Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Proposed Rules 61753 

1 Indexed Annuities and Certain Other Insurance 

Contracts, Securities Act Release No. 8933 (June 25, 

2008) [73 FR 37752 (July 1, 2008)]. 

Since this is a routine matter that will 

only affect air traffic procedures and air 

navigation, it is certified that this rule, 

when promulgated, will not have a 

significant economic impact on a 

substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the United States Code. 

Subtitle 1, Section 106 describes the 

authority of the FAA Administrator. 

Subtitle VII, Aviation Programs, 

describes in more detail the scope of the 

agency’s authority. 

This rulemaking is promulgated 

under the authority described in 

Subtitle VII, Part A, Subpart 1, Section 

40103, Sovereignty and use of airspace. 

Under that section, the FAA is charged 

with prescribing regulations to ensure 

the safe and efficient use of the 

navigable airspace. This regulation is 

within the scope of that authority 

because it proposes to remove Class E 

airspace at the Metlakatla Airport, AK, 

and represents the FAA’s continuing 

effort to safely and efficiently use the 

navigable airspace. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend 14 CFR part 71 as 

follows: 

PART 71—DESIGNATION OF CLASS A, 

CLASS B, CLASS C, CLASS D, AND 

CLASS E AIRSPACE AREAS; 

AIRWAYS; ROUTES; AND REPORTING 

POINTS 

1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

2. The incorporation by reference in 

14 CFR 71.1 of Federal Aviation 

Administration Order 7400.9R, Airspace 

Designations and Reporting Points, 

signed August 15, 2007, and effective 

September 15, 2007, is to be amended 

as follows: 

* * * * * 

Paragraph 6005 Class E Airspace Extending 

Upward From 700 Feet or More Above the 

Surface of the Earth. 

* * * * * 

AAL AK E5 Metlakatla, AK [Revoked] 

* * * * * 

Issued in Anchorage, AK, on October 6, 

2008. 

Anthony M. Wylie, 

Manager, Alaska Flight Services Information 

Area Group. 

[FR Doc. E8–24689 Filed 10–16–08; 8:45 am] 

BILLING CODE 4910–13–P 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Parts 230 and 240 

[Release Nos. 33–8976, 34–58769; File No. 

S7–14–08] 

RIN 3235–AK16 

Indexed Annuities and Certain Other 

Insurance Contracts 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: The Securities and Exchange 

Commission is reopening the period for 

public comment on new rules that it 

originally proposed in Securities Act 

Release No. 8933 (June 25, 2008) [73 FR 

37752 (July 1, 2008)]. The Commission 

proposed a rule that would, if adopted, 

define the terms ‘‘annuity contract’’ and 

‘‘optional annuity contract’’ under the 

Securities Act of 1933. The proposed 

rule is intended to clarify the status 

under the federal securities laws of 

indexed annuities. The Commission 

also proposed to exempt insurance 

companies from filing reports under the 

Securities Exchange Act of 1934 with 

respect to indexed annuities and other 

securities that are registered under the 

Securities Act, provided that the 

securities are regulated under state 

insurance law, the issuing insurance 

company and its financial condition are 

subject to supervision and examination 

by a state insurance regulator, and the 

securities are not publicly traded. 

DATES: Comments should be received on 

or before November 17, 2008. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

Electronic Comments 

• Use the Commission’s Internet 

comment form (http://www.sec.gov/ 

rules/proposed.shtml); 

• Send an e-mail to rulecomments@sec.gov. Please include File 

No. S7–14–08 on the subject line; or 

• Use the Federal eRulemaking Portal 

(http://www.regulations.gov). Follow the 

instructions for submitting comments. 

Paper Comments 

• Send paper comments in triplicate 

to Florence E. Harmon, Acting 

Secretary, Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File No. 

S7–14–08. This file number should be 

included on the subject line if e-mail is 

used. To help us process and review 

your comments more efficiently, please 

use only one method. The Commission 

will post all comments on the 

Commission’s Internet Web site (http:// 

www.sec.gov). Comments are also 

available for public inspection and 

copying in the Commission’s Public 

Reference Room, 100 F Street, NE., 

Washington, DC 20549, on official 

business days between the hours of 10 

a.m. and 3 p.m. All comments received 

will be posted without change; we do 

not edit personal identifying 

information from submissions. You 

should submit only information that 

you wish to make available publicly. 

FOR FURTHER INFORMATION CONTACT: 

Keith E. Carpenter, Senior Special 

Counsel, Office of Disclosure and 

Insurance Product Regulation, Division 

of Investment Management, at (202) 

551–6795, Securities and Exchange 

Commission, 100 F Street, NE., 

Washington, DC 20549–5720. 

SUPPLEMENTARY INFORMATION: The 

Securities and Exchange Commission 

(‘‘Commission’’) is reopening the period 

for public comment on a proposed rule 

that would define the terms ‘‘annuity 

contract’’ and ‘‘optional annuity 

contract’’ under the Securities Act of 

1933. The proposed rule is intended to 

clarify the status under the federal 

securities laws of indexed annuities, 

under which payments to the purchaser 

are dependent on the performance of a 

securities index. The Commission is 

also reopening the period for public 

comment on a proposed rule that 

would, if adopted, exempt insurance 

companies from filing reports under the 

Securities Exchange Act of 1934 with 

respect to indexed annuities and other 

securities that are registered under the 

Securities Act, provided that the 

securities are regulated under state 

insurance law, the issuing insurance 

company and its financial condition are 

subject to supervision and examination 

by a state insurance regulator, and the 

securities are not publicly traded. The 

rules were proposed on June 25, 2008,1


jlentini on PROD1PC65 with PROPOSALS
61754 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Proposed Rules 

2Comments on the proposal are available at 

http://www.sec.gov/comments/s7-14-08/ 

s71408.shtml. 

and the comment period initially closed 

on September 10, 2008. 

The Commission has received 

numerous letters, including from state 

insurance commissioners, members of 

Congress, and others, requesting that the 

comment period be extended.2 In 

general, these commenters indicated 

that an extension would help them 

analyze the proposal and prepare 

meaningful comments. In order to 

provide additional time for the public to 

thoroughly consider the proposal, and 

in view of the significant continuing 

public interest in the proposal, the 

Commission believes that it is 

appropriate to reopen the comment 

period. Accordingly, we will reopen the 

comment period for an additional 30 

days. 

By the Commission. 

Dated: October 10, 2008. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–24625 Filed 10–16–08; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Part 30 

[Docket No. FR–5081–P–01] 

RIN 2501–AD23 

Civil Money Penalties: Certain 

Prohibited Conduct 

AGENCY: Office of General Counsel, 

HUD. 

ACTION: Proposed rule. 

SUMMARY: This rule would revise HUD’s 

regulations that govern the imposition 

of civil money penalties. Specifically, 

the rule would revise the definition of 

‘‘material or materially’’ and add a 

definition of ‘‘ability to pay,’’ which is 

one factor used in determining the 

appropriateness of the amount of any 

civil money penalty. Additionally, the 

proposed rule would require 

respondents, in their responses to the 

prepenalty notice, to specifically 

address the factors used in determining 

the appropriateness and amount of civil 

money penalty. This rule would also 

allow Government Counsel to file 

complaints on behalf of the Mortgagee 

Review Board and departmental 

officials. Finally, this rule would make 

other minor clarifying changes. 

DATES: Comment Due Date: December 

16, 2008. 

ADDRESSES: Interested persons are 

invited to submit comments regarding 

this rule to the Regulations Division, 

Office of General Counsel, Department 

of Housing and Urban Development, 

451 7th Street, SW., Room 10276, 

Washington, DC 20410–0500. Interested 

persons also may submit comments 

electronically through The Federal 

eRulemaking Portal at 

www.regulations.gov. HUD strongly 

encourages commenters to submit 

comments electronically in order to 

make them immediately available to the 

public. Commenters should follow the 

instructions provided on that site to 

submit comments electronically. 

Facsimile (FAX) comments are not 

acceptable. In all cases, communications 

must refer to the docket number and 

title. All comments and 

communications submitted to HUD will 

be available for public inspection and 

copying between 8 a.m. and 5 p.m. 

weekdays at the above address. Due to 

security measures at the HUD 

Headquarters building, an advance 

appointment to review the public 

comments must be scheduled by calling 

the Regulations Division at 202–708– 

3055 (this is not a toll-free number). 

Copies of all comments submitted are 

available for inspection and 

downloading at www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Dane Narode, Acting Associate General 

Counsel for Program Enforcement, 

Department of Housing and Urban 

Development, 1250 Maryland Avenue, 

SW., Suite 200, Washington, DC 20024– 

0500; telephone number 202–708–2350 

(this is not a toll-free number), or e-mail 

address Dane.M.Narode@hud.gov. 

Hearing- or speech-impaired individuals 

may access the telephone number listed 

above by calling the toll-free Federal 

Information Relay Service at 800–877– 

8339. 

SUPPLEMENTARY INFORMATION: 

I. Proposed Rule 

HUD’s civil money penalties 

regulations are located in 24 CFR part 

30. In general, 24 CFR part 30 outlines 

the procedures and requirements that 

concern violations, prepenalty notices, 

and complaints. This proposed rule 

would make several revisions in 24 CFR 

part 30. 

First, ‘‘ability to pay’’ is one of the 

factors used in determining the 

appropriateness of civil money penalties 

under § 30.80(c). To provide more 

clarity with respect to this factor, HUD 

proposes to define ‘‘ability to pay’’ in 

§ 30.10. As defined, ‘‘ability to pay’’ 

would be determined based on the 

respondent’s resources available 

presently and prospectively, from which 

the Department could ultimately recover 

the total award. The definition would 

also allow for the consideration of 

respondent’s resources to be based on 

historical evidence. This would include 

an analysis of the resources available to 

the respondent from which the 

respondent could pay the judgment in 

one lump sum, over time, or at some 

point in the future. This analysis would 

also examine the resources from which 

the Department could obtain enforced 

collection or administrative offset. A 

second modification would revise the 

definition of ‘‘Material’’ or ‘‘Materially’’ 

to mean anything having the natural 

tendency or potential to influence, or, 

considering the totality of the 

circumstances, in some significant 

respect or to some significant degree. To 

rise to the level of material, acts or 

conduct would not be required to 

actually influence a decision or course 

of action by the Department, but merely 

to have the potential to do so. Therefore, 

this revised definition would not 

require ‘‘but for’’ or actual causation for 

an act or conduct to be material. 

Moreover, after revision, the definition 

of material would no longer require 

consideration of any factor listed in 

§ 30.80, which are generally to be used 

only to determine the amount of the 

civil money penalty imposed, if any, but 

would permit the Department to 

introduce evidence of the relevant 

factors to establish the significance of a 

violation in light of the totality of the 

circumstances. 

Additionally, this proposed rule 

would revise § 30.35, the section that 

lists the actions authorized against a 

mortgagee or lender. Currently, 

§ 30.35(a)(14) includes failure to comply 

with ‘‘the terms of a settlement 

agreement with HUD’’ among the list of 

actions for which the Mortgagee Review 

Board may initiate a civil money 

penalty action. The proposed revision 

would delete this provision as a basis 

upon which HUD may initiate a civil 

money penalty action against a 

mortgagee or lender. 

HUD is seeking to clarify some 

apparent ambiguity in §§ 30.45 and 

30.68. First, this proposed rule would 

revise § 30.45(d) to clarify that the 

violation of programmatic procedures 

and standards are indicators of 

unsatisfactory management. In addition, 

this proposed rule would modify 

§ 30.68(b) to clarify that any violation of 

a housing assistance payments contract 

may result in the imposition of a civil 

money penalty. HUD has learned that 

some confusion exists about whether 

the violations in § 30.68(b)(1) and (b)(2) 

are exhaustive. The proposed rule 


jlentini on PROD1PC65 with PROPOSALS