782
HR 4 PP
‘‘(2) the alcohol credit determined with respect to
the taxpayer for the taxable year under section
40(a)(2).’’.
(c) CONFORMING AMENDMENT.—Section 1388 (relat-
ing to definitions and special rules for cooperative organi-
zations) is amended by adding at the end the following new
subsection:
‘‘(k) CROSS REFERENCE.—For provisions relating to
the apportionment of the alcohol fuels credit between cooper-
ative organizations and their patrons, see section
40(g)(6).’’.
(d) EFFECTIVE DATE.—The amendments made by this
section shall apply to taxable years beginning after the date
of the enactment of this Act.
SEC. 2006. ALL ALCOHOL FUELS TAXES TRANSFERRED TO
HIGHWAY TRUST FUND.
(a) IN GENERAL.—Section 9503(b)(4) (relating to cer-
tain taxes not transferred to Highway Trust Fund) is
amended—
(1) by adding ‘‘or’’ at the end of subparagraph
(C),
(2) by striking the comma at the end of subpara-
graph (D)(iii) and inserting a period, and
(3) by striking subparagraphs (E) and (F).
783
HR 4 PP
(b) EFFECTIVE DATE.—The amendments made by this
section shall apply to taxes imposed after September 30,
2003.
SEC. 2007. INCREASED FLEXIBILITY IN ALCOHOL FUELS
TAX CREDIT.
(a) ALCOHOL
FUELS
CREDIT
MAY
BE
TRANS-
FERRED.—Section 40 (relating to alcohol used as fuel) is
amended by adding at the end the following new subsection:
‘‘(i) CREDIT MAY BE TRANSFERRED.—
‘‘(1) IN
GENERAL.—A taxpayer may transfer
any credit allowable under paragraph (1) or (2) of
subsection (a) with respect to alcohol used in the pro-
duction of ethyl tertiary butyl ether through an as-
signment to a qualified assignee. Such transfer may
be revoked only with the consent of the Secretary.
‘‘(2) QUALIFIED
ASSIGNEE.—For purposes of
this subsection, the term ‘qualified assignee’ means
any person who—
‘‘(A) is liable for taxes imposed under sec-
tion 4081,
‘‘(B) is required to register under section
4101, and
‘‘(C) obtains a certificate from the taxpayer
described in paragraph (1) which identifies the
amount of alcohol used in such production.
784
HR 4 PP
‘‘(3) REGULATIONS.—The Secretary shall pre-
scribe such regulations as necessary to insure that
any credit described in paragraph (1) is claimed once
and not reassigned by a qualified assignee.’’.
(b) ALCOHOL FUELS CREDIT MAY BE TAKEN AGAINST
MOTOR FUELS TAX LIABILITY.—
(1) IN GENERAL.—Subpart C of part III of sub-
chapter A of chapter 32 (relating to special provisions
applicable to petroleum products) is amended by add-
ing at the end the following new section:
‘‘SEC. 4104. CREDIT AGAINST MOTOR FUELS TAXES.
‘‘(a) ELECTION TO USE CREDIT AGAINST MOTOR
FUELS TAXES.—There is hereby allowed as a credit against
the taxes imposed by section 4081, any credit allowed under
paragraph (1) or (2) of section 40(a) with respect to alcohol
used in the production of ethyl tertiary butyl ether to the
extent—
‘‘(1) such credit is not claimed by the taxpayer
or the qualified assignee under section 40(i) as a
credit under section 40, and
‘‘(2) the taxpayer or qualified assignee elects to
claim such credit under this section.
‘‘(b) ELECTION IRREVOCABLE.—Any election under
subsection (a) shall be irrevocable.
785
HR 4 PP
‘‘(c) REQUIRED STATEMENT.—Any return claiming a
credit pursuant to an election under this section shall be
accompanied by a statement that the credit was not, and
will not, be claimed on an income tax return.
‘‘(d) REGULATIONS.—The Secretary shall prescribe
such regulations as necessary to avoid the claiming of dou-
ble benefits and to prescribe the taxable periods with respect
to which the credit may be claimed.’’.
(2) CONFORMING AMENDMENT.—Section 40(c) is
amended by striking ‘‘or section 4091(c)’’ and insert-
ing ‘‘section 4091(c), or section 4104’’.
(3) CLERICAL AMENDMENT.—The table of sec-
tions for subpart C of part III of subchapter A of
chapter 32 is amended by adding at the end the fol-
lowing new item:
‘‘Sec. 4104. Credit against motor fuels taxes.’’.
(c) EFFECTIVE DATE.—The amendments made by this
section shall take effect on and after the date of the enact-
ment of this Act.
SEC. 2008. INCENTIVES FOR BIODIESEL.
(a) CREDIT FOR BIODIESEL USED AS A FUEL.—
(1) IN GENERAL.—Subpart D of part IV of sub-
chapter A of chapter 1 (relating to business related
credits), as amended by this Act, is amended by in-
serting after section 40A the following new section:
786
HR 4 PP
‘‘SEC. 40B. BIODIESEL USED AS FUEL.
‘‘(a) GENERAL RULE.—For purposes of section 38, the
biodiesel fuels credit determined under this section for the
taxable year is an amount equal to the biodiesel mixture
credit.
‘‘(b) DEFINITION OF BIODIESEL MIXTURE CREDIT.—
For purposes of this section—
‘‘(1) BIODIESEL MIXTURE CREDIT.—
‘‘(A) IN GENERAL.—The biodiesel mixture
credit of any taxpayer for any taxable year is
the sum of the products of the biodiesel mixture
rate for each qualified biodiesel mixture and the
number of gallons of such mixture of the tax-
payer for the taxable year.
‘‘(B) BIODIESEL MIXTURE RATE.—For pur-
poses of subparagraph (A), the biodiesel mixture
rate for each qualified biodiesel mixture shall
be—
‘‘(i) in the case of a mixture with only
biodiesel V, 1 cent for each whole percentage
point (not exceeding 20 percentage points)
of biodiesel V in such mixture, and
‘‘(ii) in the case of a mixture with bio-
diesel NV, or a combination of biodiesel V
and biodiesel NV, 0.5 cent for each whole
percentage point (not exceeding 20 percent-
787
HR 4 PP
age points) of such biodiesel in such mix-
ture.
‘‘(2) QUALIFIED BIODIESEL MIXTURE.—
‘‘(A) IN GENERAL.—The term ‘qualified bio-
diesel mixture’ means a mixture of diesel and
biodiesel V or biodiesel NV which—
‘‘(i) is sold by the taxpayer producing
such mixture to any person for use as a
fuel, or
‘‘(ii) is used as a fuel by the taxpayer
producing such mixture.
‘‘(B) SALE OR USE MUST BE IN TRADE OR
BUSINESS, ETC.—
‘‘(i) IN GENERAL.—Biodiesel V or bio-
diesel NV used in the production of a quali-
fied biodiesel mixture shall be taken into
account—
‘‘(I) only if the sale or use de-
scribed in subparagraph (A) is in a
trade or business of the taxpayer, and
‘‘(II) for the taxable year in which
such sale or use occurs.
‘‘(ii) CERTIFICATION
FOR
BIODIESEL
V.—Biodiesel V used in the production of a
qualified biodiesel mixture shall be taken
788
HR 4 PP
into account only if the taxpayer described
in subparagraph (A) obtains a certification
from the producer of the biodiesel V which
identifies the product produced.
‘‘(C) CASUAL OFF-FARM PRODUCTION NOT
ELIGIBLE.—No credit shall be allowed under this
section with respect to any casual off-farm pro-
duction of a qualified biodiesel mixture.
‘‘(c) COORDINATION WITH EXEMPTION FROM EXCISE
TAX.—The amount of the credit determined under this sec-
tion with respect to any biodiesel V shall, under regulations
prescribed by the Secretary, be properly reduced to take into
account any benefit provided with respect to such biodiesel
V solely by reason of the application of section 4041(n) or
section 4081(f).
‘‘(d) DEFINITIONS AND SPECIAL RULES.—For pur-
poses of this section—
‘‘(1) BIODIESEL V DEFINED.—The term ‘biodiesel
V’ means the monoalkyl esters of long chain fatty
acids derived solely from virgin vegetable oils for use
in compressional-ignition (diesel) engines. Such term
shall include esters derived from vegetable oils from
corn, soybeans, sunflower seeds, cottonseeds, canola,
crambe, rapeseeds, safflowers, flaxseeds, rice bran, and
mustard seeds.
789
HR 4 PP
‘‘(2) BIODIESEL NV DEFINED.—The term ‘bio-
diesel nv’ means the monoalkyl esters of long chain
fatty acids derived from nonvirgin vegetable oils or
animal fats for use in compressional-ignition (diesel)
engines.
‘‘(3) REGISTRATION REQUIREMENTS.—The terms
‘biodiesel V’ and ‘biodiesel NV’ shall only include a
biodiesel which meets—
‘‘(i) the registration requirements for
fuels and fuel additives established by the
Environmental Protection Agency under
section 211 of the Clean Air Act (42 U.S.C.
7545), and
‘‘(ii) the requirements of the American
Society of Testing and Materials D6751.
‘‘(2) BIODIESEL MIXTURE NOT USED AS A FUEL,
ETC.—
‘‘(A) IMPOSITION OF TAX.—If—
‘‘(i) any credit was determined under
this section with respect to biodiesel V or
biodiesel NV used in the production of any
qualified biodiesel mixture, and
‘‘(ii) any person—
‘‘(I) separates such biodiesel from
the mixture, or
790
HR 4 PP
‘‘(II) without separation, uses the
mixture other than as a fuel,
then there is hereby imposed on such person
a tax equal to the product of the biodiesel
mixture rate applicable under subsection
(b)(1)(B) and the number of gallons of the
mixture.
‘‘(B) APPLICABLE LAWS.—All provisions of
law, including penalties, shall, insofar as appli-
cable and not inconsistent with this section,
apply in respect of any tax imposed under sub-
paragraph (A) as if such tax were imposed by
section 4081 and not by this chapter.
‘‘(3) PASS-THRU IN THE CASE OF ESTATES AND
TRUSTS.—Under regulations prescribed by the Sec-
retary, rules similar to the rules of subsection (d) of
section 52 shall apply.
‘‘(e) ELECTION TO HAVE BIODIESEL FUELS CREDIT
NOT APPLY.—
‘‘(1) IN
GENERAL.—A taxpayer may elect to
have this section not apply for any taxable year.
‘‘(2) TIME FOR MAKING ELECTION.—An election
under paragraph (1) for any taxable year may be
made (or revoked) at any time before the expiration
of the 3-year period beginning on the last date pre-
791
HR 4 PP
scribed by law for filing the return for such taxable
year (determined without regard to extensions).
‘‘(3) MANNER OF MAKING ELECTION.—An elec-
tion under paragraph (1) (or revocation thereof) shall
be made in such manner as the Secretary may by reg-
ulations prescribe.’’.
‘‘(f) TERMINATION.—This section shall not apply to
any fuel sold after December 31, 2005.’’.
(2) CREDIT
TREATED
AS
PART
OF
GENERAL
BUSINESS
CREDIT.—Section 38(b), as amended by
this Act, is amended by striking ‘‘plus’’ at the end of
paragraph (15), by striking the period at the end of
paragraph (16) and inserting ‘‘, plus’’, and by add-
ing at the end the following new paragraph:
‘‘(17) the biodiesel fuels credit determined under
section 40B(a).’’.
(3) CONFORMING AMENDMENTS.—
(A) Section 39(d), as amended by this Act,
is amended by adding at the end the following
new paragraph:
‘‘(12) NO
CARRYBACK
OF
BIODIESEL
FUELS
CREDIT BEFORE JANUARY 1, 2003.—No portion of the
unused business credit for any taxable year which is
attributable to the biodiesel fuels credit determined
792
HR 4 PP
under section 40B may be carried back to a taxable
year beginning before January 1, 2003.’’.
(B) Section 196(c) is amended by striking
‘‘and’’ at the end of paragraph (9), by striking
the period at the end of paragraph (10), and by
adding at the end the following new paragraph:
‘‘(11) the biodiesel fuels credit determined under
section 40B(a).’’.
(C) Section 6501(m), as amended by this
Act, is amended by inserting ‘‘40B(e),’’ after
‘‘40(f),’’.
(D) The table of sections for subpart D of
part IV of subchapter A of chapter 1, as amend-
ed by this Act, is amended by adding after the
item relating to section 40A the following new
item:
‘‘Sec. 40B. Biodiesel used as fuel.’’.
(4) EFFECTIVE DATE.—The amendments made
by this subsection shall apply to taxable years begin-
ning after December 31, 2002.
(b) REDUCTION OF MOTOR FUEL EXCISE TAXES ON
BIODIESEL V MIXTURES.—
(1) IN
GENERAL.—Section 4081 (relating to
manufacturers tax on petroleum products) is amended
by adding at the end the following new subsection:
793
HR 4 PP
‘‘(f) BIODIESEL V MIXTURES.—Under regulations pre-
scribed by the Secretary—
‘‘(1) IN GENERAL.—In the case of the removal or
entry of a qualified biodiesel mixture with biodiesel V,
the rate of tax under subsection (a) shall be the other-
wise applicable rate reduced by the biodiesel mixture
rate (if any) applicable to the mixture.
‘‘(2) TAX PRIOR TO MIXING.—
‘‘(A) IN GENERAL.—In the case of the re-
moval or entry of diesel fuel for use in producing
at the time of such removal or entry a qualified
biodiesel mixture with biodiesel V, the rate of tax
under subsection (a) shall be the rate determined
under subparagraph (B).
‘‘(B) DETERMINATION OF RATE.—For pur-
poses of subparagraph (A), the rate determined
under this subparagraph is the rate determined
under paragraph (1), divided by a percentage
equal to 100 percent minus the percentage of bio-
diesel V which will be in the mixture.
‘‘(3) DEFINITIONS.—For purposes of this sub-
section, any term used in this subsection which is also
used in section 40B shall have the meaning given
such term by section 40B.
795
HR 4 PP
mixture rate (as defined in section 40B(b)(1)(B)) with re-
spect to such fuel.’’.
(3) EFFECTIVE DATE.—The amendments made
by this subsection shall apply to any fuel sold after
December 31, 2002, and before January 1, 2006.
(c) HIGHWAY TRUST FUND HELD HARMLESS.—There
are hereby transferred (from time to time) from the funds
of the Commodity Credit Corporation amounts determined
by the Secretary of the Treasury to be equivalent to the re-
ductions that would occur (but for this subsection) in the
receipts of the Highway Trust Fund by reason of the
amendments made by this section.
SEC. 2009. CREDIT FOR TAXPAYERS OWNING COMMERCIAL
POWER TAKEOFF VEHICLES.
(a) IN GENERAL.—Subpart D of part IV of subchapter
A of chapter 1 (relating to business-related credits), as
amended by this Act, is amended by adding at the end the
following new section:
‘‘SEC. 45N. COMMERCIAL POWER TAKEOFF VEHICLES CRED-
IT.
‘‘(a) GENERAL RULE.—For purposes of section 38, the
amount of the commercial power takeoff vehicles credit de-
termined under this section for the taxable year is $250 for
each qualified commercial power takeoff vehicle owned by
796
HR 4 PP
the taxpayer as of the close of the calendar year in which
or with which the taxable year of the taxpayer ends.
‘‘(b) DEFINITIONS.—For purposes of this section—
‘‘(1) QUALIFIED COMMERCIAL POWER TAKEOFF
VEHICLE.—The term ‘qualified commercial power
takeoff vehicle’ means any highway vehicle described
in paragraph (2) which is propelled by any fuel sub-
ject to tax under section 4041 or 4081 if such vehicle
is used in a trade or business or for the production
of income (and is licensed and insured for such use).
‘‘(2) HIGHWAY VEHICLE DESCRIBED.—A high-
way vehicle is described in this paragraph if such ve-
hicle is—
‘‘(A) designed to engage in the daily collec-
tion of refuse or recyclables from homes or busi-
nesses and is equipped with a mechanism under
which the vehicle’s propulsion engine provides
the power to operate a load compactor, or
‘‘(B) designed to deliver ready mixed con-
crete on a daily basis and is equipped with a
mechanism under which the vehicle’s propulsion
engine provides the power to operate a mixer
drum to agitate and mix the product en route to
the delivery site.
797
HR 4 PP
‘‘(c) EXCEPTION FOR VEHICLES USED BY GOVERN-
MENTS, ETC.—No credit shall be allowed under this section
for any vehicle owned by any person at the close of a cal-
endar year if such vehicle is used at any time during such
year by—
‘‘(1) the United States or an agency or instru-
mentality thereof, a State, a political subdivision of
a State, or an agency or instrumentality of one or
more States or political subdivisions, or
‘‘(2) an organization exempt from tax under sec-
tion 501(a).
‘‘(d) DENIAL OF DOUBLE BENEFIT.—The amount of
any deduction under this subtitle for any tax imposed by
subchapter B of chapter 31 or part III of subchapter A of
chapter 32 for any taxable year shall be reduced (but not
below zero) by the amount of the credit determined under
this subsection for such taxable year.
‘‘(e) TERMINATION.—This section shall not apply with
respect to any calendar year after 2004.’’.
(b) CREDIT MADE PART
OF GENERAL BUSINESS
CREDIT.—Subsection (b) of section 38 (relating to general
business credit), as amended by this Act, is amended by
striking ‘‘plus’’ at the end of paragraph (22), by striking
the period at the end of paragraph (23) and inserting ‘‘,
798
HR 4 PP
plus’’, and by adding at the end the following new para-
graph:
‘‘(24) the commercial power takeoff vehicles cred-
it under section 45N(a).’’.
(c) CLERICAL AMENDMENT.—The table of sections for
subpart D of part IV of subchapter A of chapter 1, as
amended by this Act, is amended by adding at the end the
following new item:
‘‘Sec. 45N. Commercial power takeoff vehicles credit.’’.
(d) REGULATIONS.—Not later than January 1, 2005,
the Secretary of the Treasury, in consultation with the Sec-
retary of Energy, shall by regulation provide for the method
of determining the exemption from any excise tax imposed
under section 4041 or 4081 of the Internal Revenue Code
of 1986 on fuel used through a mechanism to power equip-
ment attached to a highway vehicle as described in section
45N(b)(2) of such Code, as added by subsection (a).
(e) EFFECTIVE DATE.—The amendments made by this
section shall apply to taxable years beginning after the date
of the enactment of this Act.
SEC. 2010. MODIFICATIONS TO THE INCENTIVES FOR AL-
TERNATIVE VEHICLES AND FUELS.
(a) MODIFICATION
TO
NEW
QUALIFIED
HYBRID
MOTOR
VEHICLE
CREDIT.—The 
table 
in 
section
30B(c)(2)(A) of the Internal Revenue Code of 1986, as
799
HR 4 PP
added by this Act, is amended by striking ‘‘5 percent’’ and
inserting ‘‘4 percent’’.
(b) MODIFICATIONS TO EXTENSION OF DEDUCTION
FOR CERTAIN REFUELING PROPERTY.—
(1) IN GENERAL.—Subsection (f) of section 179A
of the Internal Revenue Code of 1986 is amended to
read as follows:
‘‘(f) TERMINATION.—This section shall not apply to
any property placed in service—
‘‘(1) in the case of property relating to hydrogen,
after December 31, 2011, and
‘‘(2) in the case of any other property, after De-
cember 31, 2007.’’.
(2) 
EXTENSION
OF
PHASEOUT.—Section
179A(b)(1)(B) of such Code, as amended by section
606(a) of the Job Creation and Worker Assistance Act
of 2002, is amended—
(A) by striking ‘‘calendar year 2004’’ in
clause (i) and inserting ‘‘calendar years 2004
and 2005 (calendar years 2004 through 2009 in
the case of property relating to hydrogen) ’’,
(B) by striking ‘‘2005’’ in clause (ii) and
inserting ‘‘2006 (calendar year 2010 in the case
of property relating to hydrogen)’’, and
800
HR 4 PP
(C) by striking ‘‘2006’’ in clause (iii) and
inserting ‘‘2007 (calendar year 2011 in the case
of property relating to hydrogen)’’.
(3) EFFECTIVE DATE.—The amendments made
by this subsection shall apply to property placed in
service after December 31, 2003, in taxable years end-
ing after such date.
(c) MODIFICATION TO CREDIT FOR INSTALLATION OF
ALTERNATIVE FUELING STATIONS.—Subsection (l) of sec-
tion 30C of the Internal Revenue Code of 1986, as added
by this Act, is amended to read as follows:
‘‘(l) TERMINATION.—This section shall not apply to
any property placed in service—
‘‘(1) in the case of property relating to hydrogen,
after December 31, 2011, and
‘‘(2) in the case of any other property, after De-
cember 31, 2007.’’.
(d) EFFECTIVE DATE.—Except as provided in sub-
section (b)(3), the amendments made by this section shall
apply to property placed in service after September 30,
2002, in taxable years ending after such date.
801
HR 4 PP
TITLE XXI—CONSERVATION AND
ENERGY EFFICIENCY PROVI-
SIONS
SEC. 2101. CREDIT FOR CONSTRUCTION OF NEW ENERGY
EFFICIENT HOME.
(a) IN GENERAL.—Subpart D of part IV of subchapter
A of chapter 1 (relating to business related credits), as
amended by this Act, is amended by adding at the end the
following new section:
‘‘SEC. 45G. NEW ENERGY EFFICIENT HOME CREDIT.
‘‘(a) IN GENERAL.—For purposes of section 38, in the
case of an eligible contractor, the credit determined under
this section for the taxable year is an amount equal to the
aggregate adjusted bases of all energy efficient property in-
stalled in a qualifying new home during construction of
such home.
‘‘(b) LIMITATIONS.—
‘‘(1) MAXIMUM CREDIT.—
‘‘(A) IN GENERAL.—The credit allowed by
this section with respect to a qualifying new
home shall not exceed—
‘‘(i) in the case of a 30-percent home,
$1,250, and
‘‘(ii) in the case of a 50-percent home,
$2,000.
802
HR 4 PP
‘‘(B) 30- OR 50-PERCENT HOME.—For pur-
poses of subparagraph (A)—
‘‘(i) 30-PERCENT
HOME.—The term
‘30-percent home’ means a qualifying new
home which is certified to have a projected
level of annual heating and cooling energy
consumption, measured in terms of average
annual energy cost to the homeowner, which
is at least 30 percent less than the annual
level of heating and cooling energy con-
sumption of a reference qualifying new
home constructed in accordance with the
standards of chapter 4 of the 2000 Inter-
national Energy Conservation Code, or a
qualifying new home which is a manufac-
tured home which meets the applicable
standards of the Energy Star program
managed jointly by the Environmental Pro-
tection Agency and the Department of En-
ergy.
‘‘(ii) 50-PERCENT
HOME.—The term
‘50-percent home’ means a qualifying new
home which is certified to have a projected
level of annual heating and cooling energy
consumption, measured in terms of average
803
HR 4 PP
annual energy cost to the homeowner, which
is at least 50 percent less than such annual
level of heating and cooling energy con-
sumption.
‘‘(C) PRIOR
CREDIT
AMOUNTS
ON
SAME
HOME TAKEN INTO ACCOUNT.—If a credit was
allowed under subsection (a) with respect to a
qualifying new home in 1 or more prior taxable
years, the amount of the credit otherwise allow-
able for the taxable year with respect to that
home shall not exceed the amount under clause
(i) or (ii) of subparagraph (A) (as the case may
be), reduced by the sum of the credits allowed
under subsection (a) with respect to the home for
all prior taxable years.
‘‘(2) COORDINATION WITH REHABILITATION AND
ENERGY CREDITS.—For purposes of this section—
‘‘(A) the basis of any property referred to in
subsection (a) shall be reduced by that portion of
the basis of any property which is attributable to
the rehabilitation credit (as determined under
section 47(a)) or to the energy percentage of en-
ergy property (as determined under section
48(a)), and
804
HR 4 PP
‘‘(B) expenditures taken into account under
either section 47 or 48(a) shall not be taken into
account under this section.
‘‘(c) DEFINITIONS.—For purposes of this section—
‘‘(1) ELIGIBLE CONTRACTOR.—The term ‘eligible
contractor’ means the person who constructed the
qualifying new home, or in the case of a manufac-
tured home which conforms to Federal Manufactured
Home Construction and Safety Standards (24 C.F.R.
3280), the manufactured home producer of such home.
‘‘(2) ENERGY EFFICIENT PROPERTY.—The term
‘energy efficient property’ means any energy efficient
building envelope component, and any energy effi-
cient heating or cooling equipment which can, indi-
vidually or in combination with other components,
meet the requirements of this section.
‘‘(3) QUALIFYING NEW HOME.—The term ‘quali-
fying new home’ means a dwelling—
‘‘(A) located in the United States,
‘‘(B) the construction of which is substan-
tially completed after the date of the enactment
of this section, and
‘‘(C) the first use of which after construction
is as a principal residence (within the meaning
of section 121).