Rules and Regulations. Notice

Agency: Food and Drug Administration, HHS
Action: Notice
Citation: FR Doc. 07-324 · Docket No. 2007D-0017

Summary

The Food and Drug Administration (FDA) is announcing the availability of a document entitled “Guidance for Industry: Certain Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps) Recovered From Donors Who Were Tested for Communicable Diseases Using Pooled Specimens or Diagnostic Tests” dated January 2007. The guidance document provides establishments that make HCT/P donor eligibility determinations with recommendations concerning the donor eligibility requirements contained in 21 CFR part 1271, subpart C, which became effective on May 25, 2005. The guidance applies only to certain HCT/Ps that were not regulated as HCT/Ps before May 25, 2005, and that were recovered from donors beginning on or after the May 25, 2005, and within 30 days of the date of publication of this document in the Federal Register . This guidance has an immediate implementation date because FDA has determined that prior public participation is not feasible or appropriate. In certain cases, donor retesting needs to be initiated quickly, and the availability of certain HCT/Ps may be critical to their intended recipients.

Dates

Submit written or electronic comments on agency guidances at any time.

Supplementary Information

I. Background FDA is announcing the availability of a document entitled “Guidance for Industry: Certain Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps) Recovered From Donors Who Were Tested for Communicable Diseases Using Pooled Specimens or Diagnostic Tests” dated January 2007. The guidance document provides establishments that make HCT/P donor eligibility determinations with recommendations concerning the donor eligibility requirements under part 1271 (21 CFR part 1271), subpart C, when donors of certain HCT/Ps were tested for communicable diseases using pooled specimens or diagnostic tests. The effective date of the regulations contained in part 1271, subpart C, was May 25, 2005 (69 FR 29785, May 25, 2004). The guidance is applicable to certain HCT/Ps that were not regulated as HCT/Ps before May 25, 2005, and that were recovered from donors on or after May 25, 2005, and within 30 days of the date of publication of this document in the Federal Register . FDA has determined that donor retesting, in certain cases, needs to be conducted in a timely manner in order to be feasible, and the availability of certain HCT/Ps may be critical to their intended recipients. The guidance is being issued consistent with FDA's good guidance practices regulation § 10.115 (21 CFR 10.115). The guidance represents FDA's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations. II. Paperwork Reduction Act of 1995 This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 1271, subpart C, have been approved under OMB control number 0910-0543; the collections of information in part 1271, subpart D, and Form FDA-3486 have been approved under OMB control number 0910-0559. III. Comments FDA is soliciting public comment, but is implementing this guidance immediately in accordance with § 10.115(g)(2) and (3) without initially seeking prior comment because the agency has determined that prior public participation is not feasible or appropriate. In certain cases, donor retesting needs to be initiated quickly, and the availability of certain HCT/Ps may be critical to their intended recipients. Interested persons may, at any time, submit to the Division of Dockets Management (See ADDRESSES ) written or electronic comments regarding the guidance. Submit a single copy of electronic comments or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in the brackets in the heading of this document. A copy of the guidance and received comments are available for public examination in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. IV. Electronic Access Persons with access to the Internet may obtain the guidance at either http://www.fda.gov/cber/guidelines.htm or http://www.fda.gov/ohrms/dockets/default.htm . Dated: January 17, 2007. Jeffrey Shuren, Assistant Commissioner for Policy. [FR Doc. E7-978 Filed 1-23-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Bureau of Customs and Border Protection Agency Information Collection Activities: Visa Waiver Program Carrier Agreement (Form I-775) AGENCY: Bureau of Customs and Border Protection, Department of Homeland Security. ACTION: Proposed collection; comments requested. SUMMARY: The Bureau of Customs and Border Protection (CBP) of the Department of Homeland Security has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995: Visa Waiver Program Carrier Agreement (Form I-775). This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended without a change to the burden hours. This document is published to obtain comments form the public and affected agencies. This proposed information collection was previously published in the Federal Register (71 FR 67149) on November 20, 2006, allowing for a 60-day comment period. This notice allows for an additional 30 days for public comments. This process is conducted in accordance with 5 CFR 1320.10. DATES: Written comments should be received on or before February 23, 2007. ADDRESSES: Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Nathan Lesser, Desk Officer, Department of Homeland Security/Customs and Border Protection, and sent via electronic mail to oira_submission@omb.eop.gov or faxed to (202) 395-6974. SUPPLEMENTARY INFORMATION: The Bureau of Customs and Border Protection (CBP) encourages the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act of 1995 (Pub. L.104-13). Your comments should address one of the following four points: (1) Evaluate whether the proposed collection of information is necessary for the Proper performance of the functions of the agency/component, including whether the information will have practical utility; (2) Evaluate the accuracy of the agencies/components estimate of the burden of The proposed collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. , permitting electronic submission of responses. Title: Visa Waiver Program Carrier Agreement. OMB Number: 1651-0110. Form Number: Form I-775. Abstract: The Form I-775 provides for certain aliens to be exempt from the non-immigrant visa requirements if seeking entry as a visitor for no more than 90 days, provided that no potential threat exists to the security of the United States. Current Actions: There are no changes to the information collection. This submission is to extend the expiration date. Type of Review: Extension (without change). Affected Public: Individuals. Estimated Number of Respondents: 400. Estimated Time Per Respondent: 2 hours. Estimated Total Annual Burden Hours: 800. Estimated Total Annualized Cost on the Public: N/A. If additional information is required contact: Tracey Denning, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Room 3.2.C, Washington, DC 20229, at 202-344-1429. Dated: January 16, 2007. Tracey Denning, Agency Clearance Officer, Information Services Branch. [FR Doc. E7-959 Filed 1-23-07; 8:45 am] BILLING CODE 9111-14-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [OR-130-1020-PH; GP7-0053] Notice of Public Meeting, Eastern Washington Resource Advisory Council Meeting AGENCY: Bureau of Land Management, U.S. Department of the Interior. ACTION: Notice of public meeting. SUMMARY: In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management Eastern Washington Resource Advisory Council will meet as indicated below. DATES: The Eastern Washington Resource Advisory Council will meet Friday, February 23, 2007 at the Spokane District Office, Bureau of Land Management, 1103 North Fancher Road, Spokane Valley, Washington 99212-1275. SUPPLEMENTARY INFORMATION: The meeting will start at 8 a.m., adjourn at 4 p.m., and will be open to the public. The meeting will focus on establishing the Council's agenda for calendar year 2007. The meeting will also include updates on the status of projects and issues discussed at previous meetings. There will be an opportunity for public comment at 3 p.m. FOR FURTHER INFORMATION CONTACT: Scott Pavey or Sandie Gourdin, Bureau of Land Management, Spokane District Office, 1103 N. Fancher Road, Spokane Valley, Washington 99212-1275, or call (509) 536-1200. Dated: January 18, 2007. Richard Bailey, Acting District Manager. [FR Doc. E7-989 Filed 1-23-07; 8:45 am] BILLING CODE 4310-33-P INTERNATIONAL TRADE COMMISSION [Investigation No. 337-TA-550] In the Matter of Certain Modified Vaccinia Ankara (“MVA”) Viruses and Vaccines and Pharmaceutical Compositions Based Thereon; Notice of Commission Decision To Request Supplemental Briefing and To Extend the Target Date for Completion of the Investigation AGENCY: U.S. International Trade Commission. ACTION: Notice. SUMMARY: Notice is hereby given that the U.S. International Trade Commission has requested supplemental briefing in the above-captioned investigation and has determined to extend the target date for completion of the investigation. FOR FURTHER INFORMATION CONTACT: James A. Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3065. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server ( http://www.usitc.gov ). The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov . Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. SUPPLEMENTARY INFORMATION: This investigation was instituted on September 23, 2005, based on a complaint filed by Bavarian Nordic A/S of Denmark. The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain modified vaccinia ankara (“MVA”) viruses and vaccines and pharmaceutical compositions based thereon by reason of infringement of various claims of United States Patent Nos. 6,761,893 and 6,913,752. The complaint also alleged violations of section 337 in the importation of certain MVA viruses and vaccines and pharmaceutical compositions based thereon or in the sale of such articles by reason of misappropriation of trade secrets, the threat or effect of which is to destroy or substantially injure an industry in the United States. The complaint named a single respondent, Acambis PLC (“Acambis”) of the United Kingdom. Only the patent allegations remain in this investigation. After a hearing and post-hearing briefing, the ALJ issued a final initial determination (“final ID”) on September 6, 2006, finding no violation of section 337. The ALJ held that the patents were infringed but invalid. Bavarian Nordic, Acambis, and the Commission investigative attorney filed petitions for review of the final ID. By notice of November 22, 2006, the Commission determined to review the final ID in its entirety, as well as Order No. 10, to extend the target date for completion of the investigation to January 31, 2007, and to ask the parties for briefing on the issues on review and on remedy, public interest and bonding. The parties submitted their initial and reply briefs on December 12 and December 22, 2006, respectively. In view of information set out in the briefs on review, the Commission has requested briefing on whether this investigation has become or will shortly become moot, and if so, whether the investigation should be terminated. This information includes a press release by Acambis dated November 14, 2006 indicating that its “proposal is no longer being considered for award as part of the U.S. Government's Modified Vaccinia Ankara (“MVA”) smallpox vaccine tender process.” To accommodate briefing on this issue, the Commission has determined to extend the target date for completion of this investigation to February 21, 2007. This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.51(a) of the Commission's Rules of Practice and Procedure (19 CFR 210.51(a)). Issued: January 19, 2007. By order of the Commission. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E7-985 Filed 1-23-07; 8:45 am] BILLING CODE 7020-02-P DEPARTMENT OF LABOR Employee Benefits Security Administration Notice of a Proposed Amendment to Prohibited Transaction Exemption (PTE) 2000-58, 65 FR 67765 (November 13, 2000) and PTE 2002-41, 67 FR 54487 (August 22, 2002) Involving Bear, Stearns & Co. Inc., Prudential Securities Incorporated, et al. to Add Dominion Bond Rating Service Limited and Dominion Bond Rating Service, Inc. to the Definition of “Rating Agency” (D-11370) AGENCY: Employee Benefits Security Administration, Department of Labor. ACTION: Notice of a Proposed Amendment to the Underwriter Exemptions. 1 SUMMARY: This document contains a notice of pendency before the Department of Labor (the Department) of a proposed amendment to the Underwriter Exemptions. The Underwriter Exemptions are individual exemptions that provide relief for the origination and operation of certain asset pool investment trusts and the acquisition, holding and disposition by employee benefit plans (Plans) of certain asset-backed pass-through certificates representing undivided interests in those investment trusts. The proposed amendment, if granted, would expand the definition of “Rating Agency” in section III. X of the Underwriter Exemptions to include Dominion Bond Rating Service Limited (DBRS Limited) and Dominion Bond Rating Service, Inc. (DBRS, Inc.). The proposed amendment, if granted, would affect the participants and beneficiaries of the Plans participating in such transactions and the fiduciaries with respect to such plans. 1 The term “Underwriter Exemptions” refers to the following PTEs: PTE 89-88, 54 FR 42582 (October 17, 1989); PTE 89-89, 54 FR 42569 (October 17, 1989); PTE 89-90, 54 FR 42597 (October 17, 1989); PTE 90-22, 55 FR 20542 (May 17, 1990); PTE 90-23, 55 FR 20545 (May 17, 1990); PTE 90-24, 55 FR 20548 (May 17, 1990); PTE 90-28, 55 FR 21456 (May 24, 1990); PTE 90-29, 55 FR 21459 (May 24, 1990); PTE 90-30, 55 FR 21461 (May 24, 1990); PTE 90-31, 55 FR 23144 (June 6, 1990); PTE 90-32, 55 FR 23147 (June 6, 1990); PTE 90-33, 55 FR 23151 (June 6, 1990); PTE 90-36, 55 FR 25903 (June 25, 1990); PTE 90-39, 55 FR 27713 (July 5, 1990); PTE 90-59, 55 FR 36724 (September 6, 1990); PTE 90-83, 55 FR 50250 (December 5, 1990); PTE 90-84, 55 FR 50252 (December 5, 1990); PTE 90-88, 55 FR 52899 (December 24, 1990); PTE 91-14, 55 FR 48178 (February 22, 1991); PTE 91-22, 56 FR 03277 (April 18, 1991); PTE 91-23, 56 FR 15936 (April 18, 1991); PTE 91-30, 56 FR 22452 (May 15, 1991); PTE 91-62, 56 FR 51406 (October 11, 1991); PTE 93-31, 58 FR 28620 (May 5, 1993); PTE 93-32, 58 FR 28623 (May 14, 1993); PTE 94-29, 59 FR 14675 (March 29, 1994); PTE 94-64, 59 FR 42312 (August 17, 1994); PTE 94-70, 59 FR 50014 (September 30, 1994); PTE 94-73, 59 FR 51213 (October 7, 1994); PTE 94-84, 59 FR 65400 (December 19, 1994); PTE 95-26, 60 FR 17586 (April 6, 1995); PTE 95-59, 60 FR 35938 (July 12, 1995); PTE 95-89, 60 FR 49011 (September 21, 1995); PTE 96-22, 61 FR 14828 (April 3, 1996); PTE 96-84, 61 FR 58234 (November 13, 1996); PTE 96-92, 61 FR 66334 (December 17, 1996); PTE 96-94, 61 FR 68787 (December 30, 1996); PTE 97-05, 62 FR 1926 (January 14, 1997); PTE 97-28, 62 FR 28515 (May 23, 1997); PTE 97-34, 62 FR 39021 (July 21, 1997); PTE 98-08, 63 FR 8498 (February 19, 1998); PTE 99-11, 64 FR 11046 (March 8, 1999); PTE 2000-19, 65 FR 25950 (May 4, 2000); PTE 2000-33, 65 FR 37171 (June 13, 2000); PTE 2000-41, 65 FR 51039 (August 22, 2000); PTE 2000-55, 65 FR 37171 (November 13, 2000); PTE 2002-19, 67 FR 14979 (March 28, 2002); PTE 2003-31, 68 FR 59202 (October 14, 2003); and PTE 2006-07, 71 FR 32134 (June 2, 2006), each as subsequently amended by PTE 97-34, 62 FR 39021 (July 21, 1997) and PTE 2000-58, 65 FR 67765 (November 13, 2000) and for certain of the exemptions, amended by PTE 2002-41, 67 FR 54487 (August 22, 2002). In addition, the Department notes that it is also proposing individual amendments for: Deutsche Bank AG, New York Branch and Deutsche Morgan Grenfell/C.J. Lawrence Inc., Final Authorization Number (FAN) 97-03E (December 9, 1996); Credit Lyonnais Securities (USA) Inc., FAN 97-21E (September 10, 1997); ABN AMRO Inc., FAN 98-08E (April 27, 1998); Ironwood Capital Partners Ltd., FAN 99-31E (December 20, 1999) (supersedes FAN 97-02E (November 25, 1996)); William J. Mayer Securities LLC, FAN 01-25E (October 15, 2001); Raymond James & Associates Inc. & Raymond James Financial Inc., FAN 03-07E ( June 14, 2003); WAMU Capital Corporation, FAN 03-14E (August 24, 2003); and Terwin Capital LLC, FAN 04-16E (August 18, 2004); which received the approval of the Department to engage in transactions substantially similar to the transactions described in the Underwriter Exemptions pursuant to PTE 96-62, 61 FR 39988 (July 31, 1996). DATE: Written comments and requests for a hearing should be received by the Department by February 23, 2007. ADDRESSES: All written comments and requests for a public hearing (preferably, three copies) should be sent to the Office of Exemption Determinations, Employee Benefits Security Administration, Room N-5700, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, (Attention: Exemption Application Number D-11370 ). Interested persons are invited to submit comments and/or hearing requests to the Department by the end of the scheduled comment period either by facsimile to (202) 219-0204 or by electronic mail to moffitt.betty@dol.gov . The application pertaining to the proposed amendment (Application) and the comments received will be available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, U.S. Department of Labor, Room N-1513, 200 Constitution Avenue, NW., Washington, DC 20210. FOR FURTHER INFORMATION CONTACT: Wendy M. McColough of the Department, telephone (202) 693-8540. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: Notice is hereby given of the pendency before the Department of a proposed exemption to amend the Underwriter Exemptions. The Underwriter Exemptions are a group of individual exemptions that provide substantially identical relief for the operation of certain asset-backed or mortgage-backed investment pools and the acquisition and holding by Plans of certain securities representing interests in those investment pools. These exemptions provide relief from certain of the prohibited transaction restrictions of sections 406(a), 406(b) and 407(a) of the Employee Retirement Income Security Act of 1974, as amended (ERISA or the Act) and from the taxes imposed by section 4975(a) and (b) of the Internal Revenue Code of 1986, as amended (the Code), by reason of certain provisions of section 4975(c)(1) of the Code. All of the Underwriter Exemptions were amended by PTE 97-34, 62 FR 39021 (July 21, 1997) and PTE 2000-58, 65 FR 67765 (November 13, 2000) and certain of the Underwriter Exemptions were amended by PTE 2002-41, 67 FR 54487 (August 22, 2002). The Department is proposing this amendment to the Underwriter Exemptions pursuant to section 408(a) of the Act and section 4975(c)(2) of the Code, and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). 2 In addition, the Department is proposing to provide the same individual exemptive relief to: Deutsche Bank AG, New York Branch and Deutsche Morgan Grenfell/C.J. Lawrence Inc., Final Authorization Number (FAN) 97-03E (December 9, 1996); Credit Lyonnais Securities (USA) Inc., FAN 97-21E (September 10, 1997); ABN AMRO Inc., FAN 98-08E (April 27, 1998); Ironwood Capital Partners Ltd., FAN 99-31E (December 20, 1999) (supersedes FAN 97-02E (November 25, 1996)); William J. Mayer Securities LLC, FAN 01-25E (October 15, 2001); Raymond James & Associates Inc. & Raymond James Financial Inc., FAN 03-07E ( June 14, 2003); WAMU Capital Corporation, FAN 03-14E (August 24, 2003); and Terwin Capital LLC, FAN 04-16E (August 18, 2004); which previously received the approval of the Department to engage in transactions substantially similar to the transactions described in the Underwriter Exemptions pursuant to PTE 96-62, 61 FR 39988 (July 31, 1996). 2 Section 102 of Reorganization Plan No. 4 of 1978 (5 U.S.C. App. 1 [1996]) generally transferred the authority of the Secretary of the Treasury to issue exemptions under section 4975(c)(2) of the Code to the Secretary of Labor. 1. The Underwriter Exemptions permit Plans to purchase certain securities representing interests in asset-backed or mortgage-backed investment pools. The securities generally take the form of certificates issued by a trust (Trust). The Underwriter Exemptions permit transactions involving a Trust (including the servicing, management and operation of the Trust) and certificates evidencing interests therein (including the sale, exchange or transfer of certificates in the initial issuance of the certificates or in the secondary market for such certificates). The securities acquired by a Plan have been rated in one of the three highest rating categories (or four in the case of Designated Transactions 3 ) by a rating agency as defined in the Underwriter Exemptions (Rating Agency). The Rating Agency, in assigning a rating to such securities, takes into account the fact that the Issuer 4 may hold interest rate swaps or yield supplement agreements with notional principal amounts or, in Designated Transactions, securities may be issued by an Issuer holding residential and home equity loans with LTV ratios in excess of 100%. Section III.X. of the Underwriter Exemptions defines “Rating Agency” as Standard & Poor's Rating Services, a division of The McGraw-Hill Companies, Inc., Moody's Investors Services, Inc., Fitch Inc., or any successors thereto. 3 “Designated Transaction” means a securitization transaction in which the assets of the Issuer (see below) consist of secured consumer receivables, secured credit instruments or secured obligations that bear interest or are purchased at a discount and are: (i) Motor vehicle, home equity and/or manufactured housing consumer receivables; and/or (ii) motor vehicle credit instruments in transactions by or between business entities; and/or (iii) single-family residential, multi-family residential, home equity, manufactured housing and/or commercial mortgage obligations that are secured by single-family residential, multi-family residential, commercial real property or leasehold interests therein. 4 “Issuer” means an investment pool, the corpus or assets of which are held in trust (including a grantor or owner Trust) or whose assets are held by a partnership, special purpose corporation or limited liability company (which Issuer may be a Real Estate Mortgage Investment Conduit (REMIC) or a Financial Asset Securitization Investment Trust (FASIT) within the meaning of section 860D(a) or section 860L, respectively, of the Code. 2. Section II of the original Underwriter Exemptions, PTE 89-88, 54 FR 42582 (October 17, 1989); PTE 89-89, 54 FR 42569 (October 17, 1989); and PTE 89-90, 54 FR 42597 (October 17, 1989), sets forth the general conditions which must be met in order for an investing Plan to avail itself of the relief provided by one of the exemptions. Section II.A(3) requires that any certificate acquired by a plan in reliance on the exemption must have received a rating at the time of acquisition that is in one of the three highest categories from either Standard & Poor's Corporation, Moody's Investors Services, Inc. or Duff & Phelps. The Department proposed an amendment to this condition by notice at 55 FR 25914 (June 25, 1990) in response to a request from the three individual exemption applicants that Fitch Investors Service, Inc. (Fitch Inc.) be added to the rating agencies described in section II.A.(3) of PTE 89-88, PTE 89-89, and PTE 89-90. 5 5 Since the granting of these three exemptions on October 17, 1989, the Department had granted several other Underwriter Exemptions that included Fitch Inc. as an acceptable rating agency. To support this request, Fitch Inc. submitted letters to the Department which provided information on Fitch Inc's rating programs in general and its experience in rating asset backed securities in particular. Based on the information provided by Fitch Inc., the requests submitted on behalf of the applicants and the Department's previous consideration of Fitch Inc. in conjunction with several other Underwriter Exemptions, the Department amended PTE 89-88, PTE 89-89, and PTE 89-90 by notice at 55 FR 48939 (November 23, 1990) to include Fitch Inc. as an acceptable rating agency for the rating of certificates described in the exemptions. 6 6 The final paragraph of section III.B of these exemptions was also amended to include Fitch Inc. as an acceptable rating agency. 3. The proposed amendment was requested by Application, dated April 5, 2006, on behalf of the Securities Industry and Financial Markets Association (SIFMA) 7 , the American Securitization Forum (ASF), DBRS Limited and DBRS, Inc. (collectively, the Co-Applicants). The Co-Applicants request that the Department amend the Underwriter Exemptions to add DBRS Limited and DBRS, Inc. to the group of entities included in the definition of “Rating Agency” in section III.X. of the Underwriter Exemptions. The Co-Applicants provide that DBRS Limited was recognized as a nationally recognized statistical rating organization (NRSRO) for purposes of Rule 15c3-1 under the Securities Exchange Act of 1934 by virtue of receiving a “no action” letter from the Securities and Exchange Commission (SEC) on February 24, 2003. As the Co-Applicants explain below, the Co-Applicants believe that DBRS, Inc., its affiliate, is also considered to be covered under this no action letter. Accordingly, “DBRS” shall hereinafter refer both to DBRS Limited and DBRS, Inc., except where the context indicates otherwise. The Co-Applicants state that SIFMA and ASF agreed to make this request on behalf of their member underwriters for the reasons outlined below and because The Bond Market Association (TBMA), now merged into SIFMA, was the original entity that requested the exemptive relief granted by the Department pursuant to PTE 97-34, 62 FR 39021 (July 21, 1997), PTE 2000-58, 65 FR 67765 (Nov.13, 2000) and PTE 2002-41, 67 FR 54487 (August 22, 2002). ASF was formed in February 2002, as an adjunct forum for TBMA to more specifically represent the interests of underwriters and other organizations related to the securitization markets (although ASF is part of the same legal entity as TBMA). 7 On November 15, 2006, the Co-Applicants informed the Department that on October 31, 2006, The Bond Market Association and the Securities Industry Association merged into a new entity, SIFMA. SIFMA is a Delaware nonstock corporation that was incorporated in June 2006 for purposes of the merger. Its members are approximately 650 securities firms, banks and asset managers. Its mission is to promote policies and practices that expand and perfect markets, foster the development of new products and services and create efficiencies for member firms, while preserving and enhancing the public's trust and confidence in the markets and the industry. The Bond Market Association no longer exists, having merged into SIFMA. The ASF is now a forum of SIFMA, and it is still a joint applicant. 4. The Co-Applicants represent that, if the requested amendment is not granted, possible violations of the prohibited transaction provisions of sections 406(a), 406(b) and 407(a) of ERISA (and the corresponding provisions of sections 4975(c)(1)(A) through (F) of the Code) resulting from: (a) The purchase and sale of securities by a Plan to which any of the other parties is a party in interest; 8 and (b) the servicing, management and operation of an issuer may occur if DBRS Limited or DBRS, Inc. ratings are used for such transactions. The Co-Applicants believe that, if the requested amendment is not granted, this would result in the loss of opportunities for an investing Plan to achieve a current market return through investment in securities that have received a rating from an NRSRO as high as or higher than that of comparable instruments in which the Plan is clearly permitted to invest. The Co-Applicants assert that it is in the interests of Plan participants and beneficiaries that a Plan has the opportunity to diversify its investment portfolio by purchasing securities rated by a wide variety of rating agencies subject to a significant amount of competition. 8 The term “party in interest” also includes, where applicable, a “disqualified person” within the meaning of section 4975(e)(2) of the Code. 5. The Co-Applicants believe that the proposed amendment would be administratively feasible because the proposed requirements generally mirror those deemed administratively feasible in the asset-backed and mortgage-backed securities (ABS and MBS, respectively) exemptions previously issued by the Department. The transactions may be audited easily by a Plan fiduciary and all the records necessary to review these transactions will be kept for six years. The Co-Applicants state that no further action would be required by the Department. The Co-Applicants consider that the requested amendment would be in the interest of the Plans and its participants and beneficiaries because it increases the number of available investment options, enhances diversification and liquidity and promotes a greater ability to assess credit risk and the rating process. The Co-Applicants state that the amendment would be protective of the rights of the Plans since the sale of the securities will be conducted under all of the safeguards contained in the existing Underwriter Exemptions for the sale of asset and mortgage-backed pass-through securities. Additionally, the Co-Applicants believe that expanding the number of rating agencies with experience in rating the type of obligations covered under the Underwriter Exemptions would significantly benefit the Plans. The number of NRSROs that had been included within the definition of Rating Agency under the Underwriter Exemptions as of 1990 has been reduced from four to three since Duff & Phelps Inc. (D & P) and Fitch Inc. merged in 2000 and became FitchRatings, Inc. (Fitch). There may be additional mergers in the future. The Co-Applicants believe that this could make the number of Rating Agencies available to rate Underwriter Exemption-eligible MBS and ABS even fewer; resulting in fewer and less liquid securities available for Plans to purchase. The Co-Applicants further note that, when the Department considered First Boston Corporation's original application for its Underwriter Exemption in the proposed exemption to PTE 89-90 at 53 FR 52851 (December 29, 1988), First Boston requested that any certificate receiving a rating in the three highest rating categories from any NRSRO receive exemptive relief. According to the Applicants, while the Department recognized that rating agencies other than Standard & Poor's Corporation (currently, Standard & Poor's Rating Services, a division of The McGraw Hill Companies, Inc. (S & P)), Moody's Investor Services, Inc. (Moody's) and D&P qualified as NRSROs, it decided that only those three should qualify as Rating Agencies under the Underwriter Exemptions, based on their respective experience in rating certain types of MBS/ABS. 9 Fitch Inc. was later specifically named as an additional Rating Agency for purposes of the Underwriter Exemptions beginning in 1989. The Co-Applicants believe that if the Department were to add DBRS Limited and DBRS, Inc. to the group of Rating Agencies permitted to rate Underwriter Exemption-eligible securities, it would benefit Plan investors in several ways, including: (a) Investors would have access to additional information and additional opinions about the creditworthiness of issuers and securities; (b) competition among rating agencies would result in improved accuracy and timeliness of ratings, thereby allowing investors to assess risk with greater certainty; and (c) competition among rating agencies would encourage different methods of analyzing credit risk. 9 53 FR 52851 at p. 52857, footnote 7 (December 29, 1988). There are currently five entities which were recognized by the SEC through the no-action letter process as NRSROs: S&P, Moody's, Fitch, DBRS and A.M. Best Company, Inc. 6. The Co-Applicants assert that DBRS has extensive experience in rating every type of obligation that is eligible for exemptive relief under the Underwriter Exemptions and listed under the definition of an “Issuer” in section III.B of the Underwriter Exemptions; and, therefore, meets a major criterion for recognition as a Rating Agency for purposes of the Underwriter Exemptions. In reviewing the information submitted to the Department by S&P and Fitch Inc. at that time, the Department was given information regarding how these agencies rated securities and the credentials of the senior management of their securitization groups. In this regard, DBRS has reviewed the description of the rating process in both the D&P submission and the proposed exemption for PTE 2000-58 and feels that its rating process is comparable to these. The Co-Applicants submitted the biographies of senior management for the DBRS Limited and DBRS, Inc. Structured Finance Departments to the Department with their Application. 7. In order for the SEC to recognize DBRS Limited as an NRSRO in 2003, DBRS Limited had to satisfy certain established criteria. The single most important criterion was that DBRS Limited be widely accepted in the U.S. as an issuer of credible and reliable ratings by the predominant users of securities ratings. In addition, the following aspects of DBRS Limited's operational capability and reliability were reviewed: (i) Its organizational structure, (ii) its financial resources, to determine, among other things, whether it is able to operate independently of economic pressures or control from the companies its rates, (iii) the size and experience and training of its staff to determine if it is capable of thoroughly and competently evaluating an issuer's credit, (iv) its independence from the entities it rates, (v) its rating procedures to determine whether it has systematic procedures designed to produce credible and accurate ratings and (vi) whether it has internal procedures to prevent the misuse of non-public information and whether those procedures are followed. On April 5, 2006, the Co-Applicants provided the following update of the statistics set forth in the SEC's no action letter dated February 24, 2003 regarding DBRS's business. DBRS now has a total staff of 175, 110 of which are analysts. Of those analysts, 51 rate securitization transactions. The Co-Applicants also provided biographical information about the senior management team for that latter group. As of the application date, the principal amount of asset-backed securities (ABS), residential mortgage-backed securities (RMBS) and commercial mortgage-backed securities (CMBS) transactions that DBRS has rated and that are currently outstanding are: Can. $128.3 billion of ABS for Canadian issuers (representing 158 transactions); U.S. $192.1 billion of RMBS and ABS for U.S. issuers (representing 207 transactions); and U.S. $20.5 billion of CMBS for U.S. issuers (representing 14 transactions). DBRS's Structured Finance Department has also written over 95 industry reports and 442 rating reports. 8. The Co-Applicants state that DBRS Limited is a Canadian rating agency that has been in existence for almost 30 years, having been incorporated in 1976 under the Ontario Business Corporations Act. DBRS Limited was originally founded and owned by Walter Schroeder, who remains its President. DBRS Limited operates primarily through its Toronto office and DBRS Limited's U.S. affiliate, DBRS, Inc., which has offices in New York and Chicago. 10 On February 24, 2003 when the SEC issued its no action letter identifying DBRS Limited as an NRSRO, DBRS Limited conducted all of its credit rating activities from its Toronto Ontario headquarters and rated issuers and securities both in Canada and in the United States. Subsequently, DBRS Limited decided to establish a physical presence in the United States. The New York and Chicago offices were incorporated as DBRS, Inc. on August 21, 2003. The U.S. operations were organized for tax reasons as a separate Delaware affiliate corporation instead of as a branch of the Canadian company. The Co-Applicants assert that, although technically it is principally DBRS, Inc. that rates U.S. issuers and securities and DBRS Limited that rates Canadian issuers and securities, the ratings activities of Dominion Bond Rating Service worldwide are conducted in a seamless fashion and both DBRS Limited and DBRS, Inc. are considered to be covered by the SEC's NRSRO no-action letter. The Co-Applicants add that DBRS, Inc. employs the same rating process that DBRS Limited uses; its ratings are approved by the same rating committees that approve DBRS Limited's ratings; its staff are subject to the same code of conduct that applies to DBRS Limited's staff; all ratings are “DBRS” ratings without attribution to one corporate entity or the other, DBRS Limited stands behind the ratings issued by DBRS, Inc. and the officers of DBRS Limited supervise the ratings process conducted by DBRS, Inc. In this regard, the Co-Applicants submitted a letter dated November 1, 2005 from Mari-Anne Pisarri, Esq. of Pickard and Djinis, LLP, counsel to DBRS Limited to Mr. Michael A. Macchiaroli, Associate Director, Division of Market Regulation at the SEC discussing the NRSRO status of the ratings activities of DBRS, Inc. 10 DBRS also recently opened offices in London, Paris and Frankfurt through another affiliate, DBRS (Europe) Limited. 9. On September 29, 2006, the President signed into law S. 3850, the Credit Rating Agency Reform Act of 2006 (CRARA). CRARA was introduced as a bill to improve ratings quality for the protection of investors and in the public interest by fostering accountability, transparency, and competition in the credit rating agency industry. The law will restructure the existing regulation of credit rating agencies by the SEC. Under CRARA, a credit rating agency can obtain the NRSRO designation through an application process unless the SEC determines that the agency lacks adequate financial and managerial resources to consistently produce credit ratings with integrity and to comply with its stated methodologies and procedures (CRARA subsection 4(a)(2)(C)). The Securities Exchange Act of 1934 is amended at section 3(a) and by the addition of new section 15E. Registration of Nationally Recognized Statistical Rating Organizations. Section 3(a) is amended by adding certain new definitions relevant to this proposed amendment (CRARA section 3): (60) CREDIT RATING—The term ‘credit rating’ means an assessment of the creditworthiness of an obligor as an entity or with respect to specific securities or money market instruments. (61) CREDIT RATING AGENCY—The term ‘credit rating agency’ means any person— (A) Engaged in the business of issuing credit ratings on the Internet or through another readily accessible means, for free or for a reasonable fee, but does not include a commercial credit reporting company; (B) Employing either a quantitative or qualitative model, or both, to determine credit ratings; and (C) Receiving fees from either issuers, investors, or other market participants, or a combination thereof. (62) NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION—The term ‘nationally recognized statistical rating organization’ means a credit rating agency that— (A) Has been in business as a credit rating agency for at least the 3 consecutive years immediately preceding the date of its application for registration under section 15E; (B) Issues credit ratings certified by qualified institutional buyers, in accordance with section 15E(a)(1)(B)(ix), with respect to— (i) Financial institutions, brokers, or dealers; (ii) Insurance companies; (iii) Corporate issuers; (iv) Issuers of asset-backed securities (as that term is defined in section 1101(c) of part 229 of title 17, Code of Federal Regulations, as in effect on the date of enactment of this paragraph); (v) Issuers of government securities, municipal securities, or securities issued by a foreign government; or (vi) A combination of one or more categories of obligors described in any of clauses (i) through (v); and (C) Is registered under section 15E. CRARA establishes a registration and oversight scheme for NRSROs under the Securities Exchange Act of 1934 (Exchange Act). This regime replaces the SEC's current no-action letter process for designating NRSROs and removes NRSROs from the jurisdiction of the Investment Advisers Act of 1940 (Advisers Act). The new regulatory regime takes effect when the SEC promulgates the rules necessary to implement CRARA, or in 270 days after CRARA's enactment date, whichever is sooner. Thus, the new registration requirements will apply by June 26, 2007. However, because the SEC has 90 days to consider an NRSRO application (or longer, if the applicant consents), the first NRSRO registration may not occur until the end of September 2007. Although the NRSRO no-action letters will be void after the effective date of the new law, the 5 existing NRSROs will be allowed to function as NRSROs while the SEC considers their applications. 10. The Co-Applicants represent that DBRS Limited and DBRS, Inc. each: (a) Will qualify as a “Nationally Recognized Statistical Rating Organization” within the meaning of new section 3(a)(62) of the Exchange Act as amended by the legislation, as each will be in business for at least three years prior to its applying for registration under the new statutory procedures, (b) rate the specified types of securities listed under such section, and (c) intend to register at the first date DBRS is able to register under new section 15E of the legislation and the applicable regulations and procedures to be promulgated by the SEC. The Co-Applicants state that DBRS Limited and DBRS, Inc. will each be able to supply the information and meet the implied substantive criteria set forth in the legislation in new section 15E(a)(1)(B) of the Exchange Act as demonstrated in the chart below, provided by the Co-Applicants, that compares the requirements for NRSRO registration under the legislation to existing requirements and the Co-Applicants confirm that each rating agency would comply. The Co-Applicants assert that the criteria for registration under the new law are not substantively different from what DBRS and the other current NRSROs already comply with. DBRS has also adopted and adheres to the International Organization of Securities Commissions' (IOSCO) Code of Conduct Fundamentals for Credit Rating Agencies issued in December 2004 (IOSCO Code of Conduct). Additionally, the Co-Applicants have provided the Department with copies of the DBRS Code of Conduct, the Report of Compliance to the DBRS Code of Conduct and the DBRS Corporate Default Study 1977-2005, which are pertinent to this analysis. CRA Reform Act requirement Existing requirement DBRS complies? Under Exchange Act § 15E (a) (1)(B), NRSRO applications must include: (i) Applicant's credit rating performance measurement statistics IOSCO Code §§ 1.2, 3.8 Yes. Corporate Default Study shows performance 1977-2004. (ii) Procedures & methodologies Applicant uses in determining credit ratings Required as part of NRSRO no-action letter designation process; IOSCO Code, §§ 1.A, 3.2, 3.5, 3.10 Yes. (iii) Policies and procedures to prevent the misuse of inside information Advisers Act, § 204A IOSCO Code, § 3.B Yes. (iv) The organizational structure of the Applicant Required as part of NRSRO no-action letter designation process; information on organization required on Form ADV; IOSCO Code, §§ 2.5, 2.10, 2.11, 2.12 Yes. (v) Whether or not Applicant has a code of ethics, and if not, why not Advisers Act Rule 204A-1 requires a Code of Ethics; IOSCO Code, §§ 1.C, 2, 4.1 Yes. (vi) Any conflict of interest relating to the Applicant's issuance of credit ratings; § 15E(h) also requires NRSROs to maintain written policies and procedures to address and manage any conflicts of interest Advisers Act Rule 204A-1 requires advisers' codes of ethics to address conflicts; IOSCO Code, § 2.B Yes. (ix) Written certifications from Qualified Institutional Buyers (QIBs) who use Applicant's ratings Does not apply to current NRSROs. However, DBRS already supplied this type of information to the SEC to prove its “national recognition” under the no-action letter designation process N/A. Exchange Act § 15E(j) requires NRSROs to designate an individual responsible for administering its compliance policies and procedures Advisers Act Rule 206(4)-7 requires the appointment of a Chief Compliance Officer; IOSCO Code § 1.15 requires that a person be specified as responsible for overseeing compliance with applicable laws and regulations Yes. Exchange Act § 15E(i) directs the SEC to adopt rules prohibiting unfair business practices by NRSROs Advisers Act Rule 204A-1; IOSCO Code §§ 1.C, 2.3, 2.4, 2.5, 2.11, 2.12, 2.15 Yes. 11. The Co-Applicants assert that under the new legislation, there would be no period of time when DBRS would not maintain its status as an NRSRO. They note that under new section 15E(l)(2)(A) of the Exchange Act, a rating agency is entitled to rely on its no-action letter from the SEC to be treated as an NRSRO and act as an NRSRO while the SEC is considering its registration application pursuant to the new procedures and thereafter on and after its application is approved. The no-action letters that the SEC has issued to date to the five rating agencies including DBRS will become void under section 15E(1)(2)(B) upon the earlier of (i) 270 days following the date of enactment of the legislation (September 29, 2006) or (ii) the date the regulations are issued by the SEC in final form. This theoretically means that if the SEC fails to issue the regulations on a timely basis, all five rating agencies would lose their NRSRO status. However, if this were to occur, it would also affect Moody's, Standard & Poor's, Fitch and A.M. Best Company, Inc. in the same manner as DBRS, and this would have disastrous results in the capital markets. Presumably this issue would have to be addressed by an amendment to the legislation. 12. The Co-Applicants request that the Department grant DBRS Rating Agency status under the Underwriter Exemptions at this time and that it not wait until the SEC issues a final rule. Waiting until the SEC issues a final rule could take a substantial period of time which can only be disadvantageous for Plan investors. The Co-Applicants represent that DBRS Limited and DBRS, Inc. are already fully recognized together as an NRSRO and also meet the new proposed requirements. Accordingly, the Co-Applicants believe that there is no reason to wait for the SEC to issue the regulations and procedures for registration under CRARA as it will not affect DBRS's status. The Co-Applicants believe that although CRARA provides that any no-action letter previously granted by the SEC would be revoked, DBRS's NRSRO status would be quickly reinstated as it would meet all of the qualifications under the new registration requirements. The Co-Applicants assert that DBRS also complies with the substantive standards that the Department has previously established under the Underwriter Exemptions. Second, CRARA also will affect S&P, Moody's and Fitch, which have already been granted status as Rating Agencies under the Underwriter Exemptions, in exactly the same way as it would affect DBRS if the Department were to grant this application. All four rating agencies would have their NRSRO status revoked and replaced with a new form of NRSRO registration. Accordingly, the Department would still be required to make its own determinations as to whether it considers a rating agency eligible to be covered under a particular type of exemption. 13. The Co-Applicants believe that the Department also intended to look to the SEC's proposed definition of NRSROs as published in Part 240 of its General Rules and Regulations under the Exchange Act for guidance in determining who should qualify as a “Rating Agency” for purposes of the broad exemptive relief that has been previously granted by the Department. Prior to the enactment of CRARA, the Department had indicated that it would consider DBRS' status as a Rating Agency under the Underwriter Exemptions based on the criteria set forth in the SEC's proposed rule regarding the definition of an NRSRO published in the Federal Register on April 25, 2005 (70 FR 21306). In proposing the new definition, the SEC indicated that it believes that the five rating agencies to which it has already issued NRSRO no-action letters, including DBRS, would meet the proposed definition. The Co-Applicants assert that DBRS would meet the proposed definition of an NRSRO as set forth in the SEC's proposed rule that the entity: (a) Issues publicly available credit ratings that are current assessments of the credit worthiness of obligors with respect to specific securities or money market instruments; (b) is generally accepted in the financial markets as an issuer of credible and reliable ratings, including ratings for a particular industry or geographic segment by the predominant users of securities ratings; and (c) uses systematic procedures designed to ensure credible and reliable ratings, manage potential conflicts of interest and prevent the misuse of nonpublic information, and has sufficient financial resources to ensure compliance with those procedures. The Co-Applicants submitted the following review of the standards the SEC discussed in its proposal to demonstrate DBRS' status as an NRSRO prior to CRARA. a. Publicly Available Credit Ratings: DBRS makes its credit ratings available on its Web site at http://www.dbrs.com . The basic rationale behind the ratings is also available to the public through press releases. Both types of information are available at no charge. b. Issue-Specific Credit Opinions: DBRS rates specific securities, as well as issuers. c. Current Credit Opinions: DBRS issues ratings that represent current assessments of the securities ratings, as it has procedures in place to have at least two analysts be familiar with, and responsible for, all current and recent events relating to an issuer after DBRS issues its initial rating of the securities. A rating is fully reviewed and a meeting arranged with each sponsor's 11 senior management on at least an annual basis. Follow up meetings occur where there have been material changes to the sponsor associated with the issuer or amendments to the initial program parameters and/or the program structure. In addition, if events occur that materially affect the credit performance of the issuer, a rating will be changed on a more frequent basis. A rating may also be placed “Under Review” if a significant event which impacts credit quality occurs and DBRS is unable to provide an objective forward looking opinion. In order to maintain the currency and accuracy of structured debt ratings, DBRS has several surveillance departments located in offices both in the United States and Canada. The analysts working in these departments are responsible for the collection, entry, analysis, and reporting related to the monitoring of structured finance transactions. Analysts are expected to analyze the data being reported by issuers and sponsors, identify transactions that require remediation or additional follow-up, and work with other analysts to determine the most appropriate course of action. 11 The Co-Applicants note that the term “sponsor” is used in their Application in the same way as the term “sponsor” is defined in the Underwriter Exemptions under Section III.D. “Sponsor” may also be deemed to refer to an originator of loans, if deemed necessary and/or appropriate by DBRS for its ratings analyses with respect to securities issued by a specific issuer. d. General Acceptance in the Financial Markets: DBRS credibility and reasonable reliance of the marketplace have already been established by the SEC's grant of DBRS Limited's February 24, 2003 no-action letter, as this is the most important criterion cited by the SEC in such a grant. e. Limited Coverage NRSROs: DBRS Limited received a no-action letter with respect to its ability to rate all securities and issuers with no limitations. The Co-Applicants believe this letter also applies to DBRS, Inc. as discussed above. f. Analyst Experience and Training: DBRS requires that its analysts have the requisite experience and training to rate issuers and securities competently. The SEC in previously making this determination for its no-action letter, mentioned that generally, all of DBRS' analysts have degrees in business administration or accounting and many have professional designations such as MBAs, JDs and CFAs. g. Number of Ratings per Analyst: DBRS maintains reasonable workloads for its analysts so that their analytical abilities to rate securities remain high, while not overloading them so that their work suffers in quality. The statistics of the number of ABS/RMBS/CMBS transactions and the number of securitization analysts have been given herein. In general, DBRS analysts work within groups, with each group containing approximately two to six analysts who cover issuers from industries that are as related as possible. Each issuer is normally covered directly by two analysts, who work together on the rating, arrange for and attend meetings with the sponsor's senior management, and make a recommendation with regard to the rating action for the entity. The “primary analyst” is responsible for preparing and for conducting the interview with the sponsor's management, for writing the initial draft rating report, and for making the presentation to the rating committee. The “secondary” or backup analyst is responsible for supporting the primary analyst with these duties. Other analysts from the group can be available to provide additional support prior to the rating committee recommendations. The group head will review the report prior to the rating committee. Thus, there are generally at least two analysts that are familiar with, and responsible for, all current and recent events for that issuer. Since each issuer and sponsor is under continuous surveillance, all ratings are current. h. Information Sources Used in the Ratings Process: DBRS has procedures in place to verify financial information it receives from any given sponsor with respect to itself and the issuer. In many cases, DBRS will also require third party reports on the sponsor and with respect to the issuer as well as comparisons that have been done for comparable sponsors and issuers. All opinions expressed at the sponsor's senior management level during meetings are scrutinized to deal with any inherent biases that may have affected sponsor's perceptions of their relative strengths and weaknesses in absolute terms or in comparison to their competition. For both initial ratings and subsequent maintenance of such ratings, DBRS obtains a wide variety of information from third party sources. Public documents include regulatory filings, newspaper subscriptions, electronic news from services such as Reuters and Bloomberg, equity research from investment banks, and a wide variety of industry, sponsor and issuer specific news from the internet. DBRS also subscribes to publications such as Forbes, the Wall Street Journal, the Financial Post, Value Line, Business Week and the Economist. Most groups at DBRS have additional subscriptions related to their own specific area of interest. The general market intelligence that each analyst gains from conferences, DBRS sponsored seminars and luncheons, industry contacts, other independent reading and speeches are additional sources of information that assist in DBRS's analysis. i. Contacts: As discussed above, DBRS meets with senior management of the sponsors related to the issuers of securities it rates. j. Organizational Structure: DBRS Limited, DBRS, Inc. and DBRS (Europe) Limited are not affiliated with any other organizations or engaged in any other businesses that could create conflicts of interest or cause the misuse of nonpublic information. k. Conflicts of Interest: (i) Reliance on Issuer Fees—DBRS does not have any one sponsor accounting for a meaningful percentage of its overall revenues, so no one sponsor can exert untoward pressure on DBRS's rating activities. (ii) Internal Policies—DBRS encourages analysts to strive for good long-term relationships with its sponsor clients, while at the same time being mindful of maintaining objectivity. For example, when dealing with sponsors, DBRS expects analysts to be familiar with the CFA Institute Standards of Practice Handbook (the Handbook), which sets forth rules of ethics and professional responsibility for certified financial analysts, and to comply with its Code of Ethics, regardless of analysts' CFA status. As mandated by the Code of Ethics, analysts are warned to always be conscious about accepting gifts from a sponsor that could be considered significant enough to impair objectivity. Analysts are also prohibited from soliciting money, gifts, cash or favors from anyone with whom DBRS does business. As stated above, DBRS has adopted and adheres to the IOSCO Code of Conduct and has published a DBRS Code of Conduct that summarizes how its extensive range of policies, procedures and internal controls meet the IOSCO Code of Conduct. (iii) Consulting or Advisory Fees from Issuers—DBRS does not engage in a separate consulting or advisory for fee services business. (iv) Preferential Access to Information—DBRS does not allow subscribers to be given access to potential DBRS rating actions before they become public or to any nonpublic information. (v) Proprietary Associations with Rated Issuers: DBRS does not allow any employee, analyst or consultant to invest in any company or subsidiary that DBRS rates or benchmarks except for “grandfathered securities.” 12 DBRS also requires employees, analysts and consultants to report their investment activities to the Compliance Department each calendar quarter (i) by completing a signed transaction report or forwarding copies of brokerage statements if they have “reportable securities transactions;” (ii) by completing a signed statement indicating that they have reportable securities but did not engage in any “reportable securities transactions;” (iii) by email if they hold only “excluded securities;” and (iv) by email if they hold no investments. Excluded securities are mutual funds, GIC's, CD's, etc.; reportable securities include all securities that are not specifically excluded. 12 “Grandfathered securities” are securities of companies that DBRS rates or benchmarks but that a staff member already owns at the time they become newly employed by DBRS and those securities that a staff member held prior to DBRS undertaking the company as a rated or benchmarked entity. Grandfathered securities must not be sold unless and until written permission is obtained from the Chief Compliance Officer. l. Misuse of Information: DBRS prohibits employees from discussing nonpublic information with anyone other than the sponsor being rated or other DBRS employees. In addition, DBRS staff and consultants must annually review and sign an “Annual Statement of Understanding” concerning DBRS's Code of Ethics which among other areas contains sections on confidentiality and nonpublic information. m. Financial Resources: DBRS has sufficient financial resources to maintain appropriate staffing levels to continuously monitor the sponsors and the issuers whose securities it rates. As mentioned above, it believes that conflicts of interests with sponsors and subscribers are minimized as none alone provide a significant source of business for it. n. Standardized Rating Symbols: DBRS uses the same generic substantive rating categories as the other four existing NRSROs and the SEC is not proposing to change the “sub-symbols” (i.e., “plus” or “minus” versus “high” or “low”). o. Statistical Models: Statistical models are only one of the methods used by DBRS to rate issuers or securities. 14. The Plans affected by the requested amendment are those Plans that will participate in a trust established under a pooling and servicing agreement. One or more Plans may invest in the securities to be issued with respect to a given issuer. Every Plan which intends to invest in an issuer will be able to review the form of the pooling and servicing agreement prior to acquiring a security. Each Plan will be an “accredited investor” as defined in Rule 501(a)(1) of Regulation D under the Securities Act of 1933, as amended. The proposed amendment involves a class of prospective transactions with Plans. In its capacity as a rating agency, DBRS has no Plan clients or potential Plan clients. 13 Therefore, the Co-Applicants request that the publication of this proposed exemption in the Federal Register serve as the Notice to Interested Persons for purposes of this request. 13 Although not relevant to this application, some Plans subscribe to DBRS's subscription service. 15. The Co-Applicants request that the relief, if granted, be made retroactive to the date that they originally filed their request on April 5, 2006. DBRS had originally been prepared to file its application prior to April 5th; however, the SEC issued its proposed rules defining an NRSRO and this caused a delay in filing the application. The application was further delayed by the submission of additional information in response to the enactment of CRARA on September 29, 2006. Retroactive relief is requested to cover those transactions that have occurred or will occur over the next few months where DBRS was or is the only rating agency that gave or will give an investment-grade rating to certificates. If the relief is granted retroactively, Plans would be able to purchase certificates in the secondary market relying upon the Underwriter Exemptions once exemptive relief is granted, even if the transactions originally closed or will close prior to the date the final exemption, if granted by the Department, is published in the Federal Register . General Information The attention of interested persons is directed to the following: 1. The fact that a transaction is the subject of an exemption under section 408(a) of the Act and section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which require, among other things, a fiduciary to discharge his or her duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirements of section 401(a) of the Code that the plan operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries; 2. Before an exemption can be granted under section 408(a) of the Act and section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interest of the plans and of their participants and beneficiaries and protective of the rights of participants and beneficiaries of the plans; and 3. The proposed amendment, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction. Written Comments and Hearing Requests All interested persons are invited to submit written comments or requests for a hearing on the pending amendment to the address above, within the time frame set forth above, after the publication of this proposed amendment in the Federal Register . All comments will be made a part of the record. Comments received will be available for public inspection with the Application at the address set forth above. Proposed Exemption Based on the facts and representations set forth in the application, under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, August 10, 1990), the Department proposes to modify the following individual Prohibited Transaction Exemptions (PTEs), as set forth below: PTE 89-88, 54 FR 42582 (October 17, 1989); PTE 89-89, 54 FR 42569 (October 17, 1989); PTE 89-90, 54 FR 42597 (October 17, 1989); PTE 90-22, 55 FR 20542 (May 17, 1990); PTE 90-24, 55 FR 20548 (May 17, 1990); PTE 90-28, 55 FR 21456 (May 24, 1990); PTE 90-29, 55 FR 21459 (May 24, 1990); PTE 90-30, 55 FR 21461 (May 24, 1990); PTE 90-32, 55 FR 23147 (June 6, 1990); PTE 90-36, 55 FR 25903 (June 25, 1990); PTE 90-39, 55 FR 27713 (July 5, 1990); PTE 90-59, 55 FR 36724 (September 6, 1990); PTE 90-83, 55 FR 50250 (December 5, 1990); PTE 90-84, 55 FR 50252 (December 5, 1990); PTE 90-88, 55 FR 52899 (December 24, 1990); PTE 91-14, 55 FR 48178 (February 22, 1991); PTE 91-22, 56 FR 03277 (April 18, 1991); PTE 91-23, 56 FR 15936 (April 18, 1991); PTE 91-30, 56 FR 22452 (May 15, 1991); PTE 91-62, 56 FR 51406 (October 11, 1991); PTE 93-31, 58 FR 28620 (May 5, 1993); PTE 93-32, 58 FR 28623 (May 14, 1993); PTE 94-29, 59 FR 14675 (March 29, 1994); PTE 94-64, 59 FR 42312 (August 17, 1994); PTE 94-70, 59 FR 50014 (September 30, 1994); PTE 94-73, 59 FR 51213 (October 7, 1994); PTE 94-84, 59 FR 65400 (December 19, 1994); PTE 95-26, 60 FR 17586 (April 6, 1995); PTE 95-59, 60 FR 35938 (July 12, 1995); PTE 95-89, 60 FR 49011 (September 21, 1995); PTE 96-22, 61 FR 14828 (April 3, 1996); PTE 96-84, 61 FR 58234 (November 13, 1996); PTE 96-92, 61 FR 66334 (December 17, 1996); PTE 96-94, 61 FR 68787 (December 30, 1996); PTE 97-05, 62 FR 1926 (January 14, 1997); PTE 97-28, 62 FR 28515 (May 23, 1997); PTE 98-08, 63 FR 8498 (February 19, 1998); PTE 99-11, 64 FR 11046 (March 8, 1999); PTE 2000-19, 65 FR 25950 (May 4, 2000); PTE 2000-33, 65 FR 37171 (June 13, 2000); PTE 2000-41, 65 FR 51039 (August 22, 2000); PTE 2000-55, 65 FR 37171 (November 13, 2000); PTE 2002-19, 67 FR 14979 (March 28, 2002); PTE 2003-31, 68 FR 59202 (October 14, 2003); and PTE 2006-07, 71 FR 32134 (June 2, 2006), each as subsequently amended by PTE 97-34, 62 FR 39021 (July 21, 1997) and PTE 2000-58, 65 FR 67765 (November 13, 2000) and for certain of the exemptions, amended by PTE 2002-41, 67 FR 54487 (August 22, 2002). In addition, the Department notes that it is also proposing individual exemptive relief for: Deutsche Bank A.G., New York Branch and Deutsche Morgan Grenfell/C.J. Lawrence Inc., Final Authorization Number (FAN) 97-03E (December 9, 1996); Credit Lyonnais Securities (USA) Inc., FAN 97-21E (September 10, 1997); ABN AMRO Inc., FAN 98-08E (April 27, 1998); Ironwood Capital Partners Ltd., FAN 99-31E (December 20, 1999) (supersedes FAN 97-02E (November 25, 1996)); William J. Mayer Securities LLC, FAN 01-25E (October 15, 2001); Raymond James & Associates Inc. & Raymond James Financial Inc., FAN 03-07E ( June 14, 2003); WAMU Capital Corporation, FAN 03-14E (August 24, 2003); and Terwin Capital LLC, FAN 04-16E (August 18, 2004); which received the approval of the Department to engage in transactions substantially similar to the transactions described in the Underwriter Exemptions pursuant to PTE 96-62, 61 FR 39988 (July 31, 1996). The definition of “Rating Agency” under section III.X. of the Underwriter Exemptions is amended to read: “Rating Agency” means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc.; Moody's Investors Service, Inc.; FitchRatings, Inc.; Dominion Bond Rating Service Limited, or Dominion Bond Rating Service, Inc.; or any successors thereto. If granted, the amendment would be effective for transactions occurring on or after April 5, 2006. The availability of this amendment, if granted, is subject to the express condition that the material facts and representations contained in the Application are true and complete and accurately describe all material terms of the transactions. In the case of continuing transactions, if any of the material facts or representations described in the Application change, the amendment will cease to apply as of the date of such change. In the event of any such change, an application for a new amendment must be made to the Department. Signed at Washington, DC, this 17th day of January, 2007. Ivan L. Strasfeld, Director of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor. [FR Doc. E7-969 Filed 1-23-07; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF LABOR Employee Benefits Security Administration [Exemption Application No. D-11183] Prohibited Transaction Exemption 2007-01; Grant of Individual Exemptions Involving; The Plumbers and Pipefitters National Pension Fund (the Fund) AGENCY: Employee Benefits Security Administration, Labor. ACTION: Grant of Individual Exemptions. SUMMARY: This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). A notice was published in the Federal Register of the pendency before the Department of a proposal to grant such exemption. The notice set forth a summary of facts and representations contained in the application for exemption and referred interested persons to the application for a complete statement of the facts and representations. The application has been available for public inspection at the Department in Washington, DC. The notice also invited interested persons to submit comments on the requested exemption to the Department. In addition the notice stated that any interested person might submit a written request that a public hearing be held (where appropriate). The applicant has represented that it has complied with the requirements of the notification to interested persons. No requests for a hearing were received by the Department. Public comments were received by the Department as described in the granted exemption. The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor. Statutory Findings In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings: (a) The exemption is administratively feasible; (b) The exemption is in the interests of the plan and its participants and beneficiaries; and (c) The exemption is protective of the rights of the participants and beneficiaries of the plan. The Plumbers & Pipefitters National Pension Fund (the Fund) Located in Alexandria, VA [Prohibited Transaction Exemption (PTE) 2007-01; Exemption Application No. D-11183] Exemption The restrictions of sections 406(a)(1)(A) through (D) and 406(b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply, effective June 5, 2001, to the transactions described below involving the receipt by Diplomat Properties, Limited Partnership (DPLP or the Partnership) of certain services and products from the hotel management company, Westin Management Company East (after January 12, 2006, Westin Hotel Management, L.P.) (referred to collectively with its parent company, Starwood Hotels & Resorts Worldwide, Inc., as Starwood) and certain related entities (Related Companies), retained to operate the Partnership's principal asset, the Westin Diplomat Resort & Spa and the Diplomat Country Club and Spa (collectively, the Resort), provided that there is adherence to the material facts and representations contained in the Application and satisfaction of the applicable requirements described in Parts II and III below. I. Exemption Transactions (a) The provision of Centralized Services or Additional Services (collectively, the Proposed Services) to the Resort by Starwood or a Related Company; (b) The purchase of goods from Starwood or a Related Company in connection with the provision of Centralized Services or Additional Services (Purchase of Goods); and (c) The participation of the Resort in the Associate Room Discount Program (ARD Program), II. General Conditions (a) LaSalle Investment Management, Inc., Capital Hotel Management, LLC or a successor independent qualified professional asset manager (QPAM) for the Partnership, will represent the interests of the Partnership for all purposes with respect to the Proposed Services and the Purchase of Goods for the duration of the arrangement. The QPAM, on behalf of the Partnership, through negotiation and execution of the Operating Agreements and periodic monitoring of the Proposed Services and the Purchase of Goods, determines that: (1) Starwood's provision of Centralized Services and Additional Services to the Resort is in the best interests and protective of the participants and beneficiaries of the Plumbers & Pipefitters National Pension Fund (the Fund). (2) The terms under which the provision of Centralized Services and Additional Services are provided by Starwood to the Resort are at least as favorable to the Resort as those which the Partnership could obtain in arm's length transactions with unrelated parties in the relevant market; (3) The overall cost of services and products charged by Starwood to the Resort on a centralized basis is consistent with the amounts charged by other potential branded operators; and (4) The Centralized Services and Additional Services made available by Starwood and its affiliates are provided at prices and on terms at least as favorable to the Partnership as are available in the relevant market from unrelated parties and reflect the same prices and terms as are offered by Starwood and its affiliates to other properties managed by Starwood and its affiliates in the ordinary course of business. (b) Under the Operating Agreements, at all times that the Partnership is using Centralized Services and Additional Services, Starwood has acknowledged in writing: (1) Starwood's fiduciary status under section 3(21) (A) of the Act, with respect to the Resort; and (2) Starwood's indemnification of the Partnership with respect to any claims, demands, actions, penalties, suits and liabilities arising from Starwood's breach of fiduciary duty or violation of the Act. (c) On an annual basis, the QPAM, on behalf of the Partnership, approves the participation of the Resort in Centralized Services and Additional Services as part of its approval of the Resort's Annual Operating Plan. (d) During any year, subject to exceptions for certain Variable Expenses or Uncontrollable Expenses, Starwood does not, without the approval of the QPAM, incur any cost or expense or make any expenditure with respect to Centralized Services or Additional Services that would: (i) Cause the total expenditures for any line item in the Annual Operating Plan that includes payment of fees for Centralized Service or Additional Services to exceed the budgeted expense for that line item by more than 10%; (ii) cause total expenditures for any department of the Resort that pays fees for Centralized Service or Additional Services to exceed the budgeted expenses for that department by more than 5%; or (iii) cause the actual aggregate expenditures for operating expenses or capital expenditures to exceed the budget by more than 2%. (e) All purchases of products and services by Starwood from (i) itself, (ii) any person or entity directly or indirectly controlling, or controlled by, or under common control with Starwood, or (iii) any entity in which Starwood or its affiliates have any ownership, investment or management interest or responsibility are first approved by the QPAM (as part of the approval of the Annual Operating Plan or otherwise), except in cases of purchases of not more than $50,000 per annum where the price paid or charged for each such purchase and the terms thereof are lower than those that could be obtained from unrelated third parties in the applicable location. (f) The QPAM approves (as part of the approval of the Annual Operating Plan or otherwise) all contracts for Additional Services (and, to the extent applicable, Centralized Services) that provide for aggregate annual expenditure or revenue of more than $50,000 or have a term of more than one year. (g) The fees charged to the Resort for Centralized Services can be increased only on a system-wide basis (i.e., not just for the Resort). (h) The fees for Centralized Services are not greater than the lowest of: (i) The fees initially agreed upon by the parties in the Operating Agreement; (ii) Starwood's prevailing fee for the services or products as generally charged by Starwood or its affiliates to other properties managed by it; (iii) Starwood's cost, with no profit or mark-up (although it may include overhead); or (iv) 5% of gross revenues (exclusive of certain occupancy-related charges, such as third-party reservations fees and frequent guest program charges) of the hotel or country club, as applicable. (i) Starwood does not, with respect to any Centralized Service or Additional Service, solicit bids for the product or service in a manner that could result in a “right of first refusal” or other bidding advantage for the benefit of Starwood or its affiliates. (j) The QPAM, on behalf of the Partnership, has the right to opt out of any Centralized Services and to elect not to receive any Additional Services. (k) The QPAM, on behalf of the Partnership, retains the right to conduct audits of transactions entered into by Starwood with respect to Centralized Services and Additional Services, and, in the event that an audit uncovers a discrepancy related to any payment to Starwood or its affiliates, it must be corrected within ten days of notice being provided. (l) As part of its monitoring responsibilities, the QPAM, on behalf of the Partnership, has the right to meet with representatives of Starwood no less frequently than monthly (and otherwise at the request of the Partnership) for the purposes of reviewing each Annual Operating Plan, preparing, reviewing and updating rolling three-month forecasts for the Resort, and analyzing Starwood's actual performance against the Annual Operating Plan and the performance of the Resort relative to an applicable competitive set of resorts. (m) The QPAM, on behalf of the Partnership, retains the right to receive monthly interim and annual accounting reports that include a comparison of actual to budgeted expenses, and to have such reports audited by an independent accounting firm not more than once in any fiscal year. III. ARD Program Conditions (a)(1) Rooms are not made available to employees or associates of Starwood or a Related Company pursuant to the Associate Room Discount Program if the rooms could otherwise be sold to the public at a higher rate; and (2) In each case, the discounted rates fully cover the variable cost to the Resort for the use of the room and the cost to the Resort of the food, beverage and amenities. (b) Participation in the Associate Room Discount Program is offered by Starwood at all of its owned properties and properties that it manages. (c) The QPAM, acting on behalf of the Partnership, monitors the Resort's participation in the Associate Room Discount Program and retains the right to opt out of the Associate Room Discount Program. IV. Definitions (a) The term “Partnership” means Diplomat Properties, Limited Partnership whose principle asset is the Resort. The Plumbers & Pipefitters National Pension Fund (the Fund) is the sole member of Diplomat Properties, LLC, the General Partner of the Partnership. The QPAM is a non-member manager of the General Partner. (b) The term “QPAM” means LaSalle Investment Management, Inc. (LaSalle), Capital Hotel Management, LLC (CHM) or a successor qualified professional asset manager (as defined in section V(a) of Prohibited Transaction Class Exemption 84-14 at 49 FR 9494, March 13, 1984), as amended at 71 FR 5887 (February 3, 2006) or such other entity that is permitted by a U.S. Department of Labor individual exemption to function with powers similar to that of a qualified professional asset manager, that is exercising discretionary authority on behalf of the Fund with respect the activities of the Partnership and the Resort. (c) The term “affiliate” means: (1) Any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with the person; (2) Any officer, director, employee, relative, or partner of any such person; and (3) Any corporation or partnership of which such person is an officer, director, partner, or employee. (d) The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual. (e) The term “Related Company” means wholly or partially owned affiliates of Starwood (including, without limitation, affiliates of Starwood that are parties in interest by virtue of section 3(14)(G), (H) or (I) of the Act or disqualified persons by virtue of sections 4975(e)(2)(G), (H), or (I) of the Code) or affiliates or other entities in which Starwood has an ownership or other contractual interest. (f) The term “Additional Services” means any service or product other than Centralized Services: (1) Which is provided to the Resort by Starwood or a Related Company and is typically provided by Starwood or a Related Company on a property by property basis to properties operated by Starwood or an affiliate; and (2) for which Starwood or a Related Company receives a fee for providing such service or product that is based on the level of usage by the Resort. (g) The term “Annual Operating Plan” means the annual written operating plan submitted by Starwood to the Partnership no later than 90 days before the commencement of each fiscal year, which plan shall include monthly estimates and cover the operating budget (including departmental revenue and expenses, taxes, insurance and reserves), the capital budget, the marketing plan, the advertising program, working capital requirements, litigation and any other matter reasonably deemed appropriate by the QPAM, on behalf of the Partnership. (h) The term “Associate Room Discount Program” means the program maintained by Starwood with the approval of the QPAM pursuant to which discounted room rates and discounted food, beverage and other amenities at participating hotels are provided for Starwood associates or associates of participating Starwood franchise hotels worldwide and their immediate family. (i) The term “Centralized Services” means any service or product, including (without limitation) certain advertising, marketing and promotional activities (including frequent guest programs), reservations and distribution systems and networks, training and similar items, provided that: (i) The service or product is provided to the Resort by Starwood or a Related Company and is typically provided by Starwood or a Related Company on a central, regional, chain or brand basis, rather than specifically at an individual property; and (ii) Starwood or a Related Company receives a fee for providing the service or product that is based on the level of usage by the Resort. (j) The term “Operating Agreements” means, collectively, the parallel operating agreements, executed on June 5, 2001, between LaSalle and Starwood, as amended, and executed on May 1, 2006, between CHM and Starwood, as amended, to brand and operate the Resort's convention hotel as the “Westin Diplomat Resort and Spa,” and to brand and operate the country club as “The Diplomat Country Club and Spa,” as part of Starwood's Luxury Collection, and any successor operating agreements that may be in effect between the parties or successor parties from time to time. (k) The term “Variable Expense,” as set forth in the Operating Agreements, means operating expenses covered by the then-current Annual Operating Plan that reasonably fluctuate as a direct result of business volumes, including food and beverage expenses, other merchandise expenses, operating supply expenses, and energy costs. (l) The term “Uncontrollable Expenses,” as set forth in the Operating Agreements, means certain expenses the amount of which cannot be controlled by Starwood, which expenses include, without limitation, real estate taxes, utilities, insurance premiums, license and permit fees and charges provided in contracts entered into pursuant to the Operating Agreement, provided, that Starwood agrees to use commercially reasonable efforts to mitigate the expenses under such contracts; and the QPAM, on behalf of the Partnership, agrees that Starwood shall have the right to pay all Uncontrollable Expenses without reference to the amounts provided for in respect thereof in the approved Annual Operating Plan. For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption. SUPPLEMENTARY INFORMATION: On August 21, 2006, the Department published a notice in the Federal Register (71 FR 48768) of a proposed individual exemption (the Proposed Exemption). The application for this Proposed Exemption (Application) was submitted by LaSalle Investment Management, Inc. (LaSalle), as qualified professional asset manager (QPAM) for, and on behalf of, the Fund (Applicant). By letter dated April 25, 2006, LaSalle informed the Department that as of April 30, 2006, LaSalle was replaced by Capital Hotel Management, LLC (CHM) as the QPAM for the Fund. Independent Fiduciary Services, Inc. (IFS) is the independent named fiduciary of the Fund's account that holds the interests in the Partnership, the General Partner and other assets of the Fund invested in, or awaiting investment in, the Resort (the Diplomat Account). The Fund is funded solely by employer contributions negotiated under collective bargaining agreements with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (the Union). The Fund is administered by the Board of Trustees of the Fund, which has six individual members, three of whom are appointed by the Union and three of whom are appointed by contributing employers. The Applicant requested that the restrictions of sections 406(a)(1)(A) through (D) and 406(b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, not apply, effective June 5, 2001, to certain transactions involving the receipt by Diplomat Properties, Limited Partnership (DPLP or the Partnership) of certain services and products from the hotel management company, Westin Management Company East (after January 12, 2006, Westin Hotel Management, L.P.) (referred to collectively with its parent company, Starwood Hotels & Resorts Worldwide, Inc., as Starwood) and certain related entities (Related Companies), retained to operate the Partnership's principal asset, the Westin Diplomat Resort & Spa and the Diplomat Country Club and Spa (collectively, the Resort). Discussion and Comments Received Four comment letters from interested persons and one comment from Capital Hotel Management, LLC (CHM) as the QPAM for the Fund were received by the Department. The CHM comment provided further information on the proposed exemption and is discussed below. By letter dated November 20, 2006, CHM responded to the questions raised in the four comments received from interested persons. CHM noted that several commenters raised issues or asked questions regarding the propriety of the initial purchase of the Resort and the Applicant's development of it. The comments included statements alleging that members of the Board of Trustees of the Fund and contractors engaged in the Resort's development and operation received improper benefits. CHM stated that the Proposed Exemption in no way relates to the initial purchase of the Resort or the subsequent investment of the Fund's assets to develop and stabilize it. CHM explained that the exemption was requested because the QPAM concluded that Starwood's provision of Centralized Services, Additional Services and the Associate Room Discount Program will result in improved operating performance beyond that which can be provided by an operator of a single hotel or smaller group of hotels that does not provide those services and products. In addition, the QPAM concluded that (a) by centralizing the sourcing function, Starwood is also able to capture economies of scale designed to reduce the cost of the procurement function in the Resort and (b) the Resort's participation in these programs should result in increased efficiencies and lower operating costs. CHM asserts that none of the commenters has disputed any of these conclusions. CHM noted that one commenter stated that “not one of the UA Members of the UA PPNPF receive a discount on anything pertaining to the Diplomat Propertys [sic], why should someone else who are not owners of the Deplomat [sic] receive a discount”. CHM responded that, while the precise meaning of this comment is unclear, to the extent that the commenter is questioning the purpose of the Associate Room Discount Program, the QPAM concluded that it constitutes a relatively cheap employee benefit for employees of the Resort. CHM stated that, because this arrangement is typically offered by Starwood and all other international branded hotel and resort operators, denying this benefit to Resort employees would place the Resort at a distinct disadvantage vis-à-vis other competing hotels in its area with respect to hiring and retaining employees. Another comment questioned whether the Resort can make a profit and stated that the Partnership should sell the Resort immediately to the highest bidder. CHM responded that the purpose of this Application is not to determine whether a sale of the Resort is in the best interest of the Partnership or the Applicant, but to allow the Partnership to enter into arrangements with Starwood, the Resort's operator (through Westin Hotel Management, L.P.), to enhance the operation of the Resort while the Applicant (through the Partnership) owns it. Another comment stated that the Partnership does not need “additional managers to manage the ‘Westin Group’ ” and that the “Westin Group” should be replaced by managers that can manage the Resort properly and with a profit, such as the “Sheraton Group” or the “Hilton Group.” CHM responds that, as an initial matter, Sheraton hotels and Westin hotels are sister brands within the Starwood group of brand hotels. The Applicant submits that this comment is not relevant to the Proposed Exemption because the Application does not seek an exemption to permit the retention of CHM, the current investment manager and qualified professional asset manager for the Applicant's investment in the Resort. The retention of CHM as an investment manager is specifically contemplated by ERISA and does not constitute a prohibited transaction. Rather, it is CHM's involvement in the budget process and general oversight of Starwood as the Resort operator, which limits Starwood's discretion and will prevent abuse of the arrangement for Centralized Services, Additional Services and the Associate Room Discount Program. CHM notes that, in correspondence supplementing the Application, CHM confirmed to the Department that it is responsible for performing the actions ascribed to the QPAM as they relate to both the specific and general limitations on Starwood's activities described in Section II.F of the Application. In addition, CHM confirmed that, as described in Section III.A of the Application, changes to services and products or fees (as limited by the Operating Agreements) must be presented to and approved, if applicable, by CHM in connection with the annual budget process. CHM states that another commenter asked various questions regarding the retention of Starwood. The commenter asked the additional costs of another management company being involved, who owns Starwood, whether any pension officials or board members are associated in any way with Starwood or its affiliates, how the Proposed Exemption is going to help pension plan and union members and retirees, and who is the Starwood affiliate presently managing the Resort. CHM responded that, as described in the Application and subsequent correspondence from the QPAM, the hotel is currently managed by Westin Hotel Management, L.P.; a Delaware limited partnership and a wholly-owned subsidiary of Starwood Hotels & Resorts Worldwide, Inc., which is a public company. CHM asserts that no member of the Board of Trustees of the Fund is a director, officer or employee of Starwood or any Starwood ERISA Affiliate. CHM also states that the determination to retain Starwood was made not by the Board of Trustees but by LaSalle, CHM's predecessor as qualified professional asset manager. In addition, La Salle was, and CHM is, overseen by IFS, the Applicant's independent named fiduciary for the Diplomat Account. Starwood was selected after LaSalle, monitored by IFS, engaged in a comprehensive review of all relevant issues that included extensive due diligence, a competitive bidding process (which attracted many of the larger international hotel operating companies, including several well-known brands) and several interviews and on-site visits. The Applicant notes that the purpose of this Application is not to determine whether the retention of Starwood was appropriate or whether the overall fee arrangement with Starwood is reasonable, but rather whether Starwood, as operator of the Resort, will be permitted to engage in certain transactions that the QPAM has determined will inure to the financial benefit of the Partnership (and, therefore, the Fund). Accordingly, the Applicant believes that the overall cost of a management company being involved is immaterial to this Proposed Exemption. CHM states that of more significance is that the QPAM has, after careful consideration, concluded that Centralized Services and Additional Services are likely to result in benefits to the Resort that are both financial (i.e., utilizing these services and products will result in cost savings through aggregation of Starwood's purchasing and organizational power, and there are specific provisions in the Operator Agreements to assure that the Resort will benefit financially from such arrangements) and operational (i.e., value will be achieved through enhancements in quality and service resulting from the economies of scale and joint participation in these arrangements). Thus, the QPAM expects that Starwood's services and purchasing program, as well as its Associate Room Discount Program, will enhance the value of the Resort, resulting in a benefit to participants and beneficiaries of the Fund. Another comment inquired as to why certain individuals did not receive notice of the Proposed Exemption. CHM explains that the notice to interested persons, along with the supplemental statement required by Department Regulation 2570.43(b)(2) was sent to each member of the Board of Trustees of the Applicant and to anyone who commented with respect to PTE 99-46, PTE Application D-10960 or D-10971. CHM notes that, with respect to Applications D-10960 and 10971, the Department concluded that, in part due to the burden and expense of a wider distribution, it was reasonable and adequate under the circumstances to provide the notice to interested persons and supplemental statement only to persons who commented on PTE 99-46, the first exemption issued with respect to the Fund and the Diplomat Account. CHM believes that the Proposed Exemption is more technical and less sweeping than either of the prior exemptions the Department has granted regarding the Diplomat Account. It is unlikely that individuals, other than the Board of Trustees and those who commented on PTE 99-46, D-10960 or D-10971 would be concerned with the technical issues regarding the provision of the Centralized Services, Additional Services and Associate Room Discount Program to the Partnership by Starwood (or a Related Company). CHM concludes that the reasonableness of this assumption is reflected in the absence of comments from those who did receive notice that go to the substance of any of those issues. One commenter requested information concerning any “current or future hearings” before the Department on the Proposed Exemption. Regarding a public hearing, the Department does not believe that there are material factual issues relating to this exemption that were raised by the commenters which would require the convening of a hearing on the Proposed Exemption. Thus, the Department has determined not to hold a hearing. As previously noted in the Proposed Exemption, in considering exemptive relief for the transactions described herein, the Department placed a great deal of emphasis on the significant involvement of IFS, as named fiduciary, and LaSalle and CHM, as investment managers (the Independent Fiduciaries) and their considered and objective evaluation of the subject transactions. These Independent Fiduciaries have represented for the record that the retention of Starwood was in the interests of the Partnership and that the written agreement and the limitations contained therein permit the Independent Fiduciaries to effectively monitor and scrutinize the actions undertaken by Starwood. The initial and continued involvement of the Independent Fiduciaries on behalf of the Fund with respect to the transactions that are the subject of this exemption is a critical factor in the Department's determination to grant exemptive relief. In addition, as the Department has previously stated in PTE 2001-39, the fact that a transaction is the subject of an exemption under section 408(a) of the Act does not relieve a fiduciary from the general fiduciary responsibility provisions of section 404 of the Act. IFS' appointment of an investment manager and QPAM to manage the Diplomat Account and its ongoing determination to continue to retain LaSalle and CHM with respect to the management of the Diplomat Account are subject to section 404 of the Act. Both LaSalle and CHM, as investment managers for the Diplomat Account, retain fiduciary responsibility for the activities undertaken by Starwood on behalf of the Resort. In this regard, section 404(a)(1)(A) and (B) of ERISA requires that a fiduciary discharge his duties to a plan solely in the interests of the participants and beneficiaries, for the exclusive purpose of providing benefits to participants and beneficiaries and defraying reasonable administrative expenses, and in a prudent manner. Accordingly, it is the responsibility of the Fund's fiduciaries to operate the Resort in a manner designed to maximize the Fund's rate of return, consistent with their fiduciary duties under section 404 of the Act. The fiduciary obligation to act prudently requires, at a minimum, that the Independent fiduciaries conduct an ongoing objective, thorough and analytical critique of the management of the Diplomat Account. If the transactions that are the subject of this exemption result in activity that is not “prudent,” and not “solely in the interest” of the participants and beneficiaries of the Fund, the responsible fiduciaries of the Fund would be liable for any losses resulting from such a breach of fiduciary responsibility, even if the transactions involved do not constitute prohibited transactions under section 406 of ERISA. FOR FURTHER INFORMATION CONTACT: Wendy McColough of the Department, telephone (202) 693-8540. (This is not a toll-free number.) American Maritime Officers Safety & Education Plan (S&E Plan); American Maritime Officers Pension Plan; American Maritime Officers Vacation Plan; American Maritime Officers Medical Plan; and American Maritime Officers 401(k) Plan; (Collectively the AMO Plan(s)) Located in Dania Beach, Florida and Toledo, Ohio [Prohibited Transaction Exemption No. 2007-02; Application Nos. L-11148; D11149; L-11150; L-11151; D-11152; and D-11153] Exemption Section I The restrictions of sections 406(a) and 406(b)(1) and (b)(2) of the Act shall not apply to: (1) The S&E Plan entering into an arrangement with the American Maritime Officers (the Union), which is a party in interest with respect to the AMO Plans, for the Union to pay the S&E Plan, where appropriate and at the rate established by the independent fiduciary (the I/F), for the portion of the Union trustees' food and lodging provided by the S&E Plan that is attributable to attendance at certain Union meetings at the Dania Beach, Florida and Toledo, Ohio facilities (collectively, the Facilities); (2) the S&E Plan entering into an arrangement with the Union and certain contributing employers, who are parties in interest with respect to the AMO Plans, to pay the S&E Plan at a rate established by the I/F, for food and lodging provided by the S&E Plan at the Facilities for the representatives of the Union and the respective contributing employers that is attributable to attendance at various conferences; and (3) the S&E Plan entering into an arrangement with the governing bodies of the American Maritime Officers Joint Employment Committee, and the American Maritime Officers Service, who are parties in interest with respect to the AMO Plans, to pay the S&E Plan at a rate established by the I/F, for food and lodging provided by the S&E Plan at the Facilities. Section II The restrictions of sections 406(a) and 406(b)(1) and 406(b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to: (1) The AMO Plans sharing expenses based on an internal expense allocation model (the Allocation Model) for the provision of food and lodging by the S&E Plan at the Facilities to the AMO Plans' trustees (the Trustees); and (2) The AMO Plans, the JEC and AMOS sharing expenses based on the Allocation Model for the provision of food and lodging by the S&E Plan at the Facilities. Section III The restrictions of sections 406(a) and 406(b)(1) and (b)(2) of the Act shall not apply to: (1) Contributing employers contracting with the S&E Plan to provide one of its regular courses at a special time; and (2) The S&E Plan designing training programs or undertaking special research or modeling that is tailored to the needs of a particular contributing employer or its vessels. Conditions This exemption is subject to the following conditions: (a) Each AMO Plan will pay its appropriate share of expenses based on the Allocation Model; (b) The I/F retained by the AMO Plans will: (1) Make a determination of whether the proposed transactions (the Transaction(s)) are prudent and in the best interest of the relevant AMO Plan(s); (2) Establish the terms for each of the Transactions, including: (i) The price to be charged for the services provided pursuant to the Transactions; and (ii) The terms and conditions ensuring that the Transactions are fair to the involved AMO Plans; (3) Develop policies and guidelines for the implementation of the Transactions; (4) Monitor the Transactions on an on-going basis, including periodic reviews of the Transactions, to ensure compliance with the I/F policies and guidelines; (5) On a periodic basis, review the terms of each of the Transactions, including the fair market value of the services provided; and (6) Prepare an annual report, summarizing the Transactions for that year; (c) The costs associated with recordkeeping and all forms of independent oversight will be included in the daily rate established by the I/F for food and lodging provided by the S&E Plan at the Facilities; (d) An independent auditor will perform annual audits of all the AMO Plans to identify and reconcile any discrepancies regarding the recordkeeping involving the Transactions and provide an annual evaluation of all allocation models and produce approval letters explicitly affirming that the models are satisfactory; (e) The Room Master Software System will create an invoice for lodging and food service accounting functions and related services at the Facilities; (f) The AMO Plans' fiduciaries maintain or cause to be maintained, for a period of six years from the date of the covered transactions, such records as are necessary to enable the persons described in paragraph (g) to determine whether the conditions of this exemption were met, except that: (1) If the records necessary to enable the persons described in paragraph (g) to determine whether the conditions of the exemption have been met are lost or destroyed, due to circumstances beyond the control of the AMO Plans' fiduciaries, then no prohibited transaction will be considered to have occurred solely on the basis of the unavailability of those records; and (2) No party in interest, other than the AMO Plans' fiduciaries responsible for recordkeeping, shall be subject to the civil penalty that may be assessed under section 502(i) of the Act or to the taxes imposed by section 4975(a) and (b) of the Code if the records are not maintained or are not available for examination as required by paragraph (g) below; (g)(1) Except as provided below in paragraph (g)(2) and notwithstanding the provisions of section (a)(2) and (b) of section 504 of the Act, the records referred to above in paragraph (f) are unconditionally available for examination during normal business hours at their customary location by the following persons or an authorized representative thereof: (i) any duly authorized employee or representative of the Department or the Internal Revenue Service; (ii) any fiduciary of the AMO Plans or any duly authorized employee or representative of such fiduciary; or (iii) any contributing employer and any employee organization whose members are covered by the AMO Plans, or any authorized employee or representative of these entities; or (iv) any participant or beneficiary of the AMO Plans or the duly authorized employee or representative of such participant or beneficiary. (2) None of the persons described in paragraphs (ii), (iii) and (iv) of paragraph (g)(1) shall be authorized to examine trade secrets or commercial or financial information which is privileged or confidential. For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice of Proposed Exemption (the Notice) published on July 21, 2006 at 71 FR 41478. Written Comments The Department received three written comments from interested persons in response to the Notice. The Department forwarded copies of the comments to the applicant and requested that the applicant and the I/F address, in writing the various concerns raised by the commentators. The principal concern expressed by all three commentators is that the exemption would allow pension assets to be used for purposes other than retirement benefits for plan participants. Two of the commentators link this concern to the investigation of the AMO Plans by the U.S. Department of Justice. The applicant represents that one of the commentators' concerns that the exemption would allow pension plan assets to be used for a variety of inappropriate uses reflects a misunderstanding of the purpose of the exemption and the conditions under which it has been proposed. The applicant represents that the proposed exemption would allow the Plans' trustee meetings, union meetings, and other meetings or conferences involving the Union, employers who contribute to the Plans, the Joint Employment Committee, the American Maritime Officers Service, and professionals servicing the Plans to be held at the training and meeting facilities in Dania Beach, Florida, which is leased by the S&E Plan, and another facility owned by the S&E Plan in Toledo, Ohio. Under the proposed exemption, meeting participants or the groups they represent are required to pay their proportional share of lodging, catering and meeting costs—the costs would not fall on the facilities or the S&E Plan. Notably, the costs associated with these meetings are substantially less when lodging, food and meeting space are provided at the facilities than if provided by hotels or other conference facilities. Without the requested exemption, there would be legal constraints on the ability of the S&E Plan to contract with the other Plans to provide the necessary services and functions that would have to be scheduled at independent meeting facilities at a higher cost. In addition, the applicant represents that, as a condition contained in the Notice, the Plans have retained an independent fiduciary to ensure that the interests of the Plans and their participants are protected. Among other things, the independent fiduciary will monitor all transactions and activities permitted under the proposed exemption to ensure compliance with the conditions set out by the Department. The duties of the I/F will also include ensuring that the parties using the facilities pursuant to the proposed exemption pay a fair price for the services they receive. Two of the commentators suggest that the exemption should not be granted because of a Department of Justice investigation of the Plans. One of the two requested a hearing on this basis. The applicant represents that contrary to the concern expressed, the application is part of an effort to ensure ERISA compliance and the protection of plan assets. In response to the investigation, the AMO Plans formed a Special Committee, which retained Special Counsel to undertake an independent investigation and to make reports and recommendations for remedial action to the Special Committee. The Special Committee authorized Special Counsel to apply for the exemption on behalf of the AMO Plans as part of an ERISA compliance process. The I/F has reviewed the comments and represents that proper implementation and compliance with the conditions of the proposed exemption will be protective of the beneficiaries of the AMO Plans because (i) the use of the facilities by parties in interest will be monitored and linked to specific meeting schedules; (ii) costs associated with the use of the facilities by the parties in interest will be properly charged, with the AMO Plans being appropriately compensated for services provided; (iii) costs savings can inure to the beneficiaries as a result of the efficiency of having the multiple meetings associated with the Plans in a single lower cost environment; and (iv) the parties in interest will only be allowed to use the facilities if there is excess capacity so that beneficiaries who require training cannot be displaced. Furthermore, the I/F represents that the I/F's research and analysis results in the belief that usage of the facilities by parties in interest can be effectively monitored, costs can be properly allocated and efficiencies in the scheduling of the meetings can be attained which will result in cost savings to the beneficiaries. The Department has considered the entire record and has determined to grant the exemption as proposed. Further, the Department does not believe that there are material factual issues relating to the exemption that were raised by commentators which would require the convening of a hearing. Thus, the Department has determined not to hold a hearing on these matters. FOR FURTHER INFORMATION CONTACT: Khalif I. Ford of the Department, telephone (202) 693-8540. (This is not a toll-free number.) General Information The attention of interested persons is directed to the following: (1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which among other things require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries; (2) This exemption is supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and (3) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describes all material terms of the transaction which is the subject of the exemption. Signed at Washington, DC, this 17th day of January, 2007. Ivan Strasfeld, Director of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor. [FR Doc. E7-970 Filed 1-23-07; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF LABOR Occupational Safety And Health Administration [Docket No. ACCSH 2007-1] Advisory Committee on Construction Safety and Health (ACCSH); Request for Nominations AGENCY: Occupational Safety and Health Administration (OSHA), U.S. Department of Labor. ACTION: Request for nominations to serve on ACCSH. SUMMARY: The Assistant Secretary of Labor for Occupational Safety and Health invites interested parties to submit nominations for membership on ACCSH. DATES: Nominations for ACCSH must be submitted (postmarked, sent or received) by February 23, 2007. ADDRESSES: You may submit nominations for ACCSH, identified by OSHA Docket No, ACCSH 2007-1, by any of the following methods: Electronically: You may submit nominations electronically at http://www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions on-line for submitting comments. Facsimile: If your nomination, including attachments, is not longer than 10 pages, you may fax it to the OSHA Docket Office at (202) 693-1648. Mail, express delivery, hand delivery, messenger or courier service: Submit three copies of your nominations to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210; telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627). Deliveries (hand, express mail, messenger and courier service) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., e.t. Instructions: All nominations for ACCSH must include the Agency name and docket number for this Federal Register notice (Docket No. ACCSH 2007-1). All submissions in response to this Federal Register notice, including personal information provided, will be posted without change at http://www.regulations.gov. Because of security-related procedures, submitting nominations by regular mail may result in a significant delay in their receipt. Please contact the OSHA Docket Office (at the address above) for information about security procedures for submitting nominations by hand delivery, express delivery, and messenger or courier service. For additional information on submitting nominations, see the SUPPLEMENTARY INFORMATION section below. Docket: To read or download submissions, go to http://www.regulations.gov. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information (e.g., copyrighted material) is not publicly available to read or download through http://www.regulations.gov. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office at the address above. FOR FURTHER INFORMATION CONTACT: Mr. Michael M.X. Buchet, OSHA, Directorate of Construction—Office of Construction Services, Room N-3468, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone 202-693-2020; e-mail address buchet.michael@dol.gov. SUPPLEMENTARY INFORMATION: The Assistant Secretary of Labor for Occupational Safety and Health invites interested parties to submit nominations for membership on ACCSH. ACCSH is authorized under the authority granted by section 7 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 656), and section 107 of the Contract Work Hours and Safety Standards Act (Construction Safety Act) (40 U.S.C. 3701 et seq.). The function of ACCSH is to advise the Assistant Secretary on occupational safety and health standards and policy affecting the construction industry. ACCSH is a continuing advisory body and operates in compliance with the provisions of the Construction Safety Act, section 7 of the OSH Act, and the Federal Advisory Committee Act (5 U.S.C. App. 2), and regulations issued pursuant to those statutes (29 CFR part 1912, 41 CFR part 101-6 and 102-3). ACCSH meets two to four times per year for one or two days per meeting. ACCSH is composed of 15 members appointed by the Assistant Secretary to serve staggered two-year terms. The composition of ACCSH and the number of new members to be appointed at this time are as follows: • Five members who are qualified by experience and affiliation to present the viewpoint of employers in the construction industry. Three employer representatives will be appointed; • Five members who are similarly qualified to present the viewpoint of employees in the construction industry. Two employee representatives will be appointed; • Two representatives of State safety and health agencies. Two representatives will be appointed; • Two representatives qualified by knowledge and experience to make a useful contribution to the work of ACCSH, such as those who have professional or technical experience and competence with occupational safety and health in the construction industry. One public representative will be appointed; and • One representative designated by the Department of Health and Human Services, National Institute of Occupational Safety and Health (NIOSH). As mentioned, ACCSH members serve for a period of two years, unless the member becomes unable to serve, resigns or ceases to be qualified to serve, or is removed by the Secretary [29 CFR 1912.3(e)]. The NIOSH representative does not have a fixed term length. Qualified ACCSH members whose terms have expired may continue to serve until a successor is appointed and may serve successive terms. Any member absent from two consecutive meetings may be removed or replaced. The Department of Labor is committed to equal opportunity in the workplace and seeks broad-based and diverse ACCSH membership. Nominations for a specific category of ACCSH membership should come from groups or people within the category. Others are invited and encouraged to submit endorsements in support of particular nominees. Nominations must include the following information: (1) Nominee's resume or curriculum vitae, including prior membership on ACCSH or other relevant organizations or associations; (2) Categories of membership for which the nominee can serve; (3) A summary of background, experience and qualifications that makes the nominee well-suited for each of those particular categories of membership; (4) Articles or other documents the nominee has authored that indicate his or her knowledge, experience and expertise in occupational safety and health, particularly as it pertains to the construction industry; (5) The nominee's contact information (address, phone, e-mail); and (6) A written commitment from the nominee of his or her willingness to attend meetings regularly and participate in good faith, and attesting that the nominee has no apparent conflicts of interest that would preclude unbiased service on ACCSH. In addition to other relevant sources of information, the information received through the nomination process will assist the Assistant Secretary in making appointments to ACCSH. In selecting ACCSH members, the Assistant Secretary will consider individuals nominated in response to this Federal Register notice, as well as other qualified individuals. OSHA will publish the new ACCSH membership list in the Federal Register . Public Participation—Submission of Nominations and Access to Docket You may submit nominations (1) electronically at http://www.regulations.gov, which is the Federal eRulemaking Portal; (2) by facsimile (FAX); or (3) by hard copy. All comments, attachments and other material must identify the Agency name and the OSHA docket number (OSHA Docket No. ACCSH 2007-1). You may supplement electronic nominations by uploading document files electronically. If, instead, you wish to mail additional materials in reference to an electronic or fax submission, you must submit three copies to the OSHA Docket Office (see ADDRESSES section). The additional materials must clearly identify your electronic nomination by name, date, and docket number so OSHA can attach them to your nomination. Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of nominations. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-5627). Submissions are posted without change at http://www.regulations.gov. Therefore, OSHA cautions interested parties about submitting personal information such as social security numbers and date of birth. Although all submissions are listed in the http://www.regulations.gov index, some information (e.g., copyrighted material) is not publicly available to read or download through http://www.regulations.gov. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information on using the http://www.regulations.gov Web site to submit nominations and access the docket is available at the Web site's User Tips link. Contact the OSHA Docket Office for information about materials not available through the Web site and for assistance in using the internet to locate docket submissions. Electronic copies of this Federal Register document are available at http://www.regulations.gov. This document, as well as news releases and other relevant information, also are available at OSHA's Web page at http://www.osha.gov. Authority and Signature Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by section 7 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 656), section 107 of the Contract Work Hours and Safety Standards Act (Construction Safety Act) (40 U.S.C. 3701 et seq .), and Secretary of Labor's Order No. 5-2002 (67 FR 65008). Signed at Washington, DC this 19th day of January, 2007. Edwin G. Foulke, Jr., Assistant Secretary of Labor. [FR Doc. E7-1013 Filed 1-23-07; 8:45 am] BILLING CODE 4510-26-P NATIONAL COUNCIL ON DISABILITY Sunshine Act Meetings Type: Quarterly Meeting. Date and Time: January 29-31, 2007, 9 a.m.-5 p.m. Location: Town and Country Resort and Convention Center, 500 Hotel Circle North, San Diego, California. Status: January 29, 2007, 9 a.m.-3:45 p.m.—Open. January 29, 2007, 3:45 p.m-4:30 p.m.—Closed. January 30-31, 2007, 9 a.m.-5 p.m.—Open. Agenda: Public Comments; Department of Defense, Computer/Electronic Accommodations Program Presentation; Veterans' Panel Presentation and Discussion; Livable Communities Panel Presentation; Foster Care Panel Presentation; Reports from the Chairperson and the Acting Co-Executive Directors; Team Reports; Unfinished Business; New Business; Announcements; Adjournment Sunshine Act Meeting Contact: Mark S. Quigley, Director of Communications, NCD, 1331 F Street, NW., Suite 850, Washington, DC 20004; 202-272-2004 (voice), 202-272-2074 (TTY), 202-272-2022 (fax). Agency Mission: NCD is an independent Federal agency making recommendations to the President and Congress to enhance the quality of life for all Americans with disabilities and their families. NCD is composed of 15 members appointed by the President and confirmed by the U.S. Senate. Accommodations: Those needing reasonable accommodations should notify NCD immediately. Language Translation: In accordance with E.O. 13166, Improving Access to Services for Persons with Limited English Proficiency, those people with disabilities who are limited English proficient and seek translation services for these meetings should notify NCD immediately. Dated: January 18, 2007. Mark S. Quigley, Acting Co-Executive Director. [FR Doc. 07-324 Filed 1-22-07; 2:21 pm]