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Code · REGISTER · 2004-08-24 · SECURITIES AND EXCHANGE COMMISSION · Notices

Notices. Notice of modification of Airport Improvement Program grant assurances and of the opportunity to comment

14,549 words·~66 min read·/register/2004/08/24/04-19378·

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BILLING CODE 7590-01-M SECURITIES AND EXCHANGE COMMISSION Issuer Delisting; Notice of Application of Lions Gate Entertainment Corp., To Withdraw Its Common Stock, No Par Value, From Listing and Registration on the American Stock Exchange LLC File No. 1-14880 August 18, 2004. On August 6, 2004, Lions Gate Entertainment Corp., a British Columbia corporation (“Issuer”), filed an application with the Securities and Exchange Commission (“Commission”), pursuant to Section 12(d) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 12d2-2(d) thereunder, 2 to withdraw its common stock, no par value, (“Security”), from listing and registration on the American Stock Exchange LLC (“Amex” or “Exchange”). 1 15 U.S.C. 78 *1* (d). 2 17 CFR 240.12d2-2(d).
The Board of Directors of the Issuer (“Board”) approved a resolution on August 5, 2004 to withdraw the Issuer's Security from listing on the Amex, and to list the Security on the New York Stock Exchange, Inc. (“NYSE”). The Board states that, as of August 9, 2004, the Security began trading on the NYSE. The Board states the reason for delisting its Security from the Amex and listing on the NYSE is based on the Issuer's belief that the NYSE was a more appropriate trading market for the Security given the increase in the Issuer's size and market capitalization over the last year.
The Issuer stated in its application that it has met the requirements of Amex Rule l8 by complying with all applicable laws in British Columbia, in which it is incorporated, and with the Amex's rules governing an issuer's voluntary withdrawal of a security from listing and registration. The Issuer's application relates solely to the withdrawal of the Security from listing on the Amex, and shall not affect its continued listing on the NYSE or its obligation to be registered under Section 12(b) of the Act. 3 3 15 U.S.C. 78 *1* (b).
Any interested person may, on or before September 10, 2004, comment on the facts bearing upon whether the application has been made in accordance with the rules of the Amex, and what terms, if any, should be imposed by the Commission for the protection of investors. All comment letters may be submitted by either of the following methods: Electronic Comments • Send an e-mail to *rule-comments@sec.gov.* Please include the File Number 1-14880 or; Paper Comments • Send paper Comments in triplicate to Jonathan G.
Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number 1-14880. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/delist.shtml* ). Comments are also available for public inspection and copying in the Commission's Public Reference Room, 450 Fifth Street, NW., Washington, DC 20549.
All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 4 4 17 CFR 200.30-3(a)(1).
Jonathan G. Katz, Secretary. [FR Doc. E4-1887 Filed 8-23-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50211; File No. 4-429] Joint Industry Plan; Notice of Filing of Amendment No. 13 to the Options Intermarket Linkage Plan Regarding Natural Size August 18, 2004. Pursuant to Section 11A of the Securities Exchange Act of 1934 (the “Act”) 1 and Rule 11Aa3-2 thereunder, 2 notice is hereby given that on May 10, 2004, May 11, 2004, June 22, 2004, July 21, 2004, August 12, 2004, and August 16, 2004, the International Securities Exchange LLC (“ISE”), Chicago Board Options Exchange, Inc.
(“CBOE”), American Stock Exchange LLC (“Amex”), Pacific Exchange, Inc. (“PCX”), Philadelphia Stock Exchange, Inc. (“Phlx”), and Boston Stock Exchange, Inc. (“BSE”) (collectively the “Participants”) respectively submitted to the Securities and Exchange Commission (“Commission”) Amendment No. 13 to the Plan for the Purpose of Creating and Operating an Intermarket Options Linkage (the “Linkage Plan”). 3 The amendment proposes to modify the definitions of Firm Customer Quote Size (“FCQS”) and Firm Principal Quote Size (“FPQS”). 4 The Commission is publishing this notice to solicit comments from interested persons on the proposed Linkage Plan amendment. 1 15 U.S.C. 78k-1. 2 17 CFR 240.11Aa3-2. 3 On July 28, 2000, the Commission approved a national market system plan for the purpose of creating and operating an intermarket options market linkage proposed by the Amex, CBOE, and ISE. *See* Securities Exchange Act Release No. 43086 (July 28, 2000), 65 FR 48023 (August 4, 2000).
Subsequently, upon separate requests by the Phlx, PCX, and BSE, the Commission issued orders to permit these exchanges to participate in the Linkage Plan. *See* Securities Exchange Act Release Nos. 43573 (November 16, 2000), 65 FR 70850 (November 28, 2000), 43574 (November 16, 2000), 65 FR 70851 (November 28, 2000) and 49198 (February 5, 2004), 69 FR 7029 (February 12, 2004). 4 Sections 2
(11)and
(12)of the Linkage Plan. I. Description and Purpose of the Amendment The Participants propose to modify the definitions of FCQS and FPQS to accommodate the “natural size” of quotations. The Linkage Plan currently requires that the Participants be firm for both Principal Acting as Agent and Principal Orders for at least 10 contracts. The proposed Amendment would permit exchanges to be firm for the actual size of their quotation, even if this amount is less than 10 contracts. The Participants represent that they adopted the “10-up” requirement for the Linkage Plan at a time when all the Participants had rules requiring that their quotations be firm for customer orders for at least 10 contracts. The Participants further represent that they either have amended, or are in the process of amending, such rules. Therefore, the Participants are seeking to conform the quotation requirements for incoming Linkage Orders to be consistent with the quotation requirements for other orders. Specifically, the proposed Amendment seeks to change to the definitions of both FCQS and FPQS. While the proposed Amendment would maintain a general requirement that the FCQS and FPQS be at least 10 contracts, that requirement would not apply if a Participant were disseminating a quotation of fewer than 10 contracts. In that case, the Participant may establish a FCQS or FPQS equal to its disseminated size. As with Linkage orders today, if the order is of a size eligible for automatic execution at both the sending and receiving exchanges, the receiving exchange must provide an automated execution of the Linkage order. If this is not the case (for example, the receiving exchange's auto-ex system is not engaged), the receiving exchange may allow the order to drop to manual handling. However, the receiving exchange still must provide a manual execution for at least the FCQS or FPQS, as appropriate (in this case, the size of its disseminated quotation of less than 10 contracts). II. Implementation of the Plan Amendment The Participants intend to make the proposed amendment to the Linkage Plan reflected in this filing effective when the Commission approves the amendment. III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an E-mail to *rule-comments@sec.gov.* Please include File Number 4-429 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number 4-429. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal offices of the Amex, BSE, CBOE, ISE, PCX and Phlx. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number 4-429 and should be submitted on or before September 14, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 5 5 17 CFR 200.30-3(a)(29). J. Lynn Taylor, Assistant Secretary. [FR Doc. E4-1889 Filed 8-23-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [[Release No. 34-50214; File No. SR-Amex-2004-49] Self-Regulatory Organizations; American Stock Exchange LLC; Order Granting Approval to Proposed Rule Change To Allow Amex Hearing Officers To Preside Over Default and Settlement Proceedings Without Empanelling Members of the Hearing Board To Serve on an Amex Disciplinary Panel August 18, 2004. On June 28, 2004, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to amend Section 1(b)9 of article V of the Amex Constitution, and Rule 2(b) of the Amex Rules of Procedure in Disciplinary Matters, to allow Amex hearing officers to preside over default and settlement proceedings without empanelling members of the Hearing Board to serve on an Amex Disciplinary Panel. The proposed rule change was published for comment in the **Federal Register** on July 15, 2004. 3 The Commission received no comments on the proposal. This order approves the proposed rule change. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 49991 (July 9, 2004), 69 FR 42472. The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange 4 and, in particular, the requirements of Section 6(b) of the Act, 5 and the rules and regulations thereunder. The Commission finds specifically that the proposed rule change is consistent with Section 6(b)(7) of the Act, 6 in that it is designed to provide a fair and efficient procedure for the disciplining of members and persons associated with members. Moreover, the Commission finds the proposed rule change furthers the objectives of Section 6(b)(5) of the Act 7 in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, to protect investors and the public interest, and is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. 4 In approving this proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 5 15 U.S.C. 78f(b). 6 15 U.S.C. 78f(b)(7). 7 15 U.S.C. 78f(b)(5). *It is therefore ordered,* pursuant to Section 19(b)(2) of the Act, 8 that the proposed rule change (SR-Amex-2004-49) be, and it hereby is, approved. 8 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 9 9 17 CFR 200.30-3(a)(12). J. Lynn Taylor, Assistant Secretary. [FR Doc. E4-1893 Filed 8-23-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50212; File No. SR-CBOE-2004-55] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the Chicago Board Options Exchange, Inc. To Incorporate Electronic DPMs August 18, 2004. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on August 3, 2004, the Chicago Board Options Exchange, Inc. (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared by the CBOE. The CBOE has designated this proposal as one establishing or changing a due, fee, or other charge imposed by the CBOE under Section 19(b)(3)(A)(ii) of the Act, 3 and Rule 19b-4(f)(2) thereunder, 4 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(ii). 4 17 CFR 240.19b-4(f)(2). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The CBOE proposes to amend its marketing fee to incorporate newly established electronic DPMs (“e-DPMs”) as part of the existing marketing fee. 5 Below is the text of the proposed rule change. Proposed new language is *italicized.* 5 On July 12, 2004, the Commission approved the establishment of e-DPMs. *See* Securities Exchange Act Release No. 50003 (July 12, 2004), 69 FR 43028 (July 19, 2004) (SR-CBOE-2004-24). CHICAGO BOARD OPTIONS EXCHANGE, INC. FEE SCHEDULE 1. No Change. 2. MARKET MAKER *, e-DPM* & DPM MARKETING FEE (in option classes in which a DPM has been appointed)
(6)$.40 3.-4. No Change. Notes: (1)-(5) No Change.
(6)The Marketing Fee will be assessed only on transactions of Market-Makers *, e-DPMs* and DPMs resulting from customer orders from payment accepting firms with which the DPM has agreed to pay for that firm's order flow, and with respect to orders from customers that are for 200 contracts or less. (7)-(13) No change. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the CBOE included statements concerning the purpose of and basis for its proposal and discussed any comments it had received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Effective June 1, 2003, the Exchange reinstated its marketing fee program in order for the CBOE to compete with other markets in attracting options order flow in multiply traded options from firms that include payment as a factor in their order routing decisions in designated classes of options. 6 The Exchange proposes to incorporate e-DPMs in the existing marketing fee program. The CBOE states that, in all other respects, the marketing fee program would continue to function and operate in the same manner as the existing marketing fee program. 7 6 *See* Securities Exchange Act Release No. 47948 (May 30, 2003), 68 FR 33749 (June 5, 2003) (SR-CBOE-2003-19). 7 *Id.* The Exchange would impose the fee at a rate of $.40 per contract on Market-Maker transactions, including DPMs and e-DPMs, in all classes of options in which a DPM has been appointed, as described below. According to the CBOE, this program, like the CBOE's prior marketing fee program, provides for the equitable allocation of a reasonable fee among the CBOE's members and is designed to enable the CBOE to compete with other markets in attracting options order flow in multiply traded options from firms that include payment as a factor in their order routing decisions in designated classes of options. The CBOE proposes that the marketing fee be assessed only on those Market-Maker, DPM, and e-DPM transactions resulting from orders from customers of payment accepting firms (“payment accepting firms”) with which the DPM has agreed to pay for that firm's order flow. The Exchange states that it would not have any role with respect to the negotiations between DPMs and payment accepting firms on the amount of the payment, including which payment accepting firms DPMs negotiate with to send their order flow to CBOE and the amount of the payment. Rather, the Exchange proposes to facilitate payment to payment accepting firms from fees collected from Market-Makers, e-DPMs, and DPMs. In those classes for which a DPM has advised the Exchange that it has negotiated with a payment accepting firm to pay for that firm's order flow, the Exchange would provide administrative support for the program. Specifically, the Exchange would keep track of the number of qualified orders each payment accepting firm directs to the Exchange, and would make the necessary debits and credits to the accounts of the DPMs, e-DPMs, Market-Makers, and the payment accepting firms to reflect the payments that are to be made. The Exchange represents that all of the funds generated by the fee would be used only to pay the firms for the order flow sent to the Exchange. The Exchange believes that the $.40 per contract is an equitable allocation of a reasonable fee among the CBOE's members. The CBOE states that it has designed this program to enable it to compete with other markets in attracting options order flow in multiply traded options. If a DPM advises the Exchange that it has negotiated a lower amount, the Exchange would refund to Market-Makers, e-DPMs, and DPMs the excess fee collected. The CBOE proposes that the marketing fee be assessed only on transactions of Market-Makers (including e-DPMs and DPMs) resulting from orders for 200 contracts or less from customers of payment accepting firms. In the CBOE's view, because the marketing fee will be passed through to only those Market-Makers' transactions resulting from orders from customers of a payment accepting firm that the DPM has independently negotiated with to pay for that firm's order flow, there will be a direct and fair correlation between those members who pay the costs of the marketing program funded by the fee and those who receive the benefits of the program. According to the CBOE, it is important to note that although Market-Maker, DPM, and e-DPM transactions resulting from customer orders from firms that do not accept payment for their orders are not subject to the fee, Exchange Market-Makers, DPMs, and e-DPMs will have no way of identifying prior to execution whether a particular order is from a payment-accepting firm, or from a firm that does not accept payment for their order flow. 8 8 The Exchange has reinstated, in Interpretation and Policy .12 to CBOE Rule 8.7, the Marketing Fee Voting Procedures as a six-month pilot program by which a trading crowd may determine whether or not to participate in the Exchange's marketing fee program and to include e-DPMs into the Marketing Fee Voting Procedures. *See* Securities Exchange Act Release No. 50130 (July 30, 2004), 69 FR 47965 (August 6, 2004) (SR-CBOE-2004-47). 2. Statutory Basis The CBOE believes that because this marketing fee will serve to enhance the competitiveness of the Exchange and its members, this proposal is consistent with and furthers the objectives of the Act, including specifically Section 6(b)(5) thereof, 9 which requires the rules of exchanges to be designed to remove impediments to and perfect the mechanism of a free and open market and a national market system, and Section 11A(a)(1) thereof, 10 which reflects the finding of Congress that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure fair competition among brokers and dealers and among exchange markets. The Exchange also believes that the proposed rule change is consistent with Section 6(b) of the Act, 11 and furthers the objectives of Section 6(b)(4) of the Act 12 in particular, in that it is designed to provide for the equitable allocation of reasonable dues, fees, and other charges among the CBOE's members. 9 15 U.S.C. 78f(b)(5). 10 15 U.S.C. 78k-1(a)(1). 11 15 U.S.C. 78f(b). 12 15 U.S.C. 78f(b)(4). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The CBOE neither solicited nor received written comments with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act 13 and subparagraph
(f)of Rule 19b-4 thereunder. 14 At any time within 60 days after the filing of the proposed rule change, the Commission may summarily abrogate the rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 13 15 U.S.C. 78s(b)(3)(A)(ii). 14 17 CFR 240.19b-4(f). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-CBOE-2004-55 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-CBOE-2004-55. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the filing also will be available for inspection and copying at the principal office of the CBOE. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-CBOE-2004-55 and should be submitted on or before September 14, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 15 15 17 CFR 200.30-3(a)(12). J. Lynn Taylor, Assistant Secretary. [FR Doc. E4-1890 Filed 8-23-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXHANGE COMMISSION [Release No. 34-50209; File No. SR-CBOE-2004-43] Self Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Order Granting Approval to Proposed Rule Change and Amendment No. 1 Thereto To Amend the Exchange's Membership Rules To Accommodate e-DPMs August 18, 2004. On July 12, 2004, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to amend its Chapter III membership rules to accommodate a new category of CBOE market-making participant—electronic Designated Primary Market-Makers (“e-DPMs”). On July 12, 2004, the CBOE filed Amendment No. 1 to the proposed rule change. 3 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* letter from David Doherty, Attorney, Legal Division, CBOE, to Deborah Flynn, Assistant Director, Division of Market Regulation, Commission, dated July 12, 2004 (“Amendment No. 1”). The proposed rule change, as amended, was published for comment in the **Federal Register** on July 19, 2004. 4 The Commission received no comments on the proposal. 4 *See* Securities Exchange Act Release No. 50007 (July 13, 2004), 69 FR 43034. The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange 5 and, in particular, the requirements of Section 6 of the Act 6 and the rules and regulations thereunder. The Commission specifically finds that the proposed rule change, as amended, is consistent with Section 6(b)(5) of the Act 7 in that it is designed to promote just and equitable principles of trade, to remove impediments and to perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. 5 In approving this proposed rule change, as amended, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 6 6 15 U.S.C. 78f. 7 15 U.S.C. 78f(b)(5). In particular, the Commission believes that the CBOE's proposed amendment to CBOE Rule 3.8(a)(ii) to allow a member organization acting as an e-DPM to have one individual be the nominee for multiple memberships that are designated for use in an e-DPM capacity would not be inappropriate given that e-DPMs operate from locations outside of the trading crowds for their applicable option classes, thereby making it possible for a member to act as an nominee on more than one membership. 8 The Commission notes, however, that such individual cannot be the designated nominee for any of the organization's other memberships in any other market making capacity other than that of an e-DPM. 8 The Commission notes that it would not be possible for an in-crowd market participant to act as nominee on more than one membership because such participant would be unable to physically be present in more than one trading crowd. The Commission further believes that the CBOE's proposal to change the reference to “floor functions” in CBOE Rules 3.2, 3.8, and 3.9 to “trading functions” should help to clarify the applicability of these rules to e-DPMs, who would not necessarily have a floor presence. 9 In addition, Commission believes that the proposed amendment to CBOE Rule 3.2 to clarify that a member is deemed to have an authorized “trading function” if the member is approved by the CBOE's Membership Committee to act as a nominee or person registered for an e-DPM organization should help to ensure that e-DPMs, like other Market-Makers and CBOE Floor Brokers, would be required to comply with the CBOE Rule 3.9(g) member orientation and qualification exam requirements. Lastly, the Commission notes that the CBOE's proposed Rule 3.28 requirement that e-DPMs provide the Exchange with a letter of guarantee from a clearing member is similar to ISE Rule 808 and PCX Rule 6.36(a) requirements, previously approved by the Commission. 9 The Commission notes that it is possible for e-DPMs to stream quotes into the Exchange from locations on the trading floor other than the trading crowds where their allocated option classes are traded. In addition, for an 18-month period, e-DPMs are permitted to have no more than one Market-Maker affiliated with the e-DPM to trade on the trading floor in any specific options classes allocated to the e-DPM. CBOE Rule 8.93(vii). It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 10 that the proposed rule change (SR-CBOE-2004-43) and Amendment No. 1 thereto be approved. 10 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 11 11 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-1892 Filed 8-23-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50215; File No. SR-CHX-2004-14] Self-Regulatory Organizations; The Chicago Stock Exchange, Incorporated; Order Granting Approval to Proposed Rule Change Relating to the Handling of Preopening Orders in Nasdaq/NM Securities August 18, 2004. On May 19, 2004, The Chicago Stock Exchange, Incorporated (“CHX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to amend the manner in which it handles preopening orders in Nasdaq/NM securities, to eliminate the distinction in the treatment of orders received at or before 8:20 a.m. and those received after 8:20 a.m. (Central Time) until the opening of trading. The proposed rule change was published for comment in the **Federal Register** on July 14, 2004. 3 The Commission received no comments on the proposal. This order approves the proposed rule change. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 49978 (July 7, 2004), 69 FR 42231. The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange 4 and, in particular, the requirements of Section 6 of the Act 5 and the rules and regulations thereunder. The Commission finds specifically that the proposed rule change is consistent with Section 6(b)(5) of the Act, 6 in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. 4 In approving this proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 5 15 U.S.C. 78f. 6 15 U.S.C. 78f(b)(5) *It is therefore ordered,* pursuant to Section 19(b)(2) of the Act 7 , that the proposed rule change (SR-CHX-2004-14) be, and it hereby is, approved. 7 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 8 8 17 CFR 200.30-3(a)(12). J. Lynn Taylor, Assistant Secretary. [FR Doc. E4-1894 Filed 8-23-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50208; File No. SR-ISE-2004-19] Self-Regulatory Organizations; Order Granting Approval to a Proposed Rule Change and Amendment No. 1 Thereto by the International Securities Exchange, Inc. Relating to the Entry of Electronically Generated Orders August 17, 2004. On May 27, 2004, the International Securities Exchange, Inc. (“ISE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to amend ISE Rule 717(f) to allow Electronic Access Members (“EAMs”) to enter electronically generated and communicated market orders, immediate-or-cancel limit orders, and fill-or-kill limit orders. On June 30, 2004, the Exchange filed Amendment No. 1 to the proposed rule change. 3 The proposed rule change and Amendment No. 1 were published for comment in the **Federal Register** on July 8, 2004. 4 The Commission received no comments on the proposal, as amended. This order approves the proposed rule change, as amended. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* letter from Michael J. Simon, Senior Vice President and General Counsel, ISE, to Nancy Sanow, Assistant Director, Division of Market Regulation, Commission, dated June 29, 2004 (“Amendment No. 1”). 4 *See* Securities Exchange Act Release No. 49956 (July 1, 2004), 69 FR 41320. ISE Rule 717(f) limits the ability of EAMs to enter orders that are generated and communicated electronically. In its amended proposal, the Exchange represented that one purpose of this restriction is to prohibit non-market makers from effectively making markets on the Exchange using automated systems that place and cancel orders in a manner that is similar to quoting. 5 Further, the Exchange represented that, as a general matter, it continues to believe that maintaining the prohibition on electronically generated orders is important to prevent EAMs from acting like market makers without also being subject to the responsibilities of market makers. However, the Exchange represented that it believes that market orders, immediate-or-cancel limit orders, and fill-or-kill limit orders, which are not eligible to rest on the limit order book, do not present the same “market making” potential as resting limit orders. Accordingly, the Exchange proposed to amend ISE Rule 717(f) to permit EAMs to enter electronically generated market orders, immediate-or-cancel limit orders, and fill-or-kill limit orders. 5 *See id.* The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange 6 and, in particular, the requirements of Section 6(b)(5) of the Act, 7 because it is designed to remove impediments to and perfect the mechanism of a free and open market and national market system and, in general, to protect investors and the public interest. Specifically, the Commission finds that the proposed rule change, as amended, is consistent with Section 6(b)(5) of the Act 8 because it should benefit investors by allowing EAMs to electronically generate additional types of orders for their own account and for the accounts of investors whose orders they represent. The Commission believes that this should allow for greater speed and efficiency while continuing to satisfy the Exchange's desire to prevent EAMs from effectively making markets on the Exchange using automated systems that place and cancel orders in a manner that is similar to quoting. 9 6 In approving this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 7 15 U.S.C. 78f(b)(5). 8 *Id.* 9 In addition, the Commission notes that it recently approved a similar proposal by the Philadelphia Stock Exchange, Inc. to lift restrictions on electronically generated orders. *See* Securities Exchange Act Release No. 48648 (October 16, 2003) 68 FR 60762 (October 23, 2003) (approving SR-Phlx-2003-37). *It is therefore ordered,* pursuant to Section 19(b)(2) of the Act, 10 that the proposed rule change (File No. SR-ISE-2004-19), as amended, is approved. 10 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 11 11 17 CFR 200.30-3(a)(12). Margaret H. McFarland, Deputy Secretary. [FR Doc. E4-1891 Filed 8-23-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50218; File No. SR-NASD-2004-002] Self-Regulatory Organizations; Order Approving Proposed Rule Change and Amendment No. 1 Thereto by the National Association of Securities Dealers, Inc. and Notice of Filing and Order Granting Accelerated Approval to Amendment No. 2 Thereto To Require an NASD Market Participant To Provide Written Notice Before Denying Any NASD Member Direct Electronic Access to Its Quote in the ADF August 18, 2004. I. Introduction On January 8, 2004, the National Association of Securities Dealers, Inc. (“NASD”) submitted to the Securities and Exchange Commission (“Commission” or “SEC”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to amend NASD Rule 4300A to require an NASD Market Participant to provide written notice before denying any NASD member direct electronic access to its quote on NASD's Alternative Display Facility (“ADF”). NASD filed Amendment No. 1 to the proposed rule change on February 5, 2004. 3 The proposed rule change and Amendment No. 1 were published for comment in the **Federal Register** on February 24, 2004. 4 The Commission received no comment letters on the proposed rule change and Amendment No. 1. NASD filed Amendment No. 2 to the proposed rule change on July 14, 2004. 5 This order approves the proposed rule change and Amendment No. 1 and issues notice of filing of, and approves on an accelerated basis, Amendment No. 2. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* letter from Barbara Z. Sweeney, Senior Vice President and Corporate Secretary, NASD, to Katherine A. England, Assistant Director, Division of Market Regulation (“Division”), Commission, dated February 4, 2004 (“Amendment No. 1”). 4 *See* Securities Exchange Act Release No. 49252 (February 13, 2004), 69 FR 8505. 5 *See* letter from Patricia M. Albrecht, Assistant General Counsel, NASD, to Katherine A. England, Assistant Director, Division, Commission, dated July 13, 2004 (“Amendment No. 2”). II. Description of the Proposal The ADF is a pilot system that NASD operates for its members that choose to quote or effect trades in Nasdaq securities otherwise than on the Nasdaq Stock Market or an exchange. 6 The Commission conditioned its approval of the SuperMontage facility on NASD's establishment of the ADF. 7 In the SuperMontage proposal, several commenters expressed concern that SuperMontage would become the only execution system through which substantially all displayed trading interest in the over-the-counter markets could be reached. In response to these concerns, NASD agreed to provide an alternative quotation and transaction reporting facility (now known as the ADF) that would, in effect, make participation in SuperMontage voluntary. 8 The ADF permits NASD members to comply with their obligations under Commission and NASD rules (including Rule 11Ac1-1(c)(5) under the Exchange Act 9 and Regulation ATS 10 ) without participating in SuperMontage. NASD's authority to operate the ADF pilot system extends until October 26, 2004. 11 6 *See* Securities Exchange Act Release No. 46249 (July 24, 2002), 67 FR 49821 (July 31, 2002) (approving the ADF pilot). 7 *See* Securities Exchange Act Release No. 43863 (January 19, 2001), 66 FR 8020 (January 26, 2001) (approving SuperMontage). 8 *See* 66 FR at 8024. 9 17 CFR 240.11Ac1-1(c)(5). 10 17 CFR 242.300 *et seq.* 11 *See* Securities Exchange Act Release No. 49131 (January 27, 2004), 69 FR 5229 (February 3, 2004) (extending the ADF pilot). The ADF does not have an order-routing capability. Instead, an NASD Market Participant must provide other NASD Market Participants with direct electronic access to its quote in the ADF. 12 In addition, an NASD Market Participant must provide NASD member broker-dealers that are not NASD Market Participants direct electronic access, if requested, and allow for indirect electronic access to its ADF quote. 13 An NASD Market Participant is prohibited from in any way directly or indirectly influencing or prescribing the prices that its customer broker-dealer may choose to impose for providing indirect access and precluding or discouraging indirect electronic access, including through the imposition of discriminatory pricing or quality of service with regard to a broker-dealer that is providing indirect electronic access. 14 However, an NASD Market Participant that is an electronic communication network (“ECN”) may lawfully deny access to its ADF quote in the limited circumstances where a broker-dealer fails to pay contractually obligated costs to the ECN. 12 *See* NASD Rule 4300A(a)(1). “Direct electronic access” is defined as the ability to deliver an order for execution directly against an individual NASD Market Participant's best bid and offer subject to quote and order access obligations without the need for voice communication, with the equivalent speed, reliability, availability, and cost (as permissible under the federal securities laws, the rules and regulations thereunder, and NASD Rules), as are made available to NASD Market Participant's own customer broker-dealers or other active customers or subscribers. *See* NASD Rule 4300A(d)(2). 13 *See* NASD Rule 4300(a)(2). “Indirect electronic access” is defined as the ability to route an order through customer broker-dealers of an NASD Market Participant that are not affiliates of the NASD Market Participant, for execution against NASD Market Participant's best bid and offer subject to quote and order access obligations, without the need for voice communication, with equivalent speed, reliability, availability, and cost, as are made available to the Market Participant's customer broker-dealer providing the indirect access or other active customers or subscribers. *See* NASD Rule 4300A(d)(3). 14 *See* NASD Rule 4300(a)(2). NASD proposes to amend NASD Rule 4300A to require an NASD Market Participant to provide written notice before denying any NASD member direct electronic access to its ADF quotes. The NASD Market Participant would be required to provide this notice to ADF Market Operations via facsimile, personal delivery, courier, or overnight mail at least 14 calendar days in advance of denying access. The 14-day period would begin on the first business day that ADF Market Operations has receipt of the notice. In Amendment No. 1, NASD stated that, to ensure proper documentation of compliance with this rule, NASD members should maintain evidence of receipt of the notice ( *e.g.* , dated facsimile confirmation, receipt from a courier, *etc* .). ADF Market Operations would then post this notice on the ADF webpage to ensure that members have adequate time to make other routing or access arrangements, as necessary. In Amendment No. 2, NASD added a provision that a notice provided under the proposed rule must be based on the good faith belief of an NASD Market Participant that its denial of access is appropriate and does not violate any NASD rules or the federal securities laws. NASD also added that the proposed notification and publication of an NASD Market Participant's intent to deny access would have no bearing on the merits of any claim between the NASD Market Participant and any affected broker-dealers, nor would it insulate the NASD Market Participant from liability for violations of NASD rules or the federal securities laws, such as Rule 11Ac1-1 under the Act, 15 should it be determined that the denial of access was inappropriate. In Amendment No. 2, NASD stated that, if NASD believes that an NASD Market Participant has improperly denied a broker-dealer access to its quotes, the NASD Market Participant would not have met the terms of Rule 4300A and therefore would be in violation of that provision and would not be permitted to continue quoting on the ADF. Amendment No. 2 also clarified that ECNs are the only NASD Market Participants that may lawfully deny access to their quotes, and that an ECN may do so only in the limited circumstances where a broker-dealer fails to pay contractually obligated costs. 15 17 CFR 240.11Ac1-1. Finally, in Amendment No. 2, NASD revised the proposal to remove the requirement that an NASD Market Participant provide notice with respect to a denial of *indirect* access. An NASD Market Participant is not permitted to look through its order flow to identify or discriminate against a source of the order flow via indirect access; therefore, the revised proposal no longer contemplates provision of notice for denials of indirect access. The text of the proposed rule change, as amended by Amendment Nos. 1 and 2, appears below. Proposed new language is in italics. Proposed deletions are in brackets. 4300A. Quote and Order Access Requirements
(a)To ensure that NASD Market Participants comply with their quote and order access obligations as defined below, for each security in which they elect to display a bid and offer (for Registered Reporting ADF Market Makers), or a bid and/or offer (for Registered Reporting ADF ECNs), in the Alternative Display Facility, NASD Market Participants must:
(1)through
(2)No change. *(3) Provide at least 14 calendar days advance written notice, via facsimile, personal delivery, courier or overnight mail, to NASD Alternative Display Facility Operations before denying any NASD member direct electronic access as defined below. An ECN is the only Market Participant that may lawfully deny access to its quotes, and an ECN may only do so in the limited circumstance where a broker-dealer fails to pay contractually obligated costs for access to the ECN's quotes. The notice provided hereunder must be based on the good faith belief of a Market Participant that such denial of access is appropriate and does not violate any of the Market Participant's obligations under NASD rules or the federal securities laws. Further, any notification or publication of a Market Participant's intent to deny access will have no bearing on the merits of any claim between the Market Participant and any affected broker-dealer, nor will it insulate the Market Participant from liability for violations of NASD rules or the federal securities laws, such as SEC Rule 11Ac1-1. The 14-day period begins on the first business day that NASD Alternative Display Facility Operations has receipt of the notice.* *(4)* [3] Share equally the costs of providing to each other the direct electronic access required pursuant to paragraph (a)(1), unless those Market Participants agree upon another cost-sharing arrangement.
(b)through
(f)No change. III. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning Amendment No. 2, including whether it is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-NASD-2004-002 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-NASD-2004-002. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal office of NASD. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASD-2004-002 and should be submitted on or before September 14, 2004. IV. Discussion After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the Act and the rules and regulations thereunder applicable to a national securities association, 16 particularly section 15A(b)(6) of the Act. 17 Section 15A(b)(6) requires, among other things, that a national securities association's rules be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. 16 In approving this proposed rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 17 15 U.S.C. 78 *o* -3(b)(6). The proposed rule change should allow NASD to provide its members advance notice of when an NASD Market Participant intends to deny an NASD member access to its quotes so as to minimize any potential disruptions in the ADF market. NASD has indicated that an NASD Market Participant recently denied an NASD member access to the NASD Market Participant's quotes for allegedly failing to pay contractually obligated costs. NASD stated that this denial of access disrupted trading not only for the NASD member that was denied access, but also for other NASD members that indirectly accessed the NASD Market Participant's quote through the NASD member that was denied direct access. NASD believes that, although there were other means in place by which NASD members could have accessed the NASD Market Participant's quotes, the absence of any advance notice of the denial of access caused confusion in the marketplace as members considered how best to access the NASD Market Participant's quotes by other means. The Commission believes that the proposed rule change should help avert such disruption by providing NASD members advance notice of potential denials of direct access, thereby affording them an opportunity to make other routing or access arrangements. The Commission further believes that it is reasonable and consistent with the Act for the new provisions of NASD Rule 4300A(a)(3) to state that any notification or publication of an NASD Market Participant's intent to deny access will have no bearing on the merits of any claim between the NASD Market Participant and any affected broker-dealer, nor will it insulate the NASD Market Participant from potential liability for violations of NASD rules or the federal securities laws. The Commission believes that the mere act of providing notice of a denial of access pursuant to this rule change should not insulate an NASD Market Participant from liability if that denial of access were illegal. The Commission finds good cause for accelerating approval of Amendment No. 2 prior to the thirtieth day after publication in the **Federal Register** . The Commission notes that the proposed rule change and Amendment No. 1 thereto were noticed for the full comment period and that no comments were received. Amendment No. 2 clarifies the proposal and provides that compliance with the proposed rule would not bear on the merits of any claim between an NASD Market Participant and any affected broker-dealer, nor would it shield an NASD Market Participant from liability for a violation of NASD rules or federal securities laws. Furthermore, accelerated approval should permit NASD to promptly begin to receive notices for any potential denials of access, thereby enabling NASD to investigate any denial of access while providing notice of such denials to NASD members to minimize any potential disruptions in the ADF market that could result. For these reasons, the Commission finds good cause exists, consistent with sections 15A(b) 18 and 19(b)(2) of the Act, 19 to approve Amendment No. 2 on an accelerated basis. 18 15 U.S.C. 78 *o* -3(b). 19 15 U.S.C. 78s(b)(2). V. Conclusion *It is therefore ordered,* pursuant to section 19(b)(2) of the Act, 20 that the proposed rule change (SR-NASD-2004-002) and Amendment No. 1 is hereby approved, and that Amendment No. 2 is hereby approved on an accelerated basis. 20 *Id* . For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 21 21 17 CFR 200.30-3(a)(12). J. Lynn Taylor, Assistant Secretary. [FR Doc. E4-1888 Filed 8-23-04; 8:45 am] BILLING CODE 8010-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Docket No. FAA-2004-18925] Airport Improvement Program Grant Assurances; Proposed Modifications and Opportunity To Comment AGENCY: Federal Aviation Administration (FAA), U.S. DOT. ACTION: Notice of modification of Airport Improvement Program grant assurances and of the opportunity to comment. SUMMARY: The FAA proposes to modify the standard grant assurances that are required of a sponsor before receiving a grant under the Airport Improvement Program (AIP). Pursuant to applicable law, the Secretary of Transportation is required to provide notice in the **Federal Register** and to provide an opportunity for public comment on proposals to modify the assurances and on proposals for additional AIP assurances. Modifications to the AIP grant assurances are primarily being made to remove grant assurances that govern the application and implementation of an AIP project that expires with the completion of the project and place them as grant agreement conditions or as certifications as part of the application process. Minor technical edits for clarification of certain assurances are also being proposed. Also, a new assurance is being proposed regarding the statutory requirement for Disadvantaged Business Enterprise
(DBE)participation in airport concessions. Previously this requirement was incorporated by reference. Finally, two new assurances are being proposed as required by Vision 100—Century of Aviation Reauthorization Act, (Public Law (P.L.) 108-176). The FAA also believes that it is appropriate to review and revalidate the need for all of the assurances given the dynamic nature of airport operations, needs and economics. Although the assurances are generally verbatim restatements of current law, FAA believes it would be most helpful for the public to assist FAA in this review by soliciting comments about all of the assurances. Most assurances, if the need for deletion or change is justified, will require statutory change. FAA may use the public comments to justify future requests by the agency for statutory changes. DATES: Comments must be submitted on or before 30 calendar days following publication in the **Federal Register** . Any necessary or appropriate revision to the assurances resulting from the comments received will be adopted as of the date of a subsequent publication in the **Federal Register** . Finally, comments may be provided on the project-related assurances and certifications FAA is proposing to convert into grant conditions or certificates as listed in the table below. FAA anticipated the wording of the future grant conditions/certifications, which can be found at *http://www.faa.gov/arp/pdf/assrnap.pdf* , will be unchanged except to the extent that some minor changes may be made due to the new context for these conditions/certifications. ADDRESSES: Comments may be delivered or mailed to the FAA, Airports Financial Assistance Division, APP-500, Attn: Mr. Kendall Ball, Room 619, 800 Independence Ave., SW., Washington, DC 20591. FOR FURTHER INFORMATION CONTACT: Mr. Kendall Ball, Airport Improvement Program Branch, APP 520, Airports Financial Assistance Division, Room 619, FAA, 800 Independence Avenue, SW., Washington, DC 20591, Telephone
(202)267-7436. SUPPLEMENTARY INFORMATION: The Secretary must receive certain assurances from a sponsor (applicant) seeking financial assistance for airport planning, airport development, noise compatibility planning or noise mitigation under Title 49, U.S.C., as amended. These assurances are submitted as part of a sponsor's application for Federal assistance and are incorporated into all grant agreements. As need dictates, these assurances are modified to reflect new Federal requirements. Notice of such proposed modifications is published in the **Federal Register** , and an opportunity for public comment is provided. The current assurances were published on February 3, 1988, at 53 FR 3104 and amended on September 6, 1988, at 53 FR 34361; on August 29, 1989, at 54 FR 35748; on June 10, 1994 at 59 FR 30076; on January 4, 1995, at 60 FR 521; on June 2, 1997, at 62 FR 29761; and on August 18, 1999, at 64 FR 45008. Discussion of Modifications In the past, FAA used four separate sets of standard assurances: Airport Sponsors (owners/operators), Planning Agency Sponsors, Non-Airport Sponsors Undertaking Noise Compatibility Program Projects (hereinafter referred to as Non-Airport Sponsor Assurances), and State Assurances (for the Block Grant Program). Moreover, we included requirements for carrying out AIP-funded projects as general grant assurances. From time to time, this approach has led to confusion over the application of these requirements to projects completed without AIP support. FAA is modifying the assurances currently in effect to incorporate the changes noted below. To simplify the discussion, the modifications are shown in a table format for comparison with existing assurances, which can be found at *http://www.faa.gov/arp/pdf/assrnap.pdf.* The disposition of each assurance will be shown as:
(a)Retention as an assurance with its proposed new assurance number;
(b)conversion to a certification to be included with the application for Federal Assistance (Standard Form 424); or
(c)conversion to a grant condition. Project related assurances will be converted to certifications or grant conditions. This change in approach will clarify those grant requirements that are both project specific and expire upon the completion of the project. This notice is not intended to change the manner in which grant agreement obligations are enforced. For the most part, assurances that are proposed for retention are incorporated without change, however, there are some instances of wording modifications for clarity that are noted in the table. As a result of this proposed change, the assurances for Planning Agency Sponsors and those for Non-Airport Undertaking Noise Compatibility Program Projects will be eliminated and incorporated either as grant application certifications or grant conditions since all of the assurances are effective only for the duration of the projects. In addition, two new assurances are added at the end as a result of the recently enacted Public Law 108-176 and another assurance was added in full text that was previously incorporated by reference. Finally, old assurance number 31 (proposed new assurance c. 15) is changed to reflect section 164 of Public Law 108-176, which permitted expanded use of revenue from sale of land purchased for noise compatibility purposes. Assurance number Title Disposition A. General Retained as A. General, with minor addition of block grant states in par. 1. B. Duration and Applicability Retained as B. Duration and Applicability with elimination of par. 3. C. 1. General Federal Requirements Conversion to grant condition, new assurance for the DBE concession requirement. 2. Responsibility and Authority of the Sponsor Conversion to application certification. 3. Sponsor Fund Availability Conversion to application certification. 4. Good Title Conversion to application certification; clarification added to assurance c. 1 (see old assurance no. 5 immediately below). 5. Preserving Rights and Powers Retained as assurance c. 1; clarifying change in subparagraph
(b)to include reference to Good Title; delete provisions related to nonairport local governments' receiving funding for noise compatibility projects under former 5(c). 6. Consistency with Local Plans Conversion to application certification. 7. Consideration of Local Interest Conversion to application certification. 8. Consultation with Users Conversion to application certification. 9. Public Hearings Conversion to application certification. 10. Air and Water quality Standards Eliminated by P.L 108-176. 11. Pavement Preventive Maintenance Retained as assurance c.2. 12. Terminal Development Prerequisites Conversion to application certification. 13. Accounting System, Audit, and Record Keeping Requirements Conversion to grant condition. 14. Minimum Wage Rates Conversion to grant condition. 15. Veteran's Preference Conversion to grant condition. 16. Conformity to Plans and Specifications Conversion to grant condition. 17. Construction Inspection and Approval Conversion to grant condition. 18. Planning Projects Conversion to grant condition. 19. Operation and Maintenance Retained as assurance c.3. 20. Hazard Removal and Mitigation Retained as assurance c.4. 21. Compatible Land Use Retained as assurance c.5. 22. Economic Nondiscrimination Retained as assurance c.6. with clarifying language. 23. Exclusive Rights Retained as assurance c.7 with clarifying language. 24. Fee and Rental Structure Retitled and retained as assurance c.8. 25. Airport Revenues Retitled and retained as assurance c.9. 26. Reports and Inspections Par. (a), (c), and
(d)retained as assurance c.10; par.
(b)revised. 27. Use of Government Aircraft Retained as assurance c.11. 28. Land for Federal Facilities Retained as assurance c.12. 29. Airport Layout Plan Retained as assurance c.13. 30. Civil Rights Retained as assurance c.14. 31. Disposal of Land Retained as assurance c.15, wording changed in accordance with P.L. 108-176. 32. Engineering and Design Services Conversion to grant condition. 33. Foreign Market Restrictions Conversion to grant condition. 34. Policies, Standards, and Specifications Conversion to grant condition. 35. Relocation and Real Property Acquisition Conversion to grant condition. 36. Access by Intercity Buses Retained as assurance c. 16. 37. Disadvantaged Business Enterprises Retained as assurance c. 19. New Assurance Hangar Construction New assurance c. 17. New Assurance Competitive Access New assurance c.18. New Assurance Participation by Disadvantaged Businesses in Airport Concessions (previously incorporated by reference) Incorporated as full text in assurance c. 19., as subparagraph (b). In summary, of the 39 provisions of the existing airport sponsor assurances, 19 will be retained as assurances, 12 will be converted to grant conditions and 8 will be converted to application certifications. One assurance was eliminated by Public Law 108-176, and three additional assurances are proposed (two as a result of Public Law 108-176 and one due to the need to provide full text for an assurance that was previously incorporated by reference.) Proposed Assurances *The assurances being proposed under this notice are as follows:* Airport Sponsors A. General 1. These assurances shall be complied with in the performance of grant agreements for airport development, airport planning, and noise compatibility program grants for airport sponsors and block grant states. 2. These assurances are required to be submitted as part of the project application by sponsors requesting funds under the provisions of Title 49, United States Code (U.S.C.), subtitle VII, as amended. As used herein, the term “public agency sponsor” means a public agency with control of a public-use airport; the term “private sponsor” means a private owner of a public-use airport; and the term “sponsor” includes both public agency sponsors and private sponsors. 3. Upon acceptance of the grant offer by the sponsor, these assurances are incorporated into, and become part of, the grant agreement. B. Duration and Applicability 1. Airport Development or Noise Compatibility Program Projects Undertaken by a Public Agency Sponsor The terms, conditions and assurances of the grant agreement shall remain in full force and effect throughout the useful life of the facilities developed or equipment acquired for an airport development or noise compatibility program project, or throughout the useful life of the project items installed within a facility under a noise compatibility program project, but in any event not to exceed twenty
(20)years from the date of acceptance of a grant offer of Federal funds for the project. However, there shall be no limit on the duration of the assurances regarding Exclusive Rights and Airport Revenue so long as the airport is used as an airport. There shall be no limit on the duration of the terms, conditions, and assurances with respect to real property acquired with federal funds. Furthermore, the duration of the Civil Rights assurance shall be specified in the assurances. 2. Airport Development or Noise Compatibility Projects Undertaken by a Private Sponsor The preceding paragraph 1 also applies to a private sponsor except that the useful life of project items installed within a facility or the useful life of the facilities developed or equipment acquired under an airport development or noise compatibility program project shall be no less than ten
(10)years from the date of acceptance of Federal aid for the project. C. Sponsor Assurances The sponsor hereby assures and certifies, with respect to this grant that: 1. Preserving Rights and Powers
(a)It will not take or permit any action that would operate to deprive it of any of the rights and powers necessary to perform any or all of the terms, conditions, and assurances in the grant agreement without the written approval of the Secretary, and will act promptly to acquire, extinguish, or modify any outstanding rights or claims of right of others that would interfere with such performance by the sponsor. This shall be done in a manner acceptable to the Secretary.
(b)It will maintain good title and not sell, lease, encumber, or otherwise transfer or dispose of any part of its title or other interests in the property shown on Exhibit A to this application or, for a noise compatibility program project, that portion of the property upon which Federal funds have been expended, for the duration of the terms, conditions, and assurances in the grant agreement without approval by the Secretary. If the transferee is found by the Secretary to be eligible under Title 49, U.S.C., to assume the obligations of the grant agreement and to have the power, authority, and financial resources to carry out all such obligations, the sponsor shall insert in the contract or document transferring or disposing of the sponsor's interest, and make binding upon the transferee, all of the terms, conditions, and assurances contained in this grant agreement.
(c)For noise compatibility program projects to be carried out on privately owned property, it will enter into an agreement with the property owner that includes provisions specified by the Secretary. It will take steps to enforce this agreement against the property owner whenever there is substantial non-compliance with the terms of the agreement.
(d)If the sponsor is a private sponsor, it will take steps satisfactory to the Secretary to ensure that the airport will continue to function as a public-use airport in accordance with these assurances for the duration of these assurances.
(e)If an arrangement is made for management and operation of the airport by any agency or person other than the sponsor or an employee of the sponsor, the sponsor will reserve sufficient rights and authority to ensure that the airport will be operated and maintained in accordance with Title 49 U.S.C., the regulations and the terms, conditions and assurances in the grant agreement, and shall ensure that such arrangement also requires compliance therewith. 2. Pavement Preventive Maintenance With respect to a project approved after January 1, 1995, for the replacement or reconstruction of pavement at the airport, it assures or certifies that it has implemented an effective airport pavement maintenance-management program and it assures that it will use such program for the useful life of any pavement constructed, reconstructed or repaired with Federal financial assistance at the airport. It will provide such reports on pavement condition and pavement management programs as the Secretary determines may be useful. 3. Operation and Maintenance
(a)The airport and all facilities which are necessary to serve the aeronautical users of the airport, other than facilities owned or controlled by the United States, shall be operated at all times in a safe and serviceable condition and in accordance with the minimum standards as may be required or prescribed by applicable Federal, state and local agencies for maintenance and operation. It will not cause or permit any activity or action thereon which would interfere with its use for airport purposes. It will suitably operate and maintain the airport and all facilities thereon or connected therewith, with due regard to climatic and flood conditions. Any proposal to close the airport temporarily for non-aeronautical purposes must first be approved by the Secretary. In furtherance of this assurance, the sponsor will have in effect arrangements for: 1. Operating the airport's aeronautical facilities whenever required; 2. Promptly marking and lighting hazards resulting from airport conditions, including temporary conditions; and 3. Promptly notifying airmen of any condition affecting aeronautical use of the airport. Nothing contained herein shall be construed to require that the airport be operated for aeronautical use during temporary periods when snow, flood, or other climatic conditions interfere with such operation and maintenance, repair, restoration, or replacement of any structure or facility which is substantially damaged or destroyed due to an Act of God or other condition or circumstance beyond the control of the sponsor.
(b)It will suitably operate and maintain noise compatibility program items that it owns or controls upon which Federal funds have been expended. 4. Hazard Removal and Mitigation It will take appropriate action to assure that such terminal airspace as is required to protect instrument and visual operations to the airport (including established minimum flight altitudes) will be adequately cleared and protected by removing, lowering, relocating, marking, lighting, or otherwise mitigating existing airport hazards, and by preventing the establishment or creation of future airport hazards. 5. Compatible Land Use It will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft. In addition, if the project is for implementation of noise compatibility program measures upon which Federal funds have been expended, it will not cause or permit any change in land use, within its jurisdiction, that will reduce its compatibility with respect to the airport. 6. Economic Nondiscrimination
(a)It will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.
(b)In any agreement, contract, lease, or other arrangement under which the airport sponsor grants a right or privilege to conduct or to engage in activity providing aeronautical services to the public at the airport, the sponsor will insert and enforce provisions requiring the contractor to: 1. Furnish said services on a reasonable, and not unjustly discriminatory, basis to all users thereof, and 2. Charge reasonable, and not unjustly discriminatory, prices for each unit of aeronautical service, provided that the service provider may be allowed to make reasonable and uniformly applicable price reductions for volume purchasers. Discounts may be offered on a basis other than volume provided the basis is reasonable and justified.
(c)Each fixed-base operator at the airport shall be subject to the same rates, fees, rentals, and other charges as are uniformly applicable to all other fixed-base operators making the same or similar uses of such airport and using the same or similar facilities.
(d)Each air carrier using such airport shall have the right to service its own aircraft or to use any commercial aeronautical service provider authorized or permitted by the airport sponsor to provide aeronautical services.
(e)Each air carrier using such airport (whether as a tenant, nontenant, or subtenant of another air carrier tenant) shall be subject to such nondiscriminatory and substantially comparable rules, regulations, conditions, rates, fees, rentals, and other charges with respect to facilities directly and substantially related to providing air transportation as are applicable to all such air carriers making similar use of such airport and using similar facilities, subject to reasonable classifications such as tenants or nontenants and signatory carriers or non-signatory carriers. Classification or status as tenant or signatory shall not be unreasonably withheld by any airport provided an air carrier assumes obligations substantially similar to those obligations already imposed on air carriers in such classification or status.
(f)It will not exercise or grant any right or privilege that operates to prevent any person, firm, or corporation operating its own aircraft on the airport from performing any services on its own aircraft, including, but not limited to, maintenance, repair, and refueling, provided that such service(s) are performed by the aircraft operators own employees.
(g)If the airport sponsor elects to provide aeronautical services to the public, it shall do so only on the same terms as are uniformly applicable to other commercial aeronautical service providers authorized by the airport sponsor to provide such services at the airport. This assurance is not intended to prevent the airport sponsor from invoking its propriety exclusive right to be the sole provider of a given aeronautical service.
(h)The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport.
(i)The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public. 7. Exclusive Rights It will permit no exclusive right for the use of the airport by any person providing, or intending to provide, aeronautical services to the public. For purposes of this paragraph, providing services at an airport by a single fixed-base operator shall not be construed as an exclusive right if both of the following apply:
(a)It would be unreasonably costly, burdensome, or impractical for more than one fixed-base operator to provide such service(s), and
(b)Allowing more than one fixed-base operator to provide such service(s) would require the reduction of space currently leased pursuant to an existing agreement between such single fixed-based operator and such airport. It further agrees that it will not, either directly or indirectly, grant or permit any person, firm, or corporation, the exclusive right at the airport to conduct any aeronautical activities including, but not limited to, charter flights, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales and services, sale of aviation petroleum products whether or not conducted in conjunction with other aeronautical activity, repair and maintenance of aircraft, sale of aircraft parts, and any other activities that, because of their direct relationship to the operation of aircraft, can be regarded as an aeronautical activity, and that it will terminate any exclusive right to conduct an aeronautical activity now existing at such an airport before the grant of any assistance under Title 49, U.S.C. 8. Airport Revenue Generation It will maintain a fee and rental structure for airport revenue generation for the facilities and services at the airport which will make the airport as self-sustaining as possible under the circumstances existing at the particular airport, taking into account such factors as the volume of traffic and economy of collection. Except for facilities intended to be constructed for revenue production or the real property upon which such facilities are constructed, no part of the Federal share for an airport development project or an airport planning or noise compatibility project for which a grant is made under Title 49, U.S.C., the Airport and Airway Improvement Act of 1982, the Federal Airport Act or the Airport and Airway Development Act of 1970 shall be included in the rate base in establishing fees, rates, and charges for users of that airport. 9. Airport Revenue Use
(a)All revenues generated by the airport and any local taxes on aviation fuel established after December 30, 1987, will be expended by it for the capital or operating costs of the airport; the local airport system; or other local facilities that are owned or operated by the owner or operator of the airport and which are directly and substantially related to the actual air transportation of passengers or property; or for noise mitigation purposes on or off the airport. However, if covenants or assurances in debt obligations issued before September 3, 1982, by the owner or operator of the airport, or provisions enacted before September 3, 1982, in governing statutes controlling the owner or operator's financing provide for the use of the revenues from any of the airport owner or operator's facilities, including the airport, to support not only the airport but also the airport owner or operator's general debt obligations or other facilities, then this limitation on the use of all revenues generated by the airport (and, in the case of a public airport, local taxes on aviation fuel) shall not apply.
(b)As part of the annual audit required under the Single Audit Act of 1984, the sponsor will direct that the audit will review, and the resulting audit report will provide an opinion concerning, the use of airport revenue and taxes in paragraph (a), and indicating whether funds paid or transferred to the owner or operator are paid or transferred in a manner consistent with Title 49 U.S.C. and any other applicable provision of law, including any regulation promulgated by the Secretary or Administrator.
(c)Civil penalties or other sanctions will be imposed for violation of this assurance in accordance with the provisions of Section 471207 of Title 49, U.S.C. 10. Reports and Inspections It will:
(a)Submit to the Secretary such annual or special financial and operations reports as the Secretary may reasonably request and make such reports available to the public; make available to the public at reasonable times and places a report of the airport budget in a format prescribed by the Secretary;
(b)On request by an authorized agent of the Secretary, make available for inspection records, documents, deeds, agreements, regulations, cost allocation plans, budgets and other instruments of the airport and sponsor affecting airport development projects and uses of airport revenues.
(c)For noise compatibility program projects, make records and documents relating to the project and continued compliance with the terms, conditions, and assurances of the grant agreement including deeds, leases, agreements, regulations, and other instruments, available for inspection by any duly authorized agent of the Secretary upon reasonable request.
(d)In a format and time prescribed by the Secretary, provide to the Secretary and make available to the public following each of its fiscal years, an annual report listing in detail: 1. All amounts paid by the airport to any other unit of government and the purposes for which each such payment was made; and 2. All services and property by the airport to other units of government and the amount of compensation received for provision of each such service and property. 11. Use by Government Aircraft It will make available all of the facilities of the airport developed with Federal financial assistance and all those usable for landing and takeoff of aircraft to the United States for use by Government aircraft in common with other aircraft at all times without charge, except, if the use by Government aircraft is substantial, charge may be made for a reasonable share, proportional to such use, for the cost of operating and maintaining the facilities used. Unless otherwise determined by the Secretary, or otherwise agreed to by the sponsor and the using agency, substantial use of an airport by Government aircraft will be considered to exist when operations of such aircraft are in excess of those which, in the opinion of the Secretary, would unduly interfere with use of the landing areas by other authorized aircraft, or during any calendar month that:
(a)Five
(5)or more Government aircraft are regulatory based at the airport or on land adjacent thereto; or
(b)The total number of movements (counting each landing as a movement) of Government aircraft is 300 or more, or the gross accumulative weight of Government aircraft using the airport (the total movement of Governmental aircraft multiplied by gross weights of such aircraft) is in excess of five million pounds. 12. Land for Federal Facilities It will furnish without cost to the Federal Government for use in conjunction with any air traffic control or air navigation activities, or weather-reporting and communication activities related to air traffic control, any areas of land or water, or estate therein, or rights in buildings of the sponsor as the Secretary considers necessary or desirable for construction, operation, and maintenance at Federal expense of space or facilities for such purposes. Such areas, or any portion thereof, will be made available as provided herein within four months after receipt of a written request from the Secretary. 13. Airport Layout Plan
(a)It will keep up to date at all times an airport layout plan of the airport showing
(1)Boundaries of the airport and all proposed additions thereto, together with the boundaries of all office areas owned or controlled by the sponsor for airport purposes and proposed additions thereto;
(2)the location and nature of all existing and proposed airport facilities and structures (such as runways, taxiways, aprons, terminal buildings, hangars and roads), including all proposed extensions and reductions of existing airport facilities; and
(3)the location of all existing and proposed non-aviation areas and of all existing improvements thereon. Such airport layout plans and each amendment, revision ,or modification thereof, shall be subject to the approval of the Secretary which approval shall be evidenced by the signature of a duly authorized representative of the Secretary on the face of the airport layout plan. The sponsor will not make or permit any changes or alterations in the airport or any of its facilities that are not in conformity with the airport layout plan, as approved by the Secretary, and that might, in the opinion of the Secretary, adversely affect the safety, utility, or efficiency of the airport.
(b)If a change or alteration in the airport or the facilities is made that the Secretary determines adversely affects the safety, utility, or efficiency of any federally owned, leased, or funded property on or off the airport and that is not in conformity with the airport layout plan as approved by the Secretary, the owner or operator will, if requested, by the Secretary
(1)Eliminate such adverse effect in a manner approved by the Secretary; or
(2)bear all costs of relocating such property (or replacement thereof) to a site acceptable to the Secretary and all costs of restoring such property (or replacement thereof) to the level of safety, utility, efficiency, and cost of operation existing before the unapproved change in the airport or its facilities. 14. Civil Rights It will comply with such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from funds received from this grant. This assurance obligates the sponsor for the period during which Federal financial assistance is extended to the program, except where Federal financial assistance is to provide, or is in the form of personal property or real property or interest therein or structures or improvements thereon in which case the assurance obligates the sponsor or any transferee for the longer of the following periods:
(a)The period during which the property is used for a purpose for which Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits, or
(b)the period during which the sponsor retains ownership or possession of the property. 15. Disposal of Land
(a)For land purchased under a grant for airport noise compatibility purposes, it will dispose of the land when the land is no longer needed for such purposes at fair market value at the earliest practicable time. That portion of the proceeds of such disposition which is proportionate to the United States' share of acquisition of such land will, at the discretion of the Secretary,
(1)Be paid to the Secretary for deposit in the Trust Fund, or
(2)be reinvested in an approved noise compatibility project, as prescribed by the Secretary, including the purchase of nonresidential buildings or property in the vicinity of residential buildings or property previously purchased by the airport as part of a noise compatibility program.
(b)For land purchased under a grant for airport development purposes (other than noise compatibility), it will, when the land is no longer needed for airport purposes, dispose of such land at fair market value or make available to the Secretary an amount equal to the United States' proportionate share of the fair market value of the land. That portion of the proceeds of such disposition which is proportionate to the United States' share of the cost of acquisition of such land will,
(a)Upon application to the Secretary, be reinvested in another eligible airport improvement project or projects approved by the Secretary at that airport or within the national airport system, or
(b)be paid to the Secretary for deposit in the Trust Fund if no eligible project exists.
(c)Land shall be considered to be needed for airport purposes under this assurance if
(a)It may be needed for aeronautical purposes (including runway protection zones) or serve as noise buffer land, and
(b)the revenue from interim uses of such land contributes to the financial self-sufficiency of the airport. Further, land purchased with a grant received by an airport operator or owner before December 31, 1987, will be considered to be needed for airport purposes if the Secretary or Federal agency making such grant before December 31, 1987, was notified by the operator or owner of the uses of such land, did not object to such use, and the land continues to be used for that purpose, such use having commenced no later than December 15, 1989.
(d)Disposition of such land under (a), (b), or
(c)will be subject to the retention or reservation of any interest or right therein necessary to ensure that such land will only be used for purposes which are compatible with noise levels and safety associated with operation of the airport. 16. Access by Intercity Buses The airport owner or operator will permit, to the maximum extent practicable, intercity buses or other modes of transportation to have access to the airport; however, it has no obligation to fund special facilities for intercity buses or for other modes of transportation. 17. Hangar Construction If the airport owner or operator and a person who owns an aircraft agree that hangar is to be constructed at the airport for the aircraft at the aircraft owner's expense, the airport owner or operator will grant to the aircraft owner a long-term lease for the hangar that is subject to such terms and conditions on the hangar as the airport owner or operator may impose. 18. Competitive Access
(a)If the airport owner or operator of a medium or large hub airport (as defined in section 47102 of title 49, U.S.C.) has been unable to accommodate one or more requests by an air carrier for access to gates or other facilities at that airport in order to allow the air carrier to provide service to the airport or to expand service at the airport, the airport owner or operator shall transmit a report to the Secretary that— 1. Describes the requests; 2. Provides an explanation as to why the requests could not be accommodated; and 3. Provides a time frame within which, if any, the airport will be able to accommodate the requests.
(b)Such report shall be due on either February 1 or August 1 of each year if the airport has been unable to accommodate the request(s) in the six-month period prior to the applicable due date. 19. Disadvantages Business Enterprise
(a)The recipient shall not discriminate on the basis of race, color, national origin or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure non discrimination in the award and administration of DOT-assisted contracts. The recipient's DBE program, as required by 49 CFR Part 26, and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1936 (31 U.S.C. 3801).
(b)The airport owner or operator will take necessary action to ensure, to the maximum extent practicable, that at least 10 percent of all businesses at the airport selling consumer products or providing consumer services to the public are small business concerns (as defined by regulations of the Secretary) owned and controlled by a socially and economically disadvantaged individual (as defined in section 47113(a) of title 49, U.S.C.) or qualified HUBZone small business concerns (as defend in section 3(p) of the Small Business Act). In taking this action, the airport owner or operator will be subject to the requirements of 49 CFR Part 23 or subsequent regulations issued by the Secretary to implement section 47107(e) of Title 49, U.S.C. These proposed assurances will be issued pursuant to the authority of title 49, U.S.C. Upon acceptance of the Airport Improvement Program
(AIP)grant by an airport sponsor, the assurances become a contractual obligation between the airport sponsor and the Federal government. Dated: Issued in Washington, DC, on August 13, 2004. Dennis E. Roberts, Director, Office of Airport Planning and Programming. [FR Doc. 04-19378 Filed 8-23-04; 8:45 am]
Connectionstraces to 9
7 references not yet in our index
  • 15 USC 78
  • 17 CFR 240.12
  • 17 CFR 240.11
  • 17 CFR 240.19
  • Pub. L. 108-176
  • 49 CFR 26
  • 49 CFR 23
Citation graph
cites case law
Notices
Notice of modification of Airport Improvement Program grant assurances and of the opportunity to comment
C.F.R.§ 200.30-3
U.S.C.§ 78k–1
U.S.C.§ 552
U.S.C.§ 78s
U.S.C.§ 78c
U.S.C.§ 78f
C.F.R.§ 242.300
U.S.C.§ 1001
U.S.C.§ 3801
Cite15 USC 78
Cite17 CFR 240.12
Cite17 CFR 240.11
Cites 16 · showing 12Cited by 0 across 0 sources
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