indirect payments to
directors, officers, general partners of the issuer or their
associates; to persons owning ten (10) percent or more of any class
of equity securities of the issuer; and to affiliates of the issuer;
or (B) direct or indirect payments to others. If the issuer is
providing a reasonable estimate for the amount of expenses incurred,
the issuer should indicate which figures provided are estimates;
(vi) The net offering proceeds to the issuer after deducting the
total expenses described in paragraph (d)(4)(v) of this Item;
(vii) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
net offering proceeds to the issuer used for construction of plant,
building and facilities; purchase and installation of machinery and
equipment; purchases of real estate; acquisition of other
business(es); repayment of indebtedness; working capital; temporary
investments; and any other purposes for which at least five (5)
percent of the issuer's total proceeds or $50,000 (whichever is
less) has been used. Indicate whether such payments were: (A) direct
or indirect payments to directors, officers, general partners of the
issuer or their associates; to persons owning ten (10) percent or
more of any class of equity securities of the issuer; and to
affiliates of the issuer; or (B) direct or indirect payments to
others. If the issuer is providing a reasonable estimate for the
amount of net offering proceeds applied, the issuer should indicate
which figures provided are estimates; and
(viii) If the use of proceeds in paragraph (d)(4)(vii) of this
Item represents a material change in the use of proceeds described
in the prospectus, the issuer should describe briefly the material
change.
* * * * *
44. By amending Form 10-K (referenced in Sec. 249.310), Item 5 of
Part II by redesignating the current text as paragraph (a) and by
adding paragraph (b) to read as follows:
Note: The text of Form 10-K does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
Form 10-K
* * * * *
Part II
Item 5. Market for Registrant's Common Equity and Related Stockholder
Matters
* * * * *
(b) As required by Rule 463 (17 CFR 230.463) of the Securities
Act of 1933 (``Securities Act''), following the effective date of
the first registration statement filed under the Securities Act by
an issuer, the issuer or successor issuer shall report the use of
proceeds on its first periodic report filed pursuant to Sections
13(a) and 15(d) of the Securities Exchange Act of 1934 (the ``Act'')
after effectiveness of its Securities Act registration statement,
and thereafter on each of its subsequent reports filed pursuant to
Sections 13(a) and 15(d) of the Act through the later of the
application of the offering proceeds, or the termination of the
offering. To the extent that a report of the use of proceeds is
required with respect to the first effective registration statement
of the predecessor issuer, the successor issuer shall
[[Page 30428]]
provide such a report. The information provided pursuant to
paragraphs (b)(2) through (b)(4) of this Item need only be provided
with respect to the first periodic report filed pursuant to Sections
13(a) and 15(d) of the Act after effectiveness of the registration
statement filed under the Securities Act. Subsequent periodic
reports filed pursuant to Sections 13(a) and 15(d) of the Act need
only provide the information required in paragraphs (b)(2) through
(b)(4) of this Item if any of such required information has changed
since the last periodic report filed. In disclosing the use of
proceeds in the first of such reports filed pursuant to the Act, the
issuer or successor issuer should include the following information:
(1) The effective date of the Securities Act registration
statement for which the report is being made, the Commission file
number assigned to the registration statement, and, if applicable,
the first six (6) digits of its CUSIP number;
(2) If the offering has commenced, the offering date, and if the
offering has not commenced, an explanation why it has not;
(3) If the offering terminated before any securities were sold,
an explanation for such termination; and
(4) If the offering did not terminate before any securities were
sold, disclose:
(i) Whether the offering terminated prior to the sale of all
securities registered;
(ii) The name(s) of the managing underwriter(s), if any;
(iii) The title of each class of securities registered and,
where a class of convertible securities is being registered, the
title of any class of securities into which such securities may be
converted;
(iv) For each class of securities (other than a class of
securities into which a class of convertible securities registered
may be converted without additional payment to the issuer) the
following information, provided for both the account of the issuer
and the account(s) of any selling security holder(s): the amount
registered, the aggregate price of the offering amount registered,
the amount sold and the aggregate offering price of the amount sold
to date;
(v) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
expenses incurred for the issuer's account in connection with the
issuance and distribution of the securities registered for
underwriting discounts and commissions, finders' fees, expenses paid
to or for underwriters, other expenses and total expenses. Indicate
whether such payments were: (A) direct or indirect payments to
directors, officers, general partners of the issuer or their
associates; to persons owning ten (10) percent or more of any class
of equity securities of the issuer; and to affiliates of the issuer;
or (B) direct or indirect payments to others. If the issuer is
providing a reasonable estimate for the amount of expenses incurred,
the issuer should indicate which figures provided are estimates;
(vi) The net offering proceeds to the issuer after deducting the
total expenses described in paragraph (b)(4)(v) of this Item;
(vii) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
net offering proceeds to the issuer used for construction of plant,
building and facilities; purchase and installation of machinery and
equipment; purchases of real estate; acquisition of other
business(es); repayment of indebtedness; working capital; temporary
investments; and any other purposes for which at least five (5)
percent of the issuer's total proceeds or $50,000 (whichever is
less) has been used. Indicate whether such payments were: (A) direct
or indirect payments to directors, officers, general partners of the
issuer or their associates; to persons owning ten (10) percent or
more of any class of equity securities of the issuer; and to
affiliates of the issuer; or (B) direct or indirect payments to
others. If the issuer is providing a reasonable estimate for the
amount of net offering proceeds applied, the issuer should indicate
which figures provided are estimates; and
(viii) If the use of proceeds in paragraph (b)(4)(vii) of this
Item represents a material change in the use of proceeds described
in the prospectus, the issuer should describe briefly the material
change.
* * * * *
45. By amending Form 10-KSB (referenced in Sec. 249.310b), Item 5
of Part II by redesignating the current text as paragraph (a) and by
adding paragraph (b) to read as follows:
Note: The text of Form 10-KSB does not, and the amendments
thereto will not, appear in the Code of Federal Regulations.
Form 10-KSB
* * * * *
Part II
Item 5. Market for Common Equity and Related Stockholder Matters
* * * * *
(b) As required by Rule 463 (17 CFR 230.463) of the Securities
Act of 1933 (``Securities Act''), following the effective date of
the first registration statement filed under the Securities Act by
an issuer, the issuer or successor issuer shall report the use of
proceeds on its first periodic report filed pursuant to Sections
13(a) and 15(d) of the Securities Exchange Act of 1934 (the ``Act'')
after effectiveness of its Securities Act registration statement,
and thereafter on each of its subsequent reports filed pursuant to
Sections 13(a) and 15(d) of the Act through the later of the
application of the offering proceeds, or the termination of the
offering. To the extent that a report of the use of proceeds is
required with respect to the first effective registration statement
of the predecessor issuer, the successor issuer shall provide such a
report. The information provided pursuant to paragraphs (b)(2)
through (b)(4) of this Item need only be provided with respect to
the first periodic report filed pursuant to Sections 13(a) and 15(d)
of the Act after effectiveness of the registration statement filed
under the Securities Act. Subsequent periodic reports filed pursuant
to Sections 13(a) and 15(d) of the Act need only provide the
information required in paragraphs (b)(2) through (b)(4) of this
Item if any of such required information has changed since the last
periodic report filed. In disclosing the use of proceeds in the
first of such reports filed pursuant to the Act, the issuer or
successor issuer should include the following information:
(1) The effective date of the Securities Act registration
statement for which the report is being made, the Commission file
number assigned to the registration statement, and, if applicable,
the first six (6) digits of its CUSIP number;
(2) If the offering has commenced, the offering date, and if the
offering has not commenced, an explanation why it has not;
(3) If the offering terminated before any securities were sold,
an explanation for such termination; and
(4) If the offering did not terminate before any securities were
sold, disclose:
(i) Whether the offering terminated prior to the sale of all
securities registered;
(ii) The name(s) of the managing underwriter(s), if any;
(iii) The title of each class of securities registered and,
where a class of convertible securities is being registered, the
title of any class of securities into which such securities may be
converted;
(iv) For each class of securities (other than a class of
securities into which a class of convertible securities registered
may be converted without additional payment to the issuer) the
following information, provided for both the account of the issuer
and the account(s) of any selling security holder(s): the amount
registered, the aggregate price of the offering amount registered,
the amount sold and the aggregate offering price of the amount sold
to date;
(v) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
expenses incurred for the issuer's account in connection with the
issuance and distribution of the securities registered for
underwriting discounts and commissions, finders' fees, expenses paid
to or for underwriters, other expenses and total expenses. Indicate
whether such payments were: (A) direct or indirect payments to
directors, officers, general partners of the issuer or their
associates; to persons owning ten (10) percent or more of any class
of equity securities of the issuer; and to affiliates of the issuer;
or (B) direct or indirect payments to others. If the issuer is
providing a reasonable estimate for the amount of expenses incurred,
the issuer should indicate which figures provided are estimates;
(vi) The net offering proceeds to the issuer after deducting the
total expenses described in paragraph (b)(4)(v) of this Item;
(vii) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
net offering proceeds to the issuer used for construction of plant,
building and facilities; purchase and installation of machinery and
equipment; purchases of real estate; acquisition of other
business(es); repayment of indebtedness; working capital; temporary
investments; and any other purposes for which at least five (5)
percent of the issuer's total proceeds or $50,000 (whichever is
less) has been used. Indicate whether such payments were: (A) direct
or
[[Page 30429]]
indirect payments to directors, officers, general partners of the
issuer or their associates; to persons owning ten (10) percent or
more of any class of equity securities of the issuer; and to
affiliates of the issuer; or (B) direct or indirect payments to
others. If the issuer is providing a reasonable estimate for the
amount of net offering proceeds applied, the issuer should indicate
which figures provided are estimates; and
(viii) If the use of proceeds in paragraph (b)(4)(vii) of this
Item represents a material change in the use of proceeds described
in the prospectus, the issuer should describe briefly the material
change.
* * * * *
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940
46. The authority citation for Part 274 continues to read as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m,
78n, 78o(d), 80a-8, 80a-24, and 80a-29, unless otherwise noted.
* * * * *
47. By amending Secs. 239.14 and 274.11a-1 to add a new sentence at
the end of the section to read as follows:
Sec. 239.14 Form N-2, for closed end management investment companies
registered on Form N-8A.
Sec. 274.11a-1 Form N-2, registration statement of closed-end
management investment companies.
* * * In addition, this form may be used for the concurrent
registration of securities pursuant to section 12 of the Securities
Exchange Act of 1934 (15 U.S.C. 78l).
48. By amending Form N-2 (referenced in Sec. 239.14 and 274.11a-1)
on the facing page by adding after the check box heading ``Amendment
No. ______'' two check boxes; following the ``Calculation of
Registration Fee Table'' and before ``Instructions'' two line item
descriptions; adding a second paragraph to General Instruction A; and
in the signature requirements in Part C before the phrase ``and/or the
Investment Company Act of 1940'' adding the parenthetical ``(and
Section 12 of the Securities Exchange Act of 1934)'' to read as
follows:
Note: The text of Form N-2 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.
Form N-2
* * * * *
[ ] REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) UNDER THE
SECURITIES EXCHANGE ACT OF 1934
[ ] REGISTRATION STATEMENT PURSUANT TO SECTION 12(g) UNDER THE
SECURITIES EXCHANGE ACT OF 1934
* * * * *
Securities to be registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Securities to be registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934:
Title of each class to be so registered
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of each exchange on which each class is to be registered
----------------------------------------------------------------------
----------------------------------------------------------------------
* * * * *
General Instructions
A. Use of Form N-2
* * * * *
Form N-2 may be used for concurrent registration pursuant to
Sections 12 (b) or 12(g) of the Securities Exchange Act of 1934 [15
U.S.C. 78l(b) or (g)]. Registrants that intend to list their
securities on an exchange shall file at least one complete signed
copy of the registration statement with each exchange on which
securities are to be registered.
* * * * *
By the Commission.
Dated: May 31, 1996.
Jonathan G. Katz,
Secretary.
[FR Doc. 96-14183 Filed 6-13-96; 8:45 am]
BILLING CODE 8010-01-P
Complete official Federal Register PDF
FR Doc. 96-14000 Conflicts of Interest, Corporate Opportunity and Hazard Insurance
[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30190-30197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14000]
=======================================================================
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DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
12 CFR Parts 545, 556, 560, 563, and 571
[No. 96-48]
RIN 1550-AA89
Conflicts of Interest, Corporate Opportunity and Hazard Insurance
AGENCY: Office of Thrift Supervision, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of Thrift Supervision (OTS or agency) is proposing
to update and substantially streamline its regulations and policy
statements concerning conflicts of interest, usurpation of corporate
opportunity and hazard insurance. This notice of proposed rulemaking is
based on a detailed staff review of each pertinent regulation and
policy statement to determine whether they are necessary, impose the
least possible burden consistent with safety and soundness and
statutory requirements and are written in a clear, straightforward
manner. Today's proposal is being made pursuant to the Regulatory
Reinvention Initiative of the Vice President's National Performance
Review and section 303 of the Community Development and Regulatory
Improvement Act of 1994.
DATES: Comments must be received on or before August 13, 1996.
ADDRESSES: Send comments to Manager, Dissemination Branch, Records
Management and Information Policy, Office of Thrift Supervision, 1700 G
Street, NW., Washington, DC 20552, Attention Docket No. 96-48. These
submissions may be hand-delivered to 1700 G Street, NW., from 9:00 a.m.
to 5:00 p.m. on business days; they may be sent by facsimile
transmission to FAX Number (202) 906-7755. Comments will be available
for inspection at 1700 G Street, NW., from 9:00 a.m. until 4:00 p.m. on
business days.
FOR FURTHER INFORMATION CONTACT: Robyn Dennis, Program Manager, (202)
906-5751; or Francis Raue, Policy Analyst, (202) 906-5750, Supervision
Policy; or Dorene Rosenthal, Counsel (Banking and Finance), (202) 906-
7268, Regulations and Legislation Division, Chief Counsel's Office.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background of the Proposal
II. Objectives III. Description of the Proposal
A. Conflicts of Interest
B. Corporate Opportunity
C. Hazard Insurance
IV. Proposed Disposition of Conflicts of Interest, Corporate
Opportunity and Hazard Insurance Regulations and Policy Statements
V. Executive Order 12866
VI. Unfunded Mandates Act of 1995
VII. Regulatory Flexibility Act Analysis
I. Background of the Proposal
In a comprehensive review of the agency's regulations in the spring
of 1995, OTS identified numerous obsolete or redundant regulations that
could be quickly repealed. OTS also identified several key regulatory
areas for a more intensive, systematic regulatory burden review. These
areas--lending and investment authority, subsidiaries and equity
investments, corporate governance, conflicts of interest, corporate
opportunity and hazard insurance--were selected because they have a
significant impact on thrift operations, and have not been developed on
an interagency basis or been comprehensively reviewed for many years.
Today's proposal presents the results of an intensive review of OTS's
regulations and policy statements on conflicts of interest, corporate
opportunity and hazard insurance.
Since commencing its reinvention initiative in the spring of 1995,
OTS has already repealed eight percent of its regulations. In addition,
in January of 1996, OTS issued a comprehensive proposal on its lending
and investment regulations.1 Burden reduction proposals regarding
corporate governance and subsidiaries and equity investments will be
issued in the near future.
---------------------------------------------------------------------------
\1\ 61 FR 1162 (January 17, 1996).
---------------------------------------------------------------------------
Today's proposal regarding conflicts of interest, corporate
opportunity and hazard insurance will also result in significant
regulatory burden reduction. The proposal affects the following
regulatory sections:
Section 545.126--Referral of insurance business
Section 556.16--Insurance agencies--usurpation of corporate opportunity
Section 563.35--Restrictions involving loan services
Section 563.40--Restrictions on loan procurement fees, kickbacks and
unearned fees
Section 563.44--Loans involving mortgage insurance
Section 571.4--Hazard insurance
Section 571.7--Conflicts of interest
Section 571.9--Corporate opportunity in savings associations
OTS is proposing to repeal five of these provisions in their
entirety. The remaining three provisions--loan procurement fees,
conflicts of interest, and corporate opportunity--will be retained in
the form of regulations, but streamlined and clarified. The proposed
changes will, if adopted in final form, reduce the amount of CFR text
devoted to conflicts, corporate opportunity and hazard insurance from
six pages to half a page.
In developing this proposal, we have consulted with those who use
the regulations on a daily basis, including OTS regional staff and
representatives of the thrift industry. A focus group of five thrift
institutions and an industry trade association discussed staff's
initial recommendations. We have also reviewed the other federal
banking agencies' regulations and policy statements concerning
conflicts, corporate opportunity and hazard insurance.
II. Objectives
The overarching goal of OTS's reinvention initiative is to reduce
regulatory burden on savings associations to the greatest extent
possible consistent with statutory requirements and safety and
soundness. In the context of conflicts, corporate opportunity and
hazard insurance, we believe maximum burden reduction can be achieved
by pursuing three specific objectives.
First, we are attempting to eliminate duplication and overlap. The
conflicts, corporate opportunity and hazard insurance regulations have
existed essentially unchanged for over 20 years. During this time,
there have been significant statutory and regulatory advances,
including enactment of the Real Estate Settlement Procedures Act of
1974 (RESPA),2 amendments to the Home Owners' Loan Act of 1933
[[Page 30191]]
(HOLA) 3 and promulgation of the Interagency Real Estate Lending
Guidelines.4 As a result, much of OTS's conflicts of interest,
corporate opportunity and hazard insurance regulations and policy
statements have become outdated or obsolete. For example, the policy
statement regarding hazard insurance (Sec. 571.4) has been largely
superseded by the Interagency Real Estate Lending Guidelines.
Similarly, the regulatory provisions prohibiting a savings association
from conditioning the extension of credit on the borrower obtaining
certain other services from the institution (tying arrangements)
(Sec. 563.35) have been superseded by tying prohibitions in HOLA
section 5(q). Additionally, the regulatory provisions governing kick-
backs and unearned fees for loans (Sec. 563.40) are largely duplicative
of RESPA. Redundant regulatory coverage causes confusion and wastes
both industry and government resources. Today's proposal eliminates
duplication wherever possible.
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\2\ Pub. L. 93-533, 88 Stat. 1724, Dec. 22, 1974.
\3\ 12 U.S.C. 1461, et seq.
\4\ 57 FR 62890 (December 31, 1992).
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Second, as part of its reinvention effort, OTS is seeking to move
away from regulations that micromanage thrift operations. Our goal is
to focus the regulations on issues that are truly vital to safe and
sound operations, leaving other matters for handbook guidance. For
example, the regulations currently include three detailed provisions,
which occupy three pages of CFR text, governing when federal thrifts
can refer customers to affiliates that sell insurance. Although
insurance referrals were thought to be an important issue 20 years ago
when thrift service corporations were first authorized to sell
insurance, insurance referrals clearly do not lie at the heart of
safety and soundness today. Nor do they present issues distinct from
the general questions that arise whenever a thrift refers many other
types of business to affiliates. Accordingly, OTS is proposing to
repeal the insurance referral provisions in their entirety, leaving
insurance referrals to be handled in the same way as other corporate
opportunity issues. (See discussion of corporate opportunity below.)
Third, in its reinvention effort, OTS is seeking to enhance the
conciseness and clarity of its regulations. Accordingly, the three
provisions slated for retention in today's proposal are being revised
to remove ambiguous and imprecise language. For example, the current
306-word policy statement on conflicts of interest (Sec. 571.7) is
being converted to a 53-word regulation. The oblique reference to
actions that may create the ``appearance of a conflict of interest'' is
being removed. Instead, there will be a simple statement of a
fiduciary's common law duty ``not [to] advance [his or her] personal
interests, or those of others, at the expense of [his or her]
institution.''
Similarly, the corporate opportunity policy statement (Sec. 571.9)
is being converted to a regulation containing a simple statement of a
fiduciary's common law duty not to ``take advantage of corporate
opportunities belonging to [his or her] savings association.'' A second
sentence describes when an opportunity will be deemed to ``belong'' to
a savings association. The new regulation will be about one-third the
length of the current policy statement.
Each of the provisions being retained have been redrafted using
plain language techniques pioneered by the Department of Interior and
promoted by the Vice President's Regulatory Reinvention Initiative.
Plain language drafting emphasizes the use of informative headings,
short sentences, paragraphs and sections, non-technical language
(including the use of ``you''), and sentences in the active voice. The
goal of plain language drafting is to enhance clarity, thereby
decreasing industry frustration, inadvertent violations, the need to
seek clarification in correspondence and phone calls, and the amount of
time institutions must devote to understanding the regulations.
OTS is hopeful that the foregoing reforms will result in a
significant decrease in regulatory burden in the areas of conflicts,
corporate opportunity and hazard insurance.
III. Description of the Proposal
For each area covered by today's proposal--conflicts of interest,
corporate opportunity and hazard insurance--this section provides
historical background, an analysis of the disposition of the current
rules and a description of the proposed rules.
A. Conflicts of Interest
1. Historical Background
The Federal Home Loan Bank Board (FHLBB), the predecessor to OTS,
adopted the conflicts of interest policy statement (Sec. 571.7) in
1970. The FHLBB stated that the principles enunciated there are basic
to the continued viability and public acceptance of the thrift industry
in contemporary society.5 The policy statement, which prohibits
insiders from engaging in conflicts of interest that adversely affect
savings associations, has remained unchanged for over 25 years.
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\5\ FHLBB Memorandum to The Management of Each Insured
Institution from Chairman Martin (November 19, 1970).
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In 1974, Congress enacted RESPA to effect certain changes in
settlement procedures for residential real estate loans. It was
designed, among other things, to eliminate kickbacks or referral fees
that tend to increase unnecessarily the costs of certain settlement
services. Such kickbacks and fees also can create a conflict between an
officer or director's personal interests and those of his or her
association.
The following year, in response to abuses involving certain loan
practices, the FHLBB issued another rulemaking intended ``to delineate,
and prohibit or control, transactions which are, or are likely to be,
conflicts of interest'' and ``to prohibit financial, lending or
managerial policies or practices of insured institutions which are
detrimental to, or inconsistent with, sound and economic home-
financing.'' 6 The FHLBB revised the regulations prohibiting the
tying of loans and certain related services (Sec. 563.35) and
promulgated a new regulation prohibiting loan procurement fees,
kickbacks and unearned fees (Sec. 563.40). This regulation reiterated
and expanded upon the RESPA prohibitions on kickbacks and fees. A
separate regulation was promulgated to limit the potential for abuse
and risk as a result of self-dealing business practices relating to
mortgage insurance (Sec. 563.44). Basically, this regulation prohibits
a savings association from insuring any loan with an affiliated
mortgage insurance company.
---------------------------------------------------------------------------
\6\ 40 FR 43832, 43842 (September 23, 1975).
---------------------------------------------------------------------------
The Garn-St Germain Depository Institutions Act of 1982 7 also
addressed concerns about self-dealing practices related to lending.
This Act added a new HOLA section 5(q) prohibiting certain tying
arrangements.
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\7\ Pub. L. 97-320, 96 Stat. 1469, Oct. 15, 1982.
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Thus, the statutes, regulations and policy guidance concerning
conflicts of interest have evolved in a manner that results in a
significant amount of duplication and overlap.
2. Disposition of Current Rules
a. Section 571.7 Conflicts of interest. This policy statement says,
in essence, that directors, officers and other affiliated persons
8 have a fundamental duty to avoid placing themselves in a
position which creates, or which leads
[[Page 30192]]
to or could lead to, a conflict of interest or appearance of a conflict
of interest between their personal financial interests and the
interests of their association, where the interests of the association
are adversely affected.
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\8\ The terms ``director,'' ``officer'' and ``affiliated
person'' are defined below under the description of the Conflicts of
interest Proposed Rule.
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OTS proposes to codify this policy statement as a regulation, after
making modifications to clarify and simplify the language. OTS believes
this statement serves as an important reminder to thrift insiders of
their fiduciary duties to avoid conflicts of interest. (See description
of the Proposed Rule below.)
As noted above in the discussion of objectives, OTS believes that
its regulations should focus on issues vital to safety and soundness.
Fiduciary duties lie at the heart of safety and soundness. The thrift
crisis of the 1980s provided numerous examples of how fiduciary
breaches can undermine the stability of an institution. Thus, we
believe it is appropriate for the regulations to contain a brief
statement regarding the importance of avoiding conflicts of
interest.9 To eliminate any mention of conflicts of interest from
the CFR would not accurately reflect current OTS policy.
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\9\ We are aware that none of the other federal banking agencies
has specific regulations regarding fiduciary duties, except the
Office of the Comptroller of the Currency (OCC), which has a
regulation on conflicts of interest. 12 CFR 2.5. Recently, the OCC
proposed repeal of this provision, 60 FR 47498, 47500 (September 13,
1995), on grounds that it merely restates common law and a provision
in the National Bank Act requiring national bank directors to take
an oath to perform their duties diligently, honestly, and lawfully
(12 U.S.C. 73). Savings associations do not operate under a
statutory provision equivalent to 12 U.S.C. 73. For the reasons
stated above, OTS believes that a brief regulation on conflicts is
important.
---------------------------------------------------------------------------
b. Section 563.35 Restrictions involving loan services. Paragraph
(a) enumerates specific services typically involved in real estate
lending that cannot be ``tied'' to the granting of a loan: insurance
services (except insurance or a guarantee provided by a government
agency or private mortgage insurance); building materials or
construction services; borrower legal services; real estate or
brokerage services; and real estate property management services.
OTS proposes to delete this paragraph because it is redundant of
HOLA section 5(q), which prohibits a savings association from
conditioning the extension of credit on the borrower obtaining certain
other services from the institution. To the extent the regulatory
language provides useful illustrations of the type of conduct HOLA
prohibits, OTS will include this guidance in the Thrift Activities
Handbook.
Paragraphs (b) and (c) relate to hazard insurance. These paragraphs
and their proposed disposition will be discussed below in Part III.C.,
``Hazard insurance.''
Paragraph (d) provides that a savings association must give
residential borrowers a written itemization of fees in excess of $100
to be paid by the borrower for the lender's attorney. This requirement
was promulgated to protect the borrower from hidden subsidization of
legal services provided to the lender that are unrelated to the
borrower's particular loan.10
---------------------------------------------------------------------------
\10\ See FHLBB Letter of Tumler, Congressional Affairs (Sept.
18, 1978).
---------------------------------------------------------------------------
OTS proposes to delete this provision because borrowers' interests
are adequately protected by RESPA, which prohibits kickbacks and
unearned fees (12 U.S.C. 2607).11
---------------------------------------------------------------------------
\11\ In addition, RESPA also protects an institution's interest
in selecting its own settlement attorney. The law provides that an
arrangement requiring a borrower to pay the services of an attorney
chosen by the lender to represent the lender's interest in a real
estate transaction is not a violation of the general prohibition
against requiring the use of any particular provider of settlement
services (12 U.S.C. 2607(c)).
---------------------------------------------------------------------------
c. Section 563.40 Restrictions on loan procurement fees, kickbacks
and unearned fees. Paragraph (a) provides that no affiliated person of
a savings association may receive, either directly or indirectly, from
the association (or any other source) any fee in connection with the
procurement of a loan from the association or a subsidiary of the
association.
Under this provision, loan procurement fees (i.e., fees for finding
loan applicants) are prohibited, regardless of whether they are earned
or unearned. The term ``loan procurement fee'' does not include
payments for loan origination services (such as title examination,
appraisals, credit reports, drawing up of papers, loan closings, and
other services necessary and incident to loan origination).
OTS believes that loan procurement fees pose the risk that insiders
may approve bad loans in order to obtain fees. Thus, we propose to
retain this provision but to make clarifying amendments to more
precisely tailor the scope of the regulation to the practices we wish
to prohibit. (See description of Proposed Rule below.)
Paragraph (b) prohibits the payment of unearned fees for loan
origination and settlement services, but this does not prohibit savings
associations and third parties from paying fees for loan origination
services actually rendered. This paragraph extends the RESPA
prohibition on kickbacks and unearned fees in connection with
``federally related mortgage loans'' (i.e., loans secured by a 1-4
family home) to any loan on real property. This rule was promulgated by
the FHLBB to standardize the initial loan charges restrictions
applicable to all types of real property loans.12
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\12\ Before RESPA was enacted, the FHLBB had proposed a
regulation that would have imposed restrictions with respect to
initial loan charges on all real estate loans. 39 FR 42382 (December
5, 1974). These restrictions were different than RESPA's
restrictions with respect to federally related mortgage loans. The
FHLBB decided not to adopt its proposed restrictions and instead
applied RESPA's restrictions to all loans. 40 FR 43832, 43839
(September 23, 1975).
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OTS proposes to delete this paragraph because the regulation
extends the RESPA consumer protection provisions to commercial real
estate loans. We do not believe this protection is necessary for
commercial borrowers. None of the other banking agencies imposes a
similar restriction on banks. Thus, removing this provision will
establish parity with banks. To the extent paragraph (b) protects
thrifts from insiders engaging in prohibited conflicts of interest,
these conflicts would be covered by the new conflicts of interest
regulation.
d. Section 563.44 Mortgage insurance. Paragraph (a) contains
definitions used in this section. Paragraph (b) prohibits a savings
association (or service corporation affiliate) from insuring any loan
with a mortgage insurance company if certain affiliations are present.
The affiliations deemed to give rise to harmful conflicts of interest
are: the mortgage insurance company maintains a deposit account at the
association;13 there is an interrelationship of insiders or
employees; the association, affiliate or insiders have an ownership
interest in the mortgage company above specified limits; or the
mortgage insurance company pays a fee or commission to the association,
an affiliate or insiders.
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\13\ The rationale for this provision was to ensure that a
mortgage company was not forced to maintain an account at the
association as a condition for the placement or renewal of mortgage
insurance with the company. 41 FR 7497, 7498 (February 19, 1976).
---------------------------------------------------------------------------
Paragraph (c) provides an exception to grandfather investments made
by savings associations in the Pennsylvania Mortgage Insurance Company
prior to promulgation of Sec. 563.44. See 43 FR 60571, 60572 (December
28, 1978).
OTS proposes to repeal Sec. 563.44 since prohibited tying of
products is now covered by the statutory anti-tying provisions in HOLA
section 5(q). In addition, RESPA requires a lender to make disclosure
to a borrower when it has an interest in a mortgage insurance company
and to inform the borrower that services need not be obtained from
[[Page 30193]]
that particular company. Common law fiduciary duties, the statutory
rules governing transactions with affiliates, and OTS's new conflicts
of interest regulation will cover conflicts of interest related to
mortgage insurance companies. Thus, Sec. 563.44 adds an unnecessary
additional layer of regulation.
3. Proposed Rules
a. Conflicts of interest. As indicated above, OTS proposes to
convert its general policy statement on conflicts of interest
(Sec. 571.7) to a regulation (proposed Sec. 563.200). Proposed
Sec. 563.200 prohibits directors,14 officers,15 employees,
persons having the power to control the management or policies of
savings associations, and other persons who owe fiduciary duties to
savings associations from advancing their own personal or business
interests, or those of others, at the expense of the institutions they
serve.16
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\14\ The term ``director'' is defined in OTS regulations as: any
director, trustee or person performing similar functions with
respect to an organization. (Sec. 561.18.)
\15\ The term ``officer'' is defined in OTS regulations as: the
president, vice-president (but not an assistant vice-president or
second vice-president, or other vice-president with similar
authority to an assistant or second vice-president), the secretary,
the treasurer, the comptroller, any person performing similar
functions with respect to any organization, and the chairman of the
board of directors if the chairman participates in the management of
the organization. (Sec. 561.35.) The term ``officer'' would include
``senior executive officer,'' defined in OTS regulations as: chief
executive officer, chief operating officer, chief financial officer,
chief lending officer, chief investment officer and any other
individual who exercises significant influence over, or participates
in major policy decisions of the savings association or a savings
and loan holding company. (Sec. 574.9(a)(2).)
\16\ This statement reiterates the current common law fiduciary
duty these individuals and entities owe to their institutions. See,
e.g., E. Brodsky & M.P. Adamski, Law of Corporate Officers and
Directors: Rights, Duties and Liabilities, ch. 3 and 4 (1984 and
Supp. 1995) (directors and officers have fiduciary duties to avoid
conflicts of interest and corporate usurpation); and H. Henn & J.
Alexander, Laws of Corporations, Secs. 235-238 (3d ed. 1983)
(controlling shareholders may owe fiduciary duties to corporations).
---------------------------------------------------------------------------
The proposed rule differs from the current OTS policy statement on
conflicts of interest (Sec. 571.7) in several respects. First, today's
proposal removes an ``appearance of a conflict of interest'' from the
scope of the rule. The OTS continues to urge fiduciaries to avoid even
the appearance of a conflict of interest as a matter of good business
practice. However, OTS intends to focus its supervisory efforts on
actual conflicts.
Second, the proposal simplifies the language used to describe
prohibited conflicts. This should make it easier for persons covered by
the rule to understand what conduct is prohibited. The language of the
proposed rule tracks the language of OTS's 1992 ``Statement Concerning
Responsibilities of Officers and Directors,'' which clarified OTS
policy and reiterated general common law standards on the duty of
loyalty and the duty of care that directors and officers owe their
institutions.17 This statement is much shorter and clearer than
the current policy statement and is the same standard employed by the
Federal Deposit Insurance Corporation (FDIC).18
---------------------------------------------------------------------------
\17\ CEO Letter from Director Ryan (November 18, 1992).
\18\ FDIC Financial Institutions Letter 87-92 (December 17,
1992).
---------------------------------------------------------------------------
Third, the current policy statement covers ``affiliated persons.''
19 The term affiliated person does not precisely match the scope
of persons who at common law owe fiduciary duties to institutions. For
example, immediate family members are included within the definition of
affiliated person but they generally do not owe fiduciary duties under
the common law.
---------------------------------------------------------------------------
\19\ The term ``affiliated person'' is defined in OTS
regulations to include: officers, directors, controlling persons of
savings associations; immediate family members of officers,
directors and controlling persons; and corporations and trusts with
common ownership or control with the association. (Sec. 561.5.)
---------------------------------------------------------------------------
The proposed regulation refers specifically to directors, officers,
employees, persons having the power to control the management or
policies of savings associations and other persons who owe fiduciary
duties to savings associations. No reference is made to affiliated
persons.
As indicated above, ``directors'' and ``officers'' are defined in
OTS regulations. ``Employee'' is not defined, but this term is intended
to have its common meaning. OTS believes that coverage of employees is
important because there have been instances where employees' conflicts
of interest have harmed savings associations.
Persons having the power to control the management or policies of
savings associations would include both natural persons and companies.
Generally, a shareholder of a savings association controls the
management or policies of a savings association if the shareholder owns
twenty-five percent or more of the voting stock of the
institution.20 Any other shareholder or other person who makes
significant policy decisions for the institution would also be covered
by the proposed regulation.
---------------------------------------------------------------------------
\20\ See 12 U.S.C. 1817(j) and 1467a.
---------------------------------------------------------------------------
OTS does not attempt to define in this regulation who else (besides
directors, officers, employees and persons who control management) owes
fiduciary duties to savings associations. If a person owes a fiduciary
duty under common law to a savings association, then that person must
not advance his or her own interests at the expense of the institutions
he or she serves.
b. Prohibition on loan procurement fees. OTS is moving the
prohibition on loan procurement fees (Sec. 563.40(a)) to a new section
(Sec. 560.130) in its proposed Part 560 on Lending and Investment and
is narrowing the scope of the rule.
The current rule covers ``affiliated persons.'' Today's proposal
will apply only to directors, officers 21 and natural persons
having the power to control the management or policies of savings
associations. OTS continues to believe that loan procurement fees paid
to these persons pose a threat to the safety and soundness of savings
associations. Such fees provide incentives to these individuals to
bring loans into the association and to press for their approval,
without giving proper consideration to whether they are a good
investment for the institution. This is a classic example of a conflict
of interest: the person's interest in financial gain from a loan
procurement fee would be adverse to the institution's interest in
making only high quality loans.
---------------------------------------------------------------------------
\21\ The proposed rule, like the current rule, would not apply
to loan officers and branch managers who do not make significant
policy decisions for the institution. However, any loan procurement
bonus or incentive system for employees who are not senior executive
officers must be consistent with the safe and sound operation of the
savings association. For illustrative examples of what compensation
provisions OTS may consider unsafe and unsound, see OTS Regulatory
Bulletin 27a, ``Executive Compensation.'' This bulletin does not
specifically apply to incentive programs for employees who are not
senior executive officers, but it does provide general guidance in
this area.
---------------------------------------------------------------------------
However, by eliminating the reference to ``affiliated person,'' the
rule will no longer apply to holding companies and holding company
affiliates of savings associations. OTS believes that loan procurement
fees paid to corporate affiliates pose less risk for several reasons.
First, these fees, unlike fees paid to officers and directors, are
subject to section 23B of the Federal Reserve Act (FRA).22 Under
section 23B, all payments to corporate affiliates must be on arms-
length terms for services actually rendered. Second, as a practical
matter, an individual officer or director generally would have greater
ability to directly or indirectly influence a loan approval than a
corporate affiliate because of direct reporting relationships.
---------------------------------------------------------------------------
\22\ 12 U.S.C. 371c-1.
---------------------------------------------------------------------------
With the proposed change, affiliates of thrifts that are mortgage
brokers will
[[Page 30194]]
be able to receive an arms-length fee when acting as agent soliciting
loans for affiliated thrifts.
B. Corporate Opportunity
1. Historical Background
In 1974, the FHLBB adopted a general corporate opportunity policy
statement to apprise savings association officers, directors and
controlling persons of their fiduciary duty not to appropriate business
opportunities that belong to the association.23 The policy
statement was not intended to impose new legal duties, but simply to
codify existing common law fiduciary principles.24
---------------------------------------------------------------------------
\23\ 37 FR 6696 (February 22, 1974).
\24\ Id.
---------------------------------------------------------------------------
The following year, the FHLBB promulgated Secs. 545.126, 556.16,
and 571.9(b). Taken together, these provisions describe in elaborate
detail when federal thrifts can refer insurance business to insurance
agencies that affiliated persons control without raising concerns about
usurpation of corporate opportunity. As structured, these provisions
impose a general ban on referral of insurance business to affiliated
persons, but then carve out numerous exceptions (e.g. when the thrift
is located in a state that prohibits insurance sales by thrifts).
The FHLBB developed these rules to apply general corporate
opportunity law to the operation of insurance agencies by management of
federal associations, and to avoid case-by-case determinations. The
rules focused on the insurance business because insurance brokerage had
recently been added to the list of preapproved activities for savings
association service corporations. These rules were designed to
eliminate opportunities for insider abuse and to protect insurance
business opportunities for savings associations and their subsidiaries.
2. Disposition of Current Rules
a. Section 545.126 Referral of Insurance Business. This section
prohibits a federal savings association from referring any insurance
business to an agency owned by officers or directors of the
association, or by individuals having the power to direct its
management, subject to certain exceptions. The exceptions are: (i) a
state statute or regulation prohibits a federal savings association's
service corporation (or wholly owned subsidiary thereof) from engaging
in the insurance business; (ii) the state regulator has denied the
association's application to engage in the insurance business; (iii)
the state regulator has an established and well-known policy of denying
such applications; (iv) the referral takes place within a reasonable
time after a change in state law, regulation or policy; and (v) an
application to establish or acquire an insurance business is pending
with OTS or the appropriate state agency.
OTS proposes to delete this provision. This regulation was enacted
over 20 years ago to control the perceived risks of usurpation of
corporate opportunity related to the insurance agency business. In the
agency's experience, insurance referrals have not presented risks that
differ either in degree or kind from the risks presented by referrals
of other types of business. Accordingly, insurance referrals, like
other referrals, will be reviewed under the proposed general corporate
opportunity regulation. (See description of the Proposed Rule below.)
b. Section 556.16 Insurance agencies--usurpation of corporate
opportunities. This section, which substantially duplicates
Sec. 545.126, provides that a federal savings association's corporate
opportunity to engage in the insurance business is usurped if it refers
any insurance business to an agency owned by officers or directors of
the association, or by individuals having the power to direct its
management, subject to certain exceptions. The policy statement
contains a number of exceptions to this general rule. Exceptions apply
if the referral takes place: (i) while an application to establish or
acquire an insurance business is pending with OTS or the appropriate
state agency; (ii) while a state statute or regulation prohibits a
federal savings association's service corporation (or wholly owned
subsidiary thereof) from engaging in the insurance business; (iii)
while the state licensing authority or regulator has an established and
well-known policy of refusing to accept or process applications by
federal savings associations to engage in the insurance business; or
(iv) within a reasonable time after a change in state law, regulation
or policy. Additional exceptions apply for referrals where (i) the
referral took place before May 20, 1971; (ii) the association's
application to obtain necessary state approval to engage in the
insurance business was denied; (iii) a disinterested majority of the
association's board of directors votes for sound business reasons to
reject the opportunity; or (iv) there is no economic justification for
the association to engage in the insurance business. This section also
provides that if a corporate opportunity is usurped, the association is
entitled to the benefit of the transaction.
Section 556.16 was published in 1975 at the same time the FHLBB
promulgated Sec. 545.126. It appears that the FHLBB may have intended
for Sec. 556.16 to state the standards applicable to insurance
referrals that had already occurred and for Sec. 545.126 to state the
standards applicable to all subsequent insurance referrals. However,
Sec. 556.16 is not worded in a manner that limits it to retrospective
application. Thus, OTS has traditionally read both sections together.
OTS proposes repealing Sec. 556.16 for the reasons discussed above
under Sec. 545.126.
c. Section 571.9 Corporate opportunity in savings associations.
Paragraph (a) of this policy statement states that it is a breach of
fiduciary duty for a director, officer or person having the power to
direct the management of an institution to take advantage of a business
opportunity for his or her own or another person's personal profit or
benefit when the opportunity is within the corporate powers of the
association or its service corporation and when the opportunity is of
present or potential practical advantage to the association. Any of
these persons who usurps a corporate opportunity is liable to the
association or its service corporation for the benefit of the
transaction or business.
This paragraph further provides that in determining whether an
opportunity is of present or potential practical advantage to the
association, OTS will consider, among other things, the financial,
managerial and technical resources of the association and its service
corporation, and the reasonable ability of the association directly or
through a service corporation to acquire such resources.
OTS proposes to codify this policy statement as a regulation, with
modifications to shorten and simplify the regulatory language. (See
description of the Proposed Rule below.) A general regulation
concerning usurpation of corporate opportunity will serve as an
important reminder to thrift insiders of their fundamental duty to
protect the interests of their institution. OTS believes that avoiding
corporate usurpation is as essential to safety and soundness as
avoiding conflicts of interest. Thus, the OTS believes it is
appropriate for the regulations to contain a brief statement regarding
corporate usurpation.
Paragraph (b) provides that a usurpation of corporate opportunity
to engage in the insurance business is an unsafe and unsound practice.
For the reasons set forth above under Sec. 545.126, OTS proposes
deleting this paragraph.
[[Page 30195]]
Insurance referrals will be treated the same as other types of
referrals. They will be subject to the general standards in the
proposed corporate opportunity regulation.
3. Proposed Rule
Paragraph (a) of OTS's proposed corporate opportunity regulation
prohibits directors or officers of savings associations, persons having
the power to control the management or policies of savings associations
and other persons who owe a fiduciary duty to savings associations from
taking advantage of corporate opportunities belonging to their savings
association or its subsidiaries. Paragraph (b) of the proposed rule,
like the current policy statement on corporate opportunity, indicates
that a corporate opportunity will be deemed to belong to the savings
association if: (a) It is within the corporate powers of the savings
association or its subsidiary; and (b) the opportunity is of present or
potential practical advantage to the savings association, directly or
through its subsidiary.
OTS intends for common law standards governing usurpation of
corporate opportunity to be applied in determining when an opportunity
would be of present or potential practical advantage to an institution.
Examples of the types of issues that fiduciaries should consider under
this standard include, without limitation, an institution's financial
condition and management resources, the level of risk presented by the
business, and potential profit from the business weighed against any
profits that might arise from transfer of the business. Prior OTS
interpretations have indicated that a usurpation of corporate
opportunity does not occur when an institution receives fair market
value consideration for transfer of a line of business. By definition,
an institution that receives fair market value receives as much as it
conveys.
The scope of the proposed regulation on corporate opportunity
differs from the scope of the current policy statement in one small
respect. The current policy statement refers to directors, officers and
other persons having power to direct management of savings associations
which includes both natural persons and companies. To this OTS proposes
to add a reference to ``other persons who owe fiduciary duties to
savings associations.'' 25 This will ensure that the scope of the
regulation equates to the scope of common law fiduciary duties.
---------------------------------------------------------------------------
\25\ Employees are specifically mentioned in the proposed
conflicts regulation, but not in the proposed corporate opportunity
regulation. OTS has encountered a number of instances in which
employee conflicts have been problematic. Similar problems have not
arisen in the usurpation area. In those rare instances where an
employee breaches a common law duty regarding usurpation of
corporate opportunity, the employee will be covered by the general
reference in the corporate opportunity regulation to ``other persons
who owe fiduciary duties to savings associations.''
---------------------------------------------------------------------------
In the past questions have arisen regarding the extent to which the
corporate opportunity doctrine applies to dealings between savings
associations and their holding companies. The reference in the proposed
regulation to persons having power to direct management or policies of
savings associations includes holding companies. Thus, under the
proposed regulation, the dealings of holding companies with their
subsidiary thrifts will be subject to the doctrine of usurpation of
corporate opportunity to the same extent as provided by common law.
OTS realizes, however, that there is not a great deal of common law
guidance regarding the nature of a controlling shareholder's duties to
the depositors of a wholly-owned thrift or bank, especially with
respect to the usurpation doctrine. OTS also believes that the
transactions with affiliates provisions of sections 23A and 23B of the
FRA,26 as well as general principles of safety and soundness,
generally provide an adequate basis for regulating dealings between
thrifts and their holding companies. Thus, barring egregious
circumstances or instances where a thrift is undercapitalized or
unprofitable, OTS supervisors and examiners will generally defer to
holding company decisions regarding where to allocate lines of business
within a holding company structure, provided there is no violation of
FRA sections 23A and 23B or general principles of safety and soundness.
---------------------------------------------------------------------------
\26\ 12 U.S.C. 371c and 371c-1.
---------------------------------------------------------------------------
C. Hazard Insurance
1. Historical Background
The FHLBB published a 1966 policy statement providing for the
maintenance of hazard insurance policies on real property securing
loans made or purchased by savings associations (Sec. 571.4).27
The FHLBB's regulation on restrictions involving loan services
(Sec. 563.35), published in 1975, contains additional hazard insurance
requirements.
---------------------------------------------------------------------------
\27\ 31 FR 9539 (July 14, 1966). In 1959 the FHLBB published a
policy statement requiring federally chartered associations to
maintain hazard insurance on the property securing loans
(Sec. 556.4). As part of Phase I of OTS's Regulatory Review, this
provision was deleted because it imposed duplicative requirements to
those set forth in Sec. 571.4. 61 FR 66866, 66869 (December 27,
1995).
---------------------------------------------------------------------------
Over the past several years, the safety and soundness restrictions
on thrifts' lending have been substantially revised. The Federal
Deposit Insurance Corporation Improvement Act of 1991 28 required
the federal banking agencies to develop uniform real estate lending
standards. In 1992, OTS, Board of Governors of the Federal Reserve
System, FDIC and OCC adopted a uniform rule on real estate lending and
developed Interagency Guidelines for Real Estate Lending Policies.
These rules and guidelines generally require that institutions adopt
real estate lending policies consistent with safety and soundness and
that such policies include prudent underwriting standards. Among other
things, prudent underwriting standards include guidelines regarding
insurance coverage of security property.
---------------------------------------------------------------------------
\28\ Pub. L. 102-242, 105 Stat. 2236, Dec. 19, 1991.
---------------------------------------------------------------------------
2. Disposition of Current Rules
a. Section 571.4 Hazard insurance. Paragraph (a) of this policy
statement provides that all savings associations should include in
their loan contracts provisions requiring borrowers to maintain hazard
insurance in a sufficient amount to protect the savings association
from loss in the event of damage to or destruction of the real estate
securing the savings association's loans.
Paragraph (b) requires the insurance policy to name and protect the
savings association as mortgagee in an amount at least equal to its
insurable interest in the security. The policy also must cover perils
commonly included in ``Standard Fire and Extended Coverage,'' as well
as other perils commonly required by institutional lenders operating in
the same area.
Paragraph (c) stipulates that examiners will review loan files for
evidence that appropriate hazard insurance is in force.
Details regarding hazard insurance are unnecessary in light of the
general safety and soundness requirements set forth in the Interagency
Real Estate Lending Guidelines and standard business practices in the
mortgage lending industry. OTS proposes to delete this section. As
noted in the objectives section, OTS does not believe its regulations
should micromanage thrift operations. OTS examiners will review the
sufficiency of thrifts' lending standards and practices during
examinations.
[[Page 30196]]
b. Section 563.35 Restrictions involving loan services. Paragraphs
(b) and (c) contain additional hazard insurance requirements. Paragraph
(b) requires a savings association to inform borrowers of their right
to freely select providers of insurance services. Paragraph (c) says a
savings association may refuse to make a loan if the borrower's choice
of insurance services would provide insufficient coverage.
OTS proposes to repeal Sec. 563.35 (b) and (c). Savings
associations have authority to refuse to make loans in the absence of
adequate insurance coverage with or without paragraph (c). As for
paragraph (b), OTS believes that RESPA provides an adequate safety net
regarding loan origination practices. Eliminating paragraphs (b) and
(c) will establish parity with banks.
IV. Proposed Disposition of Conflicts of Interest, Corporate
Opportunity and Hazard Insurance Regulations and Policy Statements
The following chart displays the proposed disposition of OTS's
existing conflicts of interest, corporate opportunity and hazard
insurance regulations and policy statements. OTS intends to review all
the regulations and policy statements that it is proposing to repeal to
determine which are appropriate to convert into guidance in the Thrift
Activities Handbook.
------------------------------------------------------------------------
Original New
provision provision Comment
------------------------------------------------------------------------
Sec. 545.1
26........ ......... Removed.
Sec. 556.1
6......... ......... Removed.
Sec. 563.3
5......... ......... Removed.
Sec. 563.4
0(a)...... Sec. 560
.130 Modified.
Sec. 563.4
0(b)...... ......... Removed.
Sec. 563.4
4......... ......... Removed.
Sec. 571.4 ......... Removed.
Sec. 571.7 Sec. 563
.200 Modified.
Sec. 571.9
(a)....... Sec. 563
.201 Modified.
Sec. 571.9
(b)....... ......... Removed.
------------------------------------------------------------------------
V. Executive Order 12866
The Director of OTS has determined that this proposed rule does not
constitute a ``significant regulatory action'' for the purposes of
Executive Order 12866.
VI. Unfunded Mandates Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L.
104-4 (Unfunded Mandates Act), requires that an agency prepare a
budgetary impact statement before promulgating a rule that includes a
federal mandate that may result in expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year. If a budgetary impact statement is
required, section 205 of the Unfunded Mandates Act also requires an
agency to identify and consider a reasonable number of regulatory
alternatives before promulgating a rule. As discussed in the preamble,
this proposed rule reduces regulatory burden and clarifies the
fiduciary duties that directors, officers and other fiduciaries owe to
savings associations. OTS has determined that the proposed rule will
not result in expenditures by state, local, or tribal governments or by
the private sector of $100 million or more. Accordingly, this
rulemaking is not subject to section 202 of the Unfunded Mandates Act.
VII. Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act, OTS
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities.
List of Subjects
12 CFR Part 545
Accounting, Consumer protection, Credit, Electronic funds
transfers, Investments, Manufactured homes, Mortgages, Reporting and
recordkeeping requirements, Savings associations.
12 CFR Part 556
Savings associations.
12 CFR Part 560
Consumer protection, Investments, Manufactured homes, Mortgages,
Reporting and recordkeeping requirements, Savings associations,
Securities.
12 CFR Part 563
Accounting, Advertising, Crime, Currency, Flood insurance,
Investments, Mortgages, Reporting and recordkeeping requirements,
Savings associations, Securities, Surety bonds.
12 CFR Part 571
Hazard insurance, Conflict of interests, Corporate opportunity.
Accordingly, the Office of Thrift Supervision proposes to amend
chapter V, title 12, Code of Federal Regulations, as set forth below.
PART 545--OPERATIONS
1. The authority citation for part 545 continues to read as
follows:
Authority: 12 U.S.C. 1462a, 1463, 1464, 1828.
Sec. 545.126 [Removed]
2. Section 545.126 is removed.
PART 556--STATEMENTS OF POLICY
3. The authority citation for part 556 continues to read as
follows:
Authority: 5 U.S.C. 552, 559; 12 U.S.C. 1464, 1701j-3; 15 U.S.C.
1693-1693r.
Sec. 556.16 [Removed]
4. Section 556.16 is removed.
PART 560--LENDING AND INVESTMENT
5. Part 560 as proposed to be added at 61 FR 1177 is amended as
follows:
a. The authority citation for part 560 is revised to read as
follows:
Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1701j-3, 1828,
3803, 3806; 42 U.S.C. 4106
b. Section 560.130 is added to read as follows:
Sec. 560.130 Prohibition on loan procurement fees.
If you are a director, officer, or other natural person having the
power to direct the management or policies of a savings association,
you must not receive, either directly or indirectly, any commission,
fee, or other compensation in connection with the procurement of any
loan made by the association or a subsidiary of the association.
PART 563--OPERATIONS
6. The authority citation for part 563 continues to read as
follows:
Authority: 12 U.S.C. 375b, 1462, 1462a, 1463, 1464, 1467a, 1468,
1817, 1828, 3806; 42 U.S.C. 4106.
Sec. 563.35 [Removed]
7. Section 563.35 is removed.
Sec. 563.40 [Removed]
8. Section 563.40 is removed.
Sec. 563.44 [Removed]
9. Section 563.44 is removed.
10. Section 563.200 is added to read as follows:
Sec. 563.200 Conflicts of interest.
If you are a director, officer, or employee of a savings
association, or have the power to direct its management or policies, or
otherwise owe a fiduciary duty to a savings association, you must not
advance your own personal or business interests, or those of others, at
the expense of the savings association.
11. Section 563.201 is added to read as follows:
Sec. 563.201 Corporate opportunity.
(a) If you are a director or officer of a savings association, or
have the power to direct its management or policies, or otherwise owe a
fiduciary duty to a
[[Page 30197]]
savings association, you must not take advantage of corporate
opportunities belonging to the savings association.
(b) A corporate opportunity belongs to a savings association if:
(1) The opportunity is within the corporate powers of a savings
association or a subsidiary of the savings association; and
(2) The opportunity is of present or potential practical advantage
to the savings association, either directly or through its subsidiary.
PART 571--STATEMENTS OF POLICY
12. The authority citation for part 571 continues to read as
follows:
Authority: 5 U.S.C. 552, 559; 12 U.S.C. 1462a, 1463, 1464.
Secs. 571.4, 571.7, 571.9 [Removed]
13. Sections 571.4, 571.7 and 571.9 are removed.
Dated: May 29, 1996.
By the Office of Thrift Supervision.
Jonathan L. Fiechter,
Acting Director.
[FR Doc. 96-14000 Filed 6-13-96; 8:45 am]
BILLING CODE 6720-01-P
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