[Federal Register Volume 79, Number 162 (Thursday, August 21, 2014)]
[Rules and Regulations]
[Pages 49429-49431]
[FR Doc No: 2014-19823]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. FAA-2013-0908; Special Conditions No. 25-538-SC]

Special Conditions: Airbus Model A350-900 Series Airplane;
Airplane Level of Safety Provided by Composite Fuel-Tank Structure:
Post-Crash Fire Survivability

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final special conditions.

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SUMMARY: These special conditions are issued for Airbus Model A350-900
series airplanes. These airplanes will have a novel or unusual design
feature associated with the post-crash fire survivability of composite
fuel tanks. The applicable airworthiness regulations do not contain
adequate or appropriate safety standards for this design feature. These
special conditions contain the additional safety standards that the
Administrator considers necessary to establish a level of safety
equivalent to that established by the existing airworthiness standards.

DATES: Effective date: September 22, 2014.

FOR FURTHER INFORMATION CONTACT: Doug Bryant, Propulsion and Mechanical
Systems, ANM-112, Transport Airplane Directorate, Aircraft
Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-
3356; telephone<PHONE_NUMBER>; facsimile<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Background

    On August 25, 2008, Airbus applied for a type certificate for their
new Model A350-900 series airplane. Later, Airbus requested, and the
FAA approved, an extension to the application for FAA type
certification to November 15, 2009. The Model A350-900 series airplane
has a conventional layout with twin wing-mounted Rolls-Royce Trent XWB
engines. It features a twin-aisle, 9-abreast, economy-class layout, and
accommodates side-by-side placement of LD-3 containers in the cargo
compartment. The basic Model A350-900 series airplane configuration
accommodates 315 passengers in a standard two-class arrangement. The
design cruise speed is Mach 0.85 with a maximum take-off weight of
602,000 lbs.
    The Model A350-900 series airplane will be the second large,
transport-category airplane certificated with composite wing and fuel-
tank structure that may be exposed to the direct effects of post-crash
ground, or under-wing, fuel-fed fires. Although the FAA has previously
approved fuel tanks made of composite materials located in the
horizontal stabilizer of some airplanes, the composite wing structure
of the Model A350-900 series airplane will incorporate a new fuel-tank
construction into service.
    Advisory Circular (AC) 20-107A, Composite Aircraft Structure, under
the topic of flammability, states:
    The existing requirements for flammability and fire protection of
aircraft structure attempt to minimize the hazard to the occupants in
the event ignition of flammable fluids or vapors occurs. The use of
composite structure should not decrease this existing level of safety.
    Pertinent to the wing structure, post-crash-fire passenger
survivability is dependent on the time available for passenger
evacuation prior to fuel-tank breach or structural failure. Structural
failure can be a result of degradation in load-carrying capability in
the upper or lower wing surface caused by a fuel-fed ground fire.
Structural failure can also be a result of over-pressurization caused
by ignition of fuel vapors inside the fuel tank.
    The inherent capability of aluminum to resist fire has been
considered by the FAA in development of the current regulations. Title
14, Code of Federal Regulations (14 CFR) part 25 Chapter 1, Section
1.1, General Definitions, defines ``fire resistant'' to mean, with
respect to sheet or structural members, the capacity to withstand heat
associated with fire at least as well as aluminum alloy does in
dimensions appropriate for the purpose for which those materials are
used.
    Note that aluminum alloy is identified as the performance standard
for fire resistance, although no thickness or heat intensities are
defined. Based on the performance of aluminum alloy, the definition of
``fire resistance'' was later defined, for testing of other materials
in AC 20-135, as the capability to withstand a 2000 [deg]F flame for
five minutes.
    The FAA has historically issued rules with the assumption that the
material of construction for wing and fuselage would be aluminum. As a
representative case, 14 CFR 25.963 was issued as a result of a large,
fuel-fed fire following the failures of fuel-tank access doors caused
by uncontained engine failures. During the subsequent Aviation
Rulemaking Advisory Committee (ARAC) harmonization process, the
structures group attempted to harmonize Sec.  25.963 regarding the
impact-and-fire resistance of the fuel-tank access panels. Discussions
between the FAA and the European Aviation Safety Agency (EASA),
formerly the European Joint Aviation Authorities (JAA), ensued
regarding the need for fire resistance of the fuel-tank access panels.
The EASA position was that the FAA requirement for the access panels to
be fire resistant, when the surrounding wing structure was not required
to be fire resistant, was inconsistent, and that the access panels only
needed to be as fire resistant as the surrounding tank structure. The
FAA position stated that the fuel-tank access-panel fire-resistance
requirement should be retained, and that, long-term, a minimum
requirement should be created for the wing skin itself. Both
authorities recognized that existing aluminum wing structure provided
an acceptable level of safety. Further rulemaking has not yet been
pursued.
    As with previous Airbus airplane designs with under-wing-mounted
engines, the wing tanks and center tanks are located in proximity to
the passengers and near the engines. Past experience indicates that
post-crash survivability is greatly influenced by the size and
intensity of any fire that occurs. The ability of aluminum wing
surfaces, wetted by fuel on their interior surface, to withstand post-
crash fire conditions, has been demonstrated by tests conducted at the
FAA William J.

Hughes Technical Center.\1\ Results of these tests have verified
adequate dissipation of heat across wetted aluminum fuel-tank surfaces
so that localized hot spots do not occur, thus minimizing the threat of
explosion. This inherent capability of aluminum to dissipate heat also
allows the wing lower surface to retain its load-carrying
characteristics during a fuel-fed ground fire, and significantly delay
wing collapse or burn-through for a time interval that usually exceeds
evacuation times. In addition, as an aluminum fuel tank is heated with
significant quantities of fuel inside, fuel vapor accumulates in the
ullage space, exceeding the upper flammability limit relatively quickly
and thus reducing the threat of a fuel-tank explosion prior to fuel-
tank burn-through. Service history of conventional aluminum airplanes
has shown that fuel-tank explosions caused by ground fires have been
rare on airplanes configured with flame arrestors in the fuel-tank vent
lines. Fuel tanks constructed with composite materials may or may not
have equivalent capability.
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    \1\ Hill, R., and Johnson, G.R., ``Investigation of Aircraft
Fuel Tank Explosions and Nitrogen Inerting Requirements During
Ground Fires,'' FAA Report DOT/FAA/RD-75-119, October 1975.
Available via the FAA Technical Center Web site for Fire Safety at
http://www.fire.tc.faa.gov/.
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    Due to the inherent properties provided by aluminum skin and
structure, current regulations may not be adequate as they were
developed, and have evolved under the assumption that wing construction
would be of aluminum materials. Inherent properties of aluminum, with
respect to fuel tanks and fuel-fed fires, are as follows:
     Aluminum is highly thermally conductive and readily
transmits the heat of a fuel-fed external fire to fuel in the tank.
This has the benefit of rapidly driving the fuel-tank ullage to exceed
the upper flammability limit prior to burn-through of the fuel-tank
skin, or heating of the wing upper surface above the auto-ignition
temperature, thus greatly reducing the threat of fuel-tank explosion.
     Aluminum panels at thicknesses previously used in wing
lower surfaces of large, transport-category airplanes have been fire
resistant as defined in 14 CFR 1.1 and AC 20-135.
     Heat capacity of aluminum and fuel prevents burn-through
or wing collapse for a time interval that generally exceeds the
passenger evacuation time.

Type Certification Basis

    Under 14 CFR 21.17, Airbus must show that the Model A350-900 series
airplane meets the applicable provisions of 14 CFR part 25, as amended
by Amendments 25-1 through 25-129.
    If the Administrator finds that the applicable airworthiness
regulations (i.e., 14 CFR part 25) do not contain adequate or
appropriate safety standards for the Model A350-900 series airplane
because of a novel or unusual design feature, special conditions are
prescribed under Sec.  21.16.
    Special conditions are initially applicable to the model for which
they are issued. Should the type certificate for that model be amended
later to include any other model that incorporates the same or similar
novel or unusual design feature, the special conditions would also
apply to the other model under Sec.  21.101.
    The FAA issues special conditions, as defined in 14 CFR 11.19,
under Sec.  11.38, and they become part of the type-certification basis
under Sec.  21.17(a)(2).
    In addition to the applicable airworthiness regulations and special
conditions, the Model A350-900 series airplane must comply with the
fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the
noise-certification requirements of 14 CFR part 36. The FAA must issue
a finding of regulatory adequacy under section 611 of Public Law 92-
574, the ``Noise Control Act of 1972.''

Novel or Unusual Design Features

    The Airbus Model A350-900 series airplane will incorporate the
following novel or unusual design feature: Composite fuel tanks.

Discussion

    The extensive use of composite materials in the design of the A350-
900 airplane wing and fuel-tank structure is considered a major change
from conventional and traditional methods of construction, as this will
be only the second large, transport-category airplane design to be
certificated with this level of composite material for these purposes.
The applicable airworthiness regulations do not contain specific
standards for post-crash fire-safety performance of wing and fuel-tank
skin or structure.
    To provide the same level of safety as exists with conventional
airplane construction, Airbus must demonstrate that the Model A350-900
series airplane has sufficient post-crash survivability to enable
occupants to safely evacuate in the event that the wings are exposed to
a large, fuel-fed fire. Factors in fuel-tank survivability are the
structural integrity of the wing and tank; flammability of the tank;
burn-through resistance of the wing skin; and the presence of auto-
ignition threats during exposure to a fire. The FAA assessed post-crash
survival time during the adoption of Amendment 25-111 for fuselage
burn-through protection. Studies conducted by, and on behalf of, the
FAA indicated that, following a survivable accident, prevention of
fuselage burn-through for approximately 5 minutes can significantly
enhance survivability.\2\
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    \2\ Cherry, R. and Warren, K. ``Fuselage Burnthrough Protection
for Increased Postcrash Occupant Survivability: Safety Benefit
Analysis Based on Past Accidents, ``FAA Report DOT/FAA/AR-99/57,
September 1999 and R G W Cherry & Associates Limited, ``A Benefit
Analysis for Cabin Water Spray Systems and Enhanced Fuselage
Burnthrough Protection,'' FAA Report DOT/FAA/AR-02/49, April 7,
2003.
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    There is little benefit in requiring the design to prevent wing-
skin burn-through beyond five minutes, due to the effects of the fuel
fire itself on the rest of the airplane. That assessment was carried
out based on accidents involving airplanes with conventional fuel
tanks, and considering the ability of ground personnel to rescue
occupants. In addition, AC 20-135 indicates that, when aluminum is used
for fuel tanks, the tank should withstand the effects of fire for 5
minutes without failure. Therefore, to be consistent with existing
capability and related requirements, the Model A350-900 series airplane
fuel tanks must be capable of resisting a post-crash fire for at least
5 minutes. In demonstrating compliance, Airbus must address a range of
fuel loads from minimum to maximum, as well as any other critical fuel
load.
    These special conditions contain the additional safety standards
that the Administrator considers necessary to establish a level of
safety equivalent to that established by the existing airworthiness
standards.

Discussion of Comments

    Notice of Proposed Special Conditions No. 25-13-24-SC for Airbus
Model A350-900 series airplanes was published in the Federal Register
on January 8, 2014 (79 FR 1334). No comments were received, and the
special conditions are adopted as proposed.

Applicability

    As discussed above, these special conditions apply to Airbus Model
A350-900 series airplanes. Should Airbus apply later for a change to
the type certificate to include another model incorporating the same
novel or unusual design feature, the special conditions would apply to
that model as well under the provisions of Sec.  21.101.

List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping
requirements.

    The authority citation for these special conditions is as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701, 44702 and 44704.

The Special Conditions

0
Accordingly, pursuant to the authority delegated to me by the
Administrator, the following special conditions are issued as part of
the type-certification basis for Airbus Model A350-900 series
airplanes.
    In addition to complying with 14 CFR part 25 regulations governing
the fire-safety performance of the fuel tanks, wings, and nacelle, the
Airbus Model A350-900 series airplane must demonstrate acceptable post-
crash survivability in the event the wings are exposed to a large fuel-
fed ground fire. Airbus must demonstrate that the wing and fuel-tank
design can endure an external fuel-fed pool fire for at least five
minutes. This must be demonstrated for minimum fuel loads (not less
than reserve fuel levels) and maximum fuel loads (maximum-range fuel
quantities), and other identified critical fuel loads. Considerations
must include fuel-tank flammability, burn-through resistance, wing
structural-strength retention properties, and auto-ignition threats
during a ground-fire event for the required time duration.

    Issued in Renton, Washington, on August 1, 2014.
Jeffrey E. Duven,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2014-19823 Filed 8-20-14; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 88, Number 156 (Tuesday, August 15, 2023)]
[Notices]
[Pages 55484-55485]
[FR Doc No: 2023-17497]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34984; File No. 813-00408]

Apollo Global Management, Inc.

August 10, 2023.
AGENCY: Securities and Exchange Commission (``Commission'' or ``SEC'').

ACTION: Notice.

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    Notice of application for an order (``Order'') under sections 6(b)
and 6(e) of the Investment Company Act of 1940 (the ``Act'') granting
an exemption from all provisions of the Act, except sections 9, 17, 30,
and 36 through 53, and the rules and regulations under the Act (the
``Rules and Regulations''). With respect to sections 17(a), (d), (e),
(f), (g), and (j) of the Act, sections 30(a), (b), (e), and (h) of the
Act and the Rules and Regulations and rule 38a 1 under the Act,
applicants request a limited exemption as set forth in the application.

Summary of Application:  Applicants request an order to exempt certain
limited partnerships, limited liability companies, corporations,
business or statutory trusts or other entities (``Partnership'') formed
for the benefit of eligible employees of Apollo Global Management, Inc.
and its affiliates from certain provisions of the Act. Each
Partnership, and each series thereof (to the extent such series is an
issuer for purposes of the Act), will be an ``employees' securities
company'' within the meaning of section 2(a)(13) of the Act.

Applicant:  Apollo Global Management, Inc.

Filing Dates:  The application was filed on May 16, 2022 and amended on
November 2, 2022, April 13, 2023, July 19, 2023, and July 28, 2023.

Hearing or Notification of Hearing:  An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing on any application by emailing
the SEC's Secretary at [email protected] and serving the
Applicants with a copy of the request by email, if an email address is
listed for the relevant Applicant below, or personally or by mail, if a
physical address is listed for the relevant Applicant below. Hearing
requests should be received by the Commission by 5:30 p.m. on September
5, 2023, and should be accompanied by proof of service on applicants,
in the form of an affidavit or, for lawyers, a certificate of service.
Pursuant to rule 0-5 under the Act, hearing requests should state the
nature of the writer's interest, any facts bearing upon the
desirability of a hearing on the matter, the reason for the request,
and the issues contested. Persons who wish to be notified of a hearing
may request notification by emailing the Commission's Secretary at
[email protected].

ADDRESSES: The Commission: [email protected]. Applicant: Dennis
Pereira, [email protected].

FOR FURTHER INFORMATION CONTACT: Jessica D. Leonardo, Senior Counsel,
or Marc Mehrespand, Branch Chief, at<PHONE_NUMBER> (Division of
Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: For Applicants' representations, legal
analysis, and conditions, please refer to Applicants' fourth amended
and restated application, dated July 28, 2023, which may be obtained
via the Commission's website by searching for the file number at the
top of this document, or for an Applicant using the Company name search
field, on the SEC's EDGAR system.
    The SEC's EDGAR system may be searched at, http://www.sec.gov/edgar/searchedgar/legacy/companysearch.html. You may also call the
SEC's Public Reference Room at<PHONE_NUMBER>.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-17497 Filed 8-14-23; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 224 (Tuesday, November 20, 2012)]
[Notices]
[Pages 69615-69616]
[FR Doc No: 2012-28153]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. IC12-16-000]

Commission Information Collection Activities (FERC-715); Comment
Request

AGENCY: Federal Energy Regulatory Commission.

ACTION: Comment request.

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SUMMARY: In compliance with the requirements of the Paperwork Reduction
Act of 1995, 44 U.S.C. 3507(a)(1)(D), the Federal Energy Regulatory
Commission (Commission or FERC) is submitting the information
collection FERC-715 (Annual Transmission Planning and Evaluation
Report) to the Office of Management and Budget (OMB) for review of the
information collection requirements. Any interested person may file
comments directly with OMB and should address a copy of those comments
to the Commission as explained below. The Commission issued a Notice in
the Federal Register (77 FR 53877, 9/4/2012) requesting public
comments. FERC received no comments on the FERC-715 and is making this
notation in its submittal to OMB.

DATES: Comments on the collection of information are due by December
20, 2012.

ADDRESSES: Comments filed with OMB, identified by the OMB Control No.
1902-0171, should be sent via email to the Office of Information and
Regulatory Affairs<EMAIL_ADDRESS>Attention: Federal Energy
Regulatory Commission Desk Officer. The Desk Officer may also be
reached via telephone at<PHONE_NUMBER>.
    A copy of the comments should also be sent to the Federal Energy
Regulatory Commission, identified by the Docket No. IC12-16-000, by
either of the following methods:
     eFiling at Commission's Web Site: http://www.ferc.gov/docs-filing/efiling.asp.
     Mail/Hand Delivery/Courier: Federal Energy Regulatory
Commission, Secretary of the Commission, 888 First Street NE.,
Washington, DC 20426.
    Instructions: All submissions must be formatted and filed in
accordance with submission guidelines at: http://www.ferc.gov/help/submission-guide.asp. For user assistance contact FERC Online Support
by email at<EMAIL_ADDRESS>or by phone at:<PHONE_NUMBER>
(toll-free), or<PHONE_NUMBER> for TTY.
    Docket: Users interested in receiving automatic notification of
activity in this docket or in viewing/downloading comments and
issuances in this docket may do so at http://www.ferc.gov/docs-filing/docs-filing.asp.

FOR FURTHER INFORMATION CONTACT: Ellen Brown may be reached by email at
<EMAIL_ADDRESS>by telephone at<PHONE_NUMBER>, and by fax at
(202) 273-0873.

SUPPLEMENTARY INFORMATION:
    Title: FERC-715, Annual Transmission Planning and Evaluation
Report.
    OMB Control No.: 1902-0171.
    Type of Request: Three-year extension of the FERC-715 information
collection requirements with no changes to the reporting requirements.
    Abstract: Acting under FPA Section 213,\1\ FERC requires each
transmitting utility that operates integrated transmission system
facilities rated above 100 kilovolts (kV) to submit annually:
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    \1\ 16 U.S.C. 8241.
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     Contact information for the FERC-715;
     Base case power flow data (if it does not participate in
the development and use of regional power flow data);
     Transmission system maps and diagrams used by the
respondent for transmission planning;
     A detailed description of the transmission planning
reliability criteria used to evaluate system performance for time
frames and planning horizons used in regional and corporate planning;
     A detailed description of the respondent's transmission
planning assessment practices (including, but not limited to, how
reliability criteria are applied and the steps taken in

performing transmission planning studies); and
     A detailed evaluation of the respondent's anticipated
system performance as measured against its stated reliability criteria
using its stated assessment practices.
    The FERC-715 enables the Commission to use the information as part
of their regulatory oversight functions which includes:
     The review of rates and charges;
     The disposition of jurisdictional facilities;
     The consolidation and mergers;
     The adequacy of supply and;
     Reliability of nation's transmission grid
    The FERC-715 enables the Commission to facilitate and resolve
transmission disputes. Additionally, the Office of Electric Reliability
(OER) uses the FERC-715 data to help protect and improve the
reliability and security of the nation's bulk power system. OER
oversees the development and review of mandatory reliability and
security standards and ensures compliance with the approved standards
by the users, owners, and operators of the bulk power system. OER also
monitors and addresses issues concerning the nation's bulk power system
including assessments of resource adequacy and reliability.
    Without the FERC-715 data, the Commission would be unable to
evaluate planned projects or requests related to transmission.
    Type of Respondents: Integrated transmission system facilities
rated at or above 100 kilovolts (kV).
    Estimate of Annual Burden: \2\ The Commission estimates the total
Public Reporting Burden for this information collection as:
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    \2\ Burden is defined as the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. For
further explanation of what is included in the information
collection burden, reference 5 Code of Federal Regulations 1320.3.

                   FERC-715 (IC12-16-000)--Annual Transmission Planning and Evaluation Report
----------------------------------------------------------------------------------------------------------------
                        Number of responses      Total number of      Average burden hours     Estimated total
Number of respondents      per respondent           responses             per response          annual burden
(A)                                  (B)          (A) x (B) = (C)                  (D)                      (C)
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              110                      1                    110                    160                 17,600
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    The total estimated annual cost burden to respondents is $2,995,016
[17,600 hours / 2,080 \3\ hours/year = 8.46153 * $143,540/year \4\ =
$1,214,569.23].
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    \3\ 2080 hours/year = 40 hours/week * 52 weeks/year.
    \4\ Average annual salary per employee in 2012.
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    Comments: Comments are invited on: (1) Whether the collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information will have practical
utility; (2) the accuracy of the agency's estimate of the burden and
cost of the collection of information, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility and clarity of the information collection; and (4) ways to
minimize the burden of the collection of information on those who are
to respond, including the use of automated collection techniques or
other forms of information technology.

    Dated: November 14, 2012.
Kimberly D. Bose,
Secretary.
[FR Doc. 2012-28153 Filed 11-19-12; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: April 15, 2008 (Volume 73, Number 73)]
[Rules and Regulations]
[Page 20511-20518]
[DOCID:fr15ap08-18]

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Part IV

Securities and Exchange Commission

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17 CFR Part 239

Revisions to Form S-11 To Permit Historical Incorporation by Reference;
Final Rule

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 239

[Release No. 33-8909; File No. S7-30-07]
RIN 3235-AK02

Revisions to Form S-11 To Permit Historical Incorporation by
Reference

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: We are adopting amendments to Form S-11, a registration
statement used by real estate entities to register offerings under the
Securities Act of 1933. The amendments permit an entity that has filed
an annual report for its most recently completed fiscal year and that
is current in its reporting obligations under the Securities Exchange
Act of 1934 to incorporate by reference into Form S-11 information from
its previously filed Exchange Act reports and documents. The amendments
are identical to amendments to Form S-1 and Form F-1 previously adopted
by the Commission and effective as of December 1, 2005.

DATES: Effective Date: April 15, 2008.

FOR FURTHER INFORMATION CONTACT: Michael McTiernan at<PHONE_NUMBER>,
Division of Corporation Finance, U.S. Securities and Exchange
Commission, 100 F Street, NE., Washington, DC 20549-3010.

SUPPLEMENTARY INFORMATION: We are amending Form S-11 \1\ under the
Securities Act of 1933.\2\
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    \1\ 17 CFR 239.18.
    \2\ 15 U.S.C. 77a et seq.
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 I. Discussion

A. Background

    Form S-11 is the form that real estate entities generally must use
to register offerings under the Securities Act.\3\ The form is used for
the registration of securities issued by real estate investment trusts
and securities issued by other issuers whose business is primarily that
of acquiring and holding for investment real estate, interests in real
estate, or interests in other issuers whose business is primarily that
of acquiring and holding real estate or interests in real estate for
investment.\4\ Prior to these amendments, Form S-11 did not permit an
issuer to satisfy the disclosure requirements of the form through
incorporation by reference to the reports and other documents that the
issuer previously had filed under the Securities Exchange Act of
1934.\5\
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    \3\ Real estate entities may also use Form S-3 [17 CFR 239.13]
and Form S-4 [17 CFR 239.25] if they meet the applicable eligibility
requirements of those forms. When no other form is available, these
entities are required to file on Form S-11 rather than Form S-1.
    \4\ See General Instruction A of Form S-11.
    \5\ 15 U.S.C. 78a et seq.
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    On June 29, 2005, we adopted amendments to Form S-1 \6\ and Form F-
1 \7\ to permit companies filing those forms to incorporate by
reference information from their previously filed Exchange Act reports
and documents.\8\ The purpose of the amendments was to integrate
further the Exchange Act and the Securities Act.\9\ The ability to
incorporate by reference is conditioned, among other things, on the
company having filed its annual report for the most recent fiscal year,
being current in its reporting obligations under the Exchange Act, and
making the incorporated Exchange Act reports and documents available
and accessible on a Web site maintained by or for the registrant.\10\
Blank check companies, shell companies and penny stock registrants are
not permitted to use incorporation by reference. Successor registrants
may incorporate by reference if their predecessors were eligible.\11\
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    \6\ 17 CFR 239.11.
    \7\ 17 CFR 239.31.
    \8\ See Securities Offering Reform, Release No. 33-8591 (Jul.
19, 2005) [70 FR 44722].
    \9\ Id. at 237.
    \10\ See General Instruction VII of Form S-1 and General
Instruction VI of Form F-1.
    \11\ Id.
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    In 2005, we did not adopt similar amendments to Form S-11. However,
we believe that Form S-11 should be consistent with Form S-1 with
respect to incorporation by reference. Both Form S-11 and Form S-1 are
long-form registration statements intended for new and unseasoned
issuers. The only substantive difference between the two forms is that
Form S-11 contains certain additional disclosure requirements specific
to real estate entities. We believe that integrating disclosure under
the Exchange Act and Securities Act should extend equally to the
disclosure obligations of real estate entities.
    On December 10, 2007, we proposed amendments to Form S-11 to permit
a reporting issuer that has filed an annual report for its most
recently completed fiscal year and that is current in its reporting
obligations under the Exchange Act to incorporate by reference into its
Form S-11 information from its previously filed Exchange Act reports
and documents.\12\ We received six comment letters in response to the
proposed amendments.\13\ We are adopting amendments to Form S-11
substantially as proposed with certain modifications to reflect
comments received.
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    \12\ Revisions to Form S-11 to Permit Historical Incorporation
by Reference, Release No. 33-8871 (Dec. 14, 2007) [72 FR 72274] (the
``Proposing Release'').
    \13\ All comment letters are publicly available at http://
www.sec.gov/comments/s7-30-07/s73007.shtml or at our Public
Reference Room at 100 F Street, NE, Washington, DC 20549.
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B. Amendments to Form S-11

1. Historical Incorporation by Reference
    (a) Eligibility
    We are amending Form S-11 to permit a reporting issuer that has
filed an annual report for its most recently completed fiscal year and
that is current in its reporting obligations under the Exchange Act to
incorporate by reference into its Form S-11 information from previously
filed Exchange Act reports and documents. A successor registrant will
be able to incorporate information by reference on the same terms if
its predecessor was eligible to do so.\14\ Consistent with Form S-1 and
the provisions outlined in the Proposing Release, the following issuers
will not be able to incorporate by reference into a Form S-11:
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    \14\ The succession would have to be either primarily for the
purpose of changing the state or jurisdiction of incorporation of
the issuer or forming a holding company and the assets and
liabilities of the successor would have to be substantially the same
as the predecessor at the time of the succession, or all of the
predecessor issuers would have to be eligible at the time of the
succession and the issuer must continue to be eligible.
---------------------------------------------------------------------------

     Reporting issuers who are not current in their Exchange
Act reports; \15\
---------------------------------------------------------------------------

    \15\ As with Forms S-1, F-1 and S-3, to be current, at the time
of filing the registration statement, the issuer must have filed all
materials required to be filed pursuant to Exchange Act Section 13,
14 or 15(d) [15 U.S.C. 78m, 78n, or 78o(d)] during the preceding 12
calendar months (or for such shorter period that the issuer was
required to file such materials).
---------------------------------------------------------------------------

     Issuers who are or were, or any of whose predecessors were
during the past three years:
    [cir] Blank check issuers;
    [cir] Shell companies (other than business combination related
shell companies); or
    [cir] Issuers for offerings of penny stock.\16\
---------------------------------------------------------------------------

    \16\ See Securities Act Rule 419(a)(2) [17 CFR 230.419(a)(2)],
Exchange Act Rule 3a51-1 [17 CFR 240.3a51-1] and Securities Act Rule
405 [17 CFR 230.405] for definitions of ``blank check company,''
``penny stock'' and ``shell company,'' respectively.
---------------------------------------------------------------------------

    In addition, to enhance the availability to investors of
incorporated information, the ability to incorporate by reference is
conditioned on the issuer making its incorporated Exchange Act reports
and other materials readily accessible on a Web site maintained by or
for the issuer. By conditioning the

ability to incorporate by reference on the ready accessibility of an
issuer's incorporated Exchange Act reports and other materials on its
Web site, we are providing investors the ability to obtain the
information from those reports and materials at the same time that they
would have been able to obtain the information if it was set forth
directly in the registration statement. Issuers may satisfy this
condition by including hyperlinks directly to the reports or other
materials filed on EDGAR or on another third-party Web site where the
reports or other materials are made available in the appropriate
timeframe and access to the reports or other materials is free of
charge to the user.
    (b) Procedural Requirements
    Under the amendments we are adopting today, the prospectus in the
registration statement at effectiveness must identify all previously
filed Exchange Act reports and materials, such as proxy and information
statements, that are incorporated by reference. There will be no
permitted incorporation by reference of Exchange Act reports and
materials filed after the registration statement is effective--known as
``forward incorporation by reference.'' \17\ Under the amendments, an
issuer eligible to incorporate by reference its Exchange Act reports
and other materials into its Form S-11 must include the following in
the prospectus that is part of the registration statement:
---------------------------------------------------------------------------

    \17\ As discussed below, incorporation by reference of
historical Exchange Act reports and documents will be permitted in
post-effective amendments to the registration statement, provided
the issuer otherwise satisfies the eligibility and procedural
requirements set forth in Form S-11.
---------------------------------------------------------------------------

     A list of the incorporated reports and materials;
     A statement that it will provide copies of any
incorporated reports or materials on request;
     An indication that the reports and materials are available
through the Securities and Exchange Commission's EDGAR system or public
reference room;
     Identification of the issuer's Web site address where such
incorporated reports and other materials can be accessed; and
     Required disclosures regarding material changes in, or
updates to, the information that is incorporated by reference from an
Exchange Act report or other material required to be filed.
2. Form S-11 and Rule 415 Under the Securities Act
    We have historically permitted registrants offering securities on a
continuous basis pursuant to Rule 415 \18\ under the Securities Act to
use Form S-11. However, unlike the cover page of Form S-1, the cover
page of Form S-11 does not require a registrant to reflect whether it
is relying on Rule 415 under the Securities Act. In response to the
suggestion of a commenter, as described below, we have amended the
cover page of Form S-11 to conform to the cover page of Form S-1 so as
to require a registrant to reflect whether it has relied on Rule 415
under the Securities Act.\19\ This amendment also will assist the staff
in assessing compliance with the requirements for incorporation by
reference, particularly as they apply in the continuous offering
context.
---------------------------------------------------------------------------

    \18\ 17 CFR 230.415.
    \19\ See letter from Bimini Capital Management, Inc.
(``Bimini'').
---------------------------------------------------------------------------

C. Comments on Form S-11 Amendments

    Commenters strongly supported the proposed amendments to allow
issuers to incorporate by reference historical Exchange Act filings
into Form S-11.\20\ One commenter suggested that Form S-11 should also
permit forward incorporation by reference for filings made after
effectiveness of a registration statement.\21\ We are not adopting this
suggestion. The purpose of these amendments is to revise Form S-11 to
conform to Form S-1 and Form F-1 with respect to incorporation by
reference and those forms do not permit forward incorporation by
reference.
---------------------------------------------------------------------------

    \20\ See, for example, letters from Bimini, The Investment
Program Association (``IPA''), Corporate Property Associates 17--
Global Incorporated (``CPA''), Hines Real Estate Investment Trust,
Inc. (``Hines'') and Grubb & Ellis Company (``Grubb'').
    \21\ See letter from Bimini.
---------------------------------------------------------------------------

    Another commenter suggested that we revise the eligibility
requirement that the registrant must have filed an annual report
required under Section 13(a) or 15(d) of the Exchange Act for its most
recently completed fiscal year.\22\ Again, since Form S-1 and Form F-1
include this eligibility requirement, we have not adopted the
commenter's suggestion to provide an alternative requirement in Form S-
11. We do not believe that this eligibility requirement will prevent
the use of incorporation by reference in the multi-year continuous
offerings commonly registered on Form S-11 by non-traded real estate
investment trusts (``REITs''). These registrants regularly file post-
effective amendments to reflect property acquisitions. A post-effective
amendment to a Form S-11 may be filed after the end of a registrant's
fiscal year but prior to the filing of its Form 10-K, raising the
question of whether the registrant may continue to incorporate by
reference historical Exchange Act reports in such post-effective
amendment. In the continuous offering context, we believe that
eligibility to incorporate by reference should be measured immediately
prior to the time of filing a Form S-11 registration statement, as
specified in Instruction H of the form, and thereafter, each time that
a post-effective amendment is filed for purposes of updating the
information contained in the prospectus pursuant to Section 10(a)(3) of
the Securities Act.\23\ Thus a post-effective amendment filed for
purposes other than a Section 10(a)(3) update, such as a post-effective
amendment to reflect property acquisitions, could continue to
incorporate by reference historical Exchange Act reports to the extent
the previous post-effective amendment filed for purposes of Section
10(a)(3) or, if not applicable, the original registration statement,
was eligible to do so.
---------------------------------------------------------------------------

    \22\ See letter from IPA.
    \23\ 15 U.S.C. 77j(a). Section 10(a)(3) of the Securities Act
requires that when a prospectus is used more than nine months after
the effective date of the registration statement, the information
contained therein shall be as of a date not more than sixteen months
prior to such use, so far as such information is known to the user
of such prospectus or can be furnished by such user without
unreasonable effort or expense.
---------------------------------------------------------------------------

    Two commenters requested guidance on whether a prospectus
supplement may be used to update the information incorporated by
reference into the prospectus included in a Form S-11 registration
statement.\24\ Rule 411 \25\ under the Securities Act prohibits
incorporation by reference of information into a prospectus except as
specifically permitted in the registration statement form. If the
registrant meets the requirements set forth in Instruction H of Form S-
11, as we are adopting Instruction H in this release, then the
registrant may elect to incorporate by reference ``into the prospectus
contained in the registration statement'' the information in the
documents set forth in Item 29 of Form S-11, as we are adopting Item 29
in this release. For purposes of these form instructions, a revised or
supplemented prospectus is ``contained in the registration statement''
when it is part of a post-effective amendment to the registration
statement. This is consistent with our earlier statement that there
will be no permitted incorporation by reference of Exchange Act reports
and documents filed after the effective date of the registration
statement.
---------------------------------------------------------------------------

    \24\ See letters from IPA and Hines.
    \25\ 17 CFR 230.411.
---------------------------------------------------------------------------

    Two commenters \26\ requested guidance on whether a new non-traded

REIT \27\ would be a shell company and thus ineligible to incorporate
by reference for at least three years. The determination of whether a
particular registrant is a shell company depends on the facts and
circumstances of that company as considered against the definition of
the term ``shell company'' in Rule 405 and the principles underlying
that definition as described in the release adopting that
definition.\28\ Under appropriate circumstances a non-traded REIT may
not be deemed a shell company; however, the determination of whether
certain registrants such as non-traded REITs are shell companies is
outside the scope of these amendments. Furthermore, in adopting the
definition of ``shell company'' in 2005, we declined to provide more
specific or quantitative measurements, as we believed the definition in
Rule 405 reflected the traditional understanding of the term ``shell
company'' in the area of corporate finance.\29\
---------------------------------------------------------------------------

    \26\ See letters from IPA and Grubb.
    \27\ Typically a non-traded REIT has only cash assets at the
time of effectiveness of its initial Form S-11 registration
statement. The initial public offering generally is a best-efforts
continuous offering and the proceeds of the offering are used to
purchase real estate or real estate related assets that are not
identified in the registration statement at the time of
effectiveness.
    \28\ Use of Form S-8, Form 8-K, and Form 20-F by Shell
Companies, Release No. 33-8587 (Jul. 15, 2005) [70 FR 42234]
(adopting 17 CFR 230.405 and other rules). The shell company rules
adopted in that release were intended to protect investors by
deterring fraud and abuse through the use of reporting shell
companies, including through ``pump-and-dump'' schemes and schemes
to avoid Securities Act registration and prospectus delivery
requirements.
    \29\ See id. The term ``shell company'' means a registrant,
other than an asset-backed issuer as defined in Item 1101(b) of
Regulation AB, that has
    No or nominal operations; and
    --Either:
    --no or nominal assets;
    --assets consisting solely of cash and cash equivalents; or
    --assets consisting of any amount of cash and cash equivalents
and nominal other assets.
---------------------------------------------------------------------------

    One commenter \30\ suggested that we amend the disclosure
requirements of Form S-11 to conform to the recent amendments to
Regulation S-K \31\ with respect to the disclosure requirements of
smaller reporting companies.\32\ Form S-11 includes some substantive
disclosure requirements that are not contained in Regulation S-K.\33\
Thus the recent amendments to Regulation S-K made in connection with
the elimination of the small business registration forms do not impact
these Form S-11 disclosure requirements. Since the purpose of these
amendments is only to revise Form S-11 to conform to Form S-1 and Form
F-1 with respect to incorporation by reference, we have not adopted the
suggestion at this time. We may consider future amendments to Form S-11
to address any differences between Form S-11 disclosures and Regulation
S-K disclosures.
---------------------------------------------------------------------------

    \30\ See letter from Bimini.
    \31\ 17 CFR 229.10 to 17 CFR 229.915.
    \32\ See Smaller Reporting Company Regulatory Relief and
Simplification, Release No. 33-8876 (Dec. 19, 2007) [73 FR 934]. The
final rules were effective as of February 4, 2008.
    \33\ For example, Items 11-15 of Form S-11 include specific
disclosure requirements regarding general information about the
registrant, its investment policies and its properties that are not
contained in Regulation S-K.
---------------------------------------------------------------------------

    One commenter \34\ suggested that we amend an undertaking in
Industry Guide 5 \35\ related to disclosures made in connection with
property acquisitions. Since the purpose of these amendments is only to
revise Form S-11 to conform to Form S-1 and Form F-1 with respect to
incorporation by reference, we have not adopted the suggestion at this
time. We may consider future revisions to Industry Guide 5.
---------------------------------------------------------------------------

    \34\ See letter from Grubb.
    \35\ 17 CFR 229.801.
---------------------------------------------------------------------------

    Finally, one commenter \36\ requested we amend the cover page of
Form S-11 to conform to Form S-1 and require a registrant to reflect
its reliance on Rule 415 under the Securities Act. Registrants required
to register offerings on Form S-11 are permitted to rely on Rule 415 to
the extent permitted by the terms of the rule to the same extent as
registrants registering on Form S-1. Accordingly, we have adopted the
suggestion to revise the cover page of Form S-11 to require a
registrant to reflect its reliance on Rule 415 under the Securities
Act.
---------------------------------------------------------------------------

    \36\ See letter from Bimini.
---------------------------------------------------------------------------

D. Effective Date

    The amendments to Form S-11 shall take effect upon publication in
the Federal Register. The Commission finds good cause to make the
amendments effective prior to 30 days after publication to enable
calendar fiscal year registrants eligible to incorporate by reference
to satisfy their obligations to update the financial information
contained in current prospectuses as required by Section 10(a)(3) of
the Securities Act by incorporating their most recently filed Form 10-
K. Calendar fiscal year registrants are required to satisfy these
updating requirements by April 30, 2008. These registrants would need
to make any incorporated reports or materials readily accessible on
their Web site; investors, therefore, should be able to obtain the
information from those reports or materials at the same time that they
would have been able to obtain the information if it was set forth
directly in the registration statement. In addition, because the
amendments to Form S-11 relieve restrictions on companies to include
information already on file with the Commission, we believe that it is
appropriate that the effective date of the release be upon publication
in the Federal Register.

II. Paperwork Reduction Act

A. Background

    The amendments to Form S-11 contain ``collection of information''
requirements within the meaning of the Paperwork Reduction Act of
1995.\37\ As discussed in the Proposing Release, we submitted a request
for approval of these to the Office of Management and Budget in
accordance with the Paperwork Reduction Act.\38\ The title for this
information is ``Form S-11'' (OMB Control No. 3235-0067).
---------------------------------------------------------------------------

    \37\ 44 U.S.C. 3501 et seq.
    \38\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
---------------------------------------------------------------------------

    Form S-11 was adopted pursuant to the Securities Act. This form
sets forth the disclosure requirements for registration statements
prepared by real estate entities to provide investors with the
information they need to make informed investment decisions in
registered offerings.
    Our amendments to Form S-11 are intended to allow issuers that are
required to use Form S-11 to incorporate by reference previously filed
Exchange Act reports and documents. The amendments revise Form S-11 to
conform to Form S-1 and Form F-1 with respect to incorporation by
reference.
    The hours and costs associated with preparing disclosure, filing
forms, and retaining records constitute reporting and cost burdens
imposed by the collection of information. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information requirement unless it displays a currently valid control
number. The information collection requirements related to registration
statements on Form S-11 are mandatory. There is no mandatory retention
period for the information disclosed, and the information disclosed
will be made publicly available on the EDGAR filing system.

B. Summary of Information Collection

    The amendments will decrease existing disclosure requirements for
eligible issuers by eliminating the need to repeat information in a
Form S-11 when that information was previously disclosed in Exchange
Act filings. Any reporting issuer that has filed an annual report for
its most recently completed fiscal year and that is current in its

reporting obligation will be permitted to incorporate information by
reference into its registration statement on Form S-11.

C. Summary of Comments and Revisions to Amendments

    Four of the commenters indicated that the amendments will increase
the efficiency of the registration process and decrease costs borne by
registrants.\39\ None of the commenters specifically addressed our
request for comment on the Paperwork Reduction Act analysis contained
in the Proposing Release. We are nevertheless revising our Paperwork
Reduction Act estimates in light of certain rounding adjustments made
in our submission to OMB.
---------------------------------------------------------------------------

    \39\ See letters from IPA, CPA, Hines and Grubb.
---------------------------------------------------------------------------

D. Revised Paperwork Reduction Act Burden Estimates

    As discussed in Section II.C. above, we are revising the Paperwork
Reduction Act burden estimates in the Proposing Release to reflect the
rounding of those calculations, as reflected in the submission made to
OMB.
    For purposes of the Paperwork Reduction Act, we now expect the
annual decrease in the paperwork burden for issuers eligible to
incorporate by reference to comply with Form S-11 to be approximately
37,950 hours of in-house company personnel time and approximately
$45,540,000 for the services of outside professionals.\40\ These
estimates include the time and the cost of preparing and reviewing
disclosure, filing documents, and retaining records. These estimates
were based on the following assumptions:
---------------------------------------------------------------------------

    \40\ Consistent with recent rulemakings and based on discussions
with several private law firms, we estimate that the cost of outside
professionals retained by the issuer is an average of $400 per hour.
---------------------------------------------------------------------------

     Each year, approximately 100 registration statements on
Form S-11, including post-effective amendments, will incorporate
information by reference.\41\
---------------------------------------------------------------------------

    \41\ This estimate is based on prior filing history and future
estimates. From September 1, 2006 to August 31, 2007, issuers that
will be eligible to incorporate by reference under these amendments
filed approximately 14 new registration statements on Form S-11 and
68 post-effective amendments to registration statements on Form S-11
(excluding post-effective amendments filed for the purpose of
deregistering shares). A majority of these filings were made by non-
traded REITs. With the elimination of small business registration
forms, we estimate that the number of registration statements filed
on Form S-11 will increase by 15. See Release No. 33-8876.
---------------------------------------------------------------------------

     The estimated paperwork burden for a Form S-11 that does
not incorporate information by reference is 1,977 hours, which consists
of 494.25 internal hours and 1,482.75 professional hours.\42\
---------------------------------------------------------------------------

    \42\ Consistent with current OMB estimates, we assume that 25%
of the total burden is borne by internal staff and 75% by
professionals.
---------------------------------------------------------------------------

     The estimated paperwork burden for a Form S-11 that
incorporates information by reference will be the same as the burden
currently imposed by Form S-3,\43\ which is 459 hours, which consists
of 114.75 internal hours and 344.25 professional hours.
---------------------------------------------------------------------------

    \43\ 17 CFR 239.13.
---------------------------------------------------------------------------

     The amount of time eliminated for each Form S-11 that
incorporates information by reference will be 1,518 hours per form
(1,977 hours for a Form S-11 that does not incorporate information by
reference minus 459 hours for a Form S-11 that incorporates information
by reference).
     We estimate that the annual decrease in compliance burden
after adoption of the amendments will be 151,800 hours (100
registration statements multiplied by 1,518 hours per form).\44\ This
would include 37,950 hours of issuer personnel time (100 registration
statements times 379.5 \45\ hours of issuer personnel time per
registration statement) and 113,850 hours of professional time (100
registration statements times 1,138.5 \46\ hours of professional time
per registration statement).
---------------------------------------------------------------------------

    \44\ Generally, companies eligible to incorporate by reference
on Form S-11 will have previously filed at least one Form S-11. The
estimated decrease in the compliance burden discussed in this
section reflects the reduced costs of preparing a subsequent Form S-
11 as well as the reduced costs from utilizing incorporation by
reference.
    \45\ Reflects the difference between the amount of internal time
required to prepare a Form S-11 without incorporation by reference
(494.25 hours) and the amount of internal time required to prepare a
Form S-11 with incorporation by reference (114.75 hours).
    \46\ Reflects the difference between the amount of professional
time required to prepare a Form S-11 without incorporation by
reference (1,483 hours) and the amount of professional time required
to prepare a Form S-11 with incorporation by reference (344.25
hours).
---------------------------------------------------------------------------

     The annual cost savings will be approximately $45,540,000
for the services of outside professionals.

III. Cost-Benefit Analysis

A. Summary of Amendments

    We are adopting revisions to Form S-11 that will allow real estate
entities to take advantage of incorporation by reference for their
previously filed Exchange Act reports and documents. Form S-1 and Form
F-1, which are similar long-form registration statements, currently
permit this type of incorporation by reference. The amendments revise
Form S-11 to permit incorporation by reference on the same terms as
currently provided in Form S-1 and Form F-1. The purpose of the
amendments is to integrate further the disclosure obligations of the
Exchange Act and the Securities Act for real estate entities.

B. Benefits

    We anticipate that the amendments will enable real estate entities
to access the capital markets at a lower cost. The amendments will
enable eligible issuers to use their Exchange Act filings to satisfy a
portion of their Form S-11 disclosure requirements without having to
incur costs to replicate information that they already have disclosed
in previously filed Exchange Act reports and other documents. For
purposes of our Paperwork Reduction Act analysis, we estimate that our
amendments to Form S-11 will reduce the annual paperwork burden by
approximately 37,950 hours for issuer personnel time at a cost of
approximately $6,641,250 \47\ and by a cost of approximately
$45,540,000 for the services of outside professionals. In addition, we
believe that the reduction in the size of the prospectus as a result of
incorporation by reference will also result in some cost savings and
efficiencies in printing and delivering prospectuses.
---------------------------------------------------------------------------

    \47\ Consistent with recent rulemaking releases, we estimate the
value of work performed by the company internally at a cost of $175
per hour.
---------------------------------------------------------------------------

    The amendments are intended to result in regulatory simplification
and efficiency by permitting incorporation by reference on Form S-11
and conforming the requirements of Form S-11 to the requirements of
Form S-1 and Form F-1 in that respect. Incorporation by reference will
allow eligible issuers to avoid duplicating disclosure in Form S-11
when the information has already been disclosed in Exchange Act
reports. In addition, the revisions will simplify the disclosure regime
for long-form registration statements by permitting incorporation by
reference equally, regardless of industry. Although four of the
commenters indicated that the amendments will increase the efficiency
of the registration process and decrease costs borne by
registrants,\48\ none of the commenters specifically addressed our
request for comment on the Cost-Benefits Analysis contained in the
Proposing Release.
---------------------------------------------------------------------------

    \48\ See letters from IPA, CPA, Hines and Grubb.
---------------------------------------------------------------------------

    Two commenters requested guidance on whether a prospectus
supplement may be used to update the information incorporated in a
prospectus included in a Form S-11 registration statement.\49\ As
discussed above, we believe it is

appropriate to limit the use of incorporation by reference to revised
or supplemented prospectuses included in post-effective amendments to
the registration statement. We believe this limitation is consistent
with our prior statements that forward incorporation by reference is
not appropriate for long-form registration statements, such as Form S-
11, while still reducing the overall filing burden associated with the
form.
---------------------------------------------------------------------------

    \49\ See letters from IPA and Hines.
---------------------------------------------------------------------------

C. Costs

    We expect that the amendments will result in some ongoing costs to
issuers that elect to use incorporation by reference. These potential
costs relate to the issuer's obligation to make the incorporated
Exchange Act reports and documents available on its Web site and
include creating and/or maintaining a Web site as well as actually
posting the required filings on the Web site. However, we believe that
a substantial majority of issuers eligible to use incorporation by
reference already maintain Web sites and thus will not have to incur
any additional costs to establish a new Web site for this purpose. In
addition, we believe that many issuers eligible to use incorporation by
reference already post their Exchange Act reports on their Web sites.
Those that do not will incur incremental costs to post the required
filings. Given that the amendments will not mandate use of
incorporation by reference, issuers that are unwilling to bear the cost
of complying with the Web site requirement can simply elect not to
incorporate information by reference.
    We also recognize that permitting incorporation by reference may
impose an analytical burden on investors. For example, for offerings on
Form S-11 today, much of the relevant information regarding an offering
and the issuer is required to be contained in the registration
statement. As a result of our amendments, offerings pursuant to Form S-
11 could require an investor to assemble and assimilate information
from various Exchange Act reports and the registration statement in
order to compile all of the relevant information regarding an offering.
Investors will have to compile the information integrated into the
registration statement or delivered by means outside of the prospectus.
We note, however, that Securities Act Forms S-3 and F-3 have long
permitted incorporation by reference from the issuer's Exchange Act
reports, as have Form S-1 and Form F-1 since December 2005, and we know
of no indications that investors are unduly burdened when investing in
offerings registered on these forms.

IV. Consideration of Promotion on Efficiency, Competition and Capital
Formation

    Section 2(b) of the Securities Act,\50\ requires us, when engaged
in rulemaking where we are required to consider or determine whether an
action is necessary or appropriate in the public interest, to consider,
in addition to the protection of investors, whether the action will
promote efficiency, competition and capital formation. In response to
our request for comment in the Proposing Release on the impact of the
proposed amendments on efficiency, competition and capital formation,
four of the commenters indicated that the amendments will increase the
efficiency of the registration process and decrease costs borne by
registrants.\51\
---------------------------------------------------------------------------

    \50\ 15 U.S.C. 77b(b).
    \51\ See letters from IPA, CPA, Hines and Grubb.
---------------------------------------------------------------------------

    The amendments will amend Form S-11 to permit incorporation by
reference on terms equivalent to that currently provided in Form S-1
and Form F-1. We believe the amendments will provide benefits, as
discussed in further detail above, by reducing the costs of complying
with the Form S-11 disclosure requirements by enabling eligible issuers
to incorporate their Exchange Act filings. Eased filing burdens
resulting from the amendments will promote efficiency in capital
formation for real estate entities and may provide a competitive
benefit to entities filing on Form S-11 by allowing them to incorporate
their periodic reports by reference to the same extent as registrants
filing on Form S-1 and Form F-1.

V. Final Regulatory Flexibility Act Analysis

    This Final Regulatory Flexibility Analysis has been prepared in
accordance with 5 U.S.C. 603. It relates to amendments to Form S-11.

A. Reasons for and Objectives of the Amendments

    In 2005, the Commission adopted revisions to Form S-1 and Form F-1
to permit incorporation by reference from previously filed Exchange Act
reports and other documents. Currently, real estate entities are not
permitted to use Form S-1 to register offerings under the Securities
Act. Consequently, these entities are unable to take advantage of the
important benefit of incorporation by reference that is enjoyed by
companies in all other industries that file registration statements on
Form S-1. The ability to use a prospectus that does not need to include
information provided in previous Exchange Act filings permits companies
to streamline the preparation of registration statements and raise
capital more efficiently. Companies that are not permitted to
incorporate by reference have a greater burden in preparing
registration statements in connection with their public offerings. We
believe there is no reason to distinguish between real estate entities
and other industries for purposes of incorporation by reference.
    The purpose of the amendments is to further integrate the Exchange
Act and Securities Act by amending Form S-11 to permit incorporation by
reference of Exchange Act filings on terms equivalent to that currently
provided in Form S-1 and Form F-1. The amendments will extend an
important benefit to real estate entities.

B. Significant Issues Raised by Public Comment

    In the Proposing Release, we requested comment on any aspect of the
Initial Regulatory Flexibility Act Analysis, including the number of
small entities that would be affected by the proposals, and both the
qualitative and quantitative nature of the impact. While several
commenters supported the proposal because of the cost savings to real
estate entities, they did not provide any specific comments on the
Initial Regulatory Flexibility Act Analysis.

C. Small Entities Subject to the Amendments

    The Regulatory Flexibility Act defines ``small entity'' to mean
``small business,'' ``small organization,'' or ``small governmental
jurisdiction.'' \52\ The Commission's rules define ``small business''
and ``small organization'' for purposes of the Regulatory Flexibility
Act for each of the types of entities regulated by the Commission.\53\
Roughly speaking, a ``small business'' and ``small organization,'' when
used with reference to an issuer other than an investment company,
means an issuer with total assets of $5 million or less on the last day
of its most recent fiscal year. We estimate that there are
approximately 1,100 issuers, other than investment companies, that may
be considered reporting small entities.\54\ The amendments will apply
to all

issuers required to file registration statements on Form S-11.
---------------------------------------------------------------------------

    \52\ 5 U.S.C. 601(6).
    \53\ Rules 157 under the Securities Act [17 CFR 230.157], 0-10
under the Exchange Act [17 CFR 240.0-10] and 0-10 under the
Investment Company Act [17 CFR 270.0-10] contain the applicable
definitions.
    \54\ The estimated number of reporting small entities is based
on 2007 data, including the Commission's EDGAR database and Thomson
Financial's Worldscope database.
---------------------------------------------------------------------------

    As previously noted, in the 12 months ended August 31, 2007, 82
registration statements on Form S-11 were filed, including new
registration statements and post-effective amendments. We estimate that
four of those were filed by small entities. We also estimate that
approximately 15 registration statements were filed on Form SB-2 in the
last fiscal year covering transactions by real estate entities that in
the future will be required to register on Form S-11.\55\ Thus, we
estimate that 19 registration statements by small entities will be
subject to the amendments.
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    \55\ See Release No. 33-8876.
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D. Reporting, Recordkeeping and Other Compliance Requirements

    The amendments are expected to impact all capital raising and
selling security holder transactions that are registered under the
Securities Act on Form S-11. Small entities required to register on
Form S-11 will be able to take advantage of the ability to incorporate
by reference previously filed Exchange Act reports and documents. We
expect that permitting the incorporation by reference of previously
filed Exchange Act reports and documents will reduce the aggregate
costs incurred by small entities of preparing registration statements
on Form S-11 by $9,914,438.\56\
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    \56\ This estimate is based on our estimate that 19 registration
statements by small entities will be subject to the amendments.
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    We expect that small entities eligible to register on Form S-11 may
need to incur some insignificant additional costs related to complying
with the Web site requirements related to incorporation by reference,
although issuers could avoid such costs by electing not to incorporate
information by reference. They may also have already incurred this cost
for other business reasons.

E. Agency Action To Minimize Effect on Small Entities

    The Regulatory Flexibility Act directs us to consider significant
alternatives that would accomplish the stated objective, while
minimizing any significant adverse impact on small entities. In
connection with the amendments, the Regulatory Flexibility Act requires
us to consider the following alternatives:
    1. Establishing different compliance or reporting requirements that
take into account the resources of small entities;
    2. The clarification, consolidation, or simplification of
disclosure for small entities;
    3. Use of performance standards rather than design standards; and
    4. Exempting smaller entities from coverage of the disclosure
requirements or any part thereof.
    Our amendments will extend the benefit of incorporation by
reference to small entities that are required to file registration
statements on Form S-11. Establishing a different standard for small
business entities would impose a greater compliance burden on small
entities and would be inconsistent with the benefits provided for small
entities that register on Form S-1 and Form F-1.

VI. Statutory Authority and Text of the Amendments

    The amendments described in this release are adopted under the
authority set forth in Sections 6, 7, 8, 10 and 19(a) of the Securities
Act, as amended.

List of Subjects in 17 CFR Part 239

    Reporting and recordkeeping requirements, Securities.

0
For the reasons set out in the preamble, the Commission amends title
17, chapter II, of the Code of Federal Regulations as follows:

PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

0
1. The authority citation for part 239 continues to read in part as
follows:

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3,
77sss, 78c, 78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll, 77mm, 80a-
2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 80a-29,
80a-30, and 80a-37, unless otherwise noted.
* * * * *

0
2. Amend Form S-11 (referenced in Sec.  239.18) as follows:
0
a. Add General Instruction H;
0
b. Add to the cover page, above the check box related to ``Rule 462(b)
under the Securities Act,'' a check box requiring the registrant to
indicate whether it is relying on Rule 415 under the Securities Act;
0
c. In Part I, add Item 28A;
0
d. Redesignate Item 29 as Item 29A; and
0
e. Add new Item 29.
    The additions read as follows:

    Note-- The text of Form S-11 does not, and this amendment will
not, appear in the Code of Federal Regulations.

FORM S-11

FOR REGISTRATION UNDER THE SECURITIES ACT OF 1933 OF SECURITIES OF
CERTAIN REAL ESTATE COMPANIES

General Instructions

* * * * *
    H. Eligibility To Use Incorporation by Reference
    If a registrant meets the following requirements immediately prior
to the time of filing a registration statement on this Form, it may
elect to provide information required by Items 3 through 28 of this
Form in accordance with Item 28A and Item 29 of this Form:
    1. The registrant is subject to the requirement to file reports
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934.
    2. The registrant has filed all reports and other materials
required to be filed by Section 13(a), 14, or 15(d) of the Exchange Act
during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports and materials).
    3. The registrant has filed an annual report required under Section
13(a) or Section 15(d) of the Exchange Act for its most recently
completed fiscal year.
    4. The registrant is not:
    (a) And during the past three years neither the registrant nor any
of its predecessors was:
    (i) A blank check company as defined in Rule 419(a)(2) (Sec.
230.419(a)(2) of this chapter);
    (ii) A shell company, other than a business combination related
shell company, each as defined in Rule 405 (Sec.  230.405 of this
chapter); or
    (iii) A registrant for an offering of penny stock as defined in
Rule 3a51-1 of the Exchange Act (Sec.  240.3a51-1 of this chapter).
    (b) Registering an offering that effectuates a business combination
transaction as defined in Rule 165(f)(1) (Sec.  230.165(f)(1) of this
chapter).
    5. If a registrant is a successor registrant it shall be deemed to
have satisfied conditions 1, 2, 3, and 4(b) above if:
    (a) Its predecessor and it, taken together, do so, provided that
the succession was primarily for the purpose of changing the state of
incorporation of the predecessor or forming a holding company and that
the assets and liabilities of the successor at the time of succession
were substantially the same as those of the predecessor; or
    (b) All predecessors met the conditions at the time of succession
and the registrant has continued to do so since the succession.

    6. The registrant makes its periodic and current reports filed
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference pursuant to Item 28A or Item 29 of this Form
readily available and accessible on a Web site maintained by or for the
registrant and containing information about the registrant.
* * * * *

FORM S-11

* * * * *
    If any of the Securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, check the following box: [ ]
* * * * *

PART I--INFORMATION REQUIRED IN PROSPECTUS

* * * * *

Item 28A. Material Changes

    If the registrant elects to incorporate information by reference
pursuant to General Instruction H, describe any and all material
changes in the registrant's affairs which have occurred since the end
of the latest fiscal year for which audited financial statements were
included in the latest Form 10-K and which have not been described in a
Form 10-Q or Form 8-K filed under the Exchange Act.

Item 29. Incorporation of Certain Information by Reference

    If the registrant elects to incorporate information by reference
pursuant to General Instruction H:
    (a) It must specifically incorporate by reference into the
prospectus contained in the registration statement the following
documents by means of a statement to that effect in the prospectus
listing all such documents:
    (1) The registrant's latest annual report on Form 10-K filed
pursuant to Section 13(a) or Section 15(d) of the Exchange Act which
contains financial statements for the registrant's latest fiscal year
for which a Form 10-K was required to have been filed; and
    (2) All other reports filed pursuant to Section 13(a) or Section
15(d) of the Exchange Act or proxy or information statements filed
pursuant to Section 14 of the Exchange Act since the end of the fiscal
year covered by the annual report referred to in paragraph (a)(1) of
this Item.

    Note to Item 29(a). Attention is directed to Rule 439 (Sec.
230.439 of this chapter) regarding consent to use of material
incorporated by reference.

    (b)(1) The registrant must state:
    (i) That it will provide to each person, including any beneficial
owner, to whom a prospectus is delivered, a copy of any or all of the
reports or documents that have been incorporated by reference in the
prospectus contained in the registration statement but not delivered
with the prospectus;
    (ii) That it will provide these reports or documents upon written
or oral request;
    (iii) That it will provide these reports or documents at no cost to
the requester;
    (iv) The name, address, telephone number, and e-mail address, if
any, to which the request for these reports or documents must be made;
and
    (v) The registrant's Web site address, including the uniform
resource locator (URL) where the incorporated reports and other
documents may be accessed.

    Note to Item 29(b)(1). If the registrant sends any of the
information that is incorporated by reference in the prospectus
contained in the registration statement to security holders, it also
must send any exhibits that are specifically incorporated by
reference in that information.

    (2) The registrant must:
    (i) Identify the reports and other information that it files with
the SEC; and
    (ii) State that the public may read and copy any materials it files
with the SEC at the SEC's Public Reference Room at 100 F Street, NE,
Washington, DC 20549. State that the public may obtain information on
the operation of the Public Reference Room by calling the SEC at 1-800-
SEC-0330. If the registrant is an electronic filer, state that the SEC
maintains an Internet site that contains reports, proxy and information
statements, and other information regarding issuers that file
electronically with the SEC and state the address of that site (http://
www.sec.gov).
* * * * *

    Dated: April 10, 2008.

    By the Commission.
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-7967 Filed 4-14-08; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register: January 8, 2007 (Volume 72, Number 4)]
[Notices]
[Page 773]
[DOCID:fr08ja07-57]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. CP88-391-033; RP93-162-013]

Transcontinental Gas Pipe Line Corporation; Notice of Revised
Annual Cash-Out Reports

December 28, 2006.
    Take notice that on December 21, 2006, Transcontinental Gas Pipe
Line Corporation (Transco) tendered for filing revised cash-out reports
for the annual periods ended July 31, 2001, 2002, 2003, 2004 and 2005.
As explained in the filing, Transco requests that the Commission issue
an order that accepts and approves the revised cash-out reports and
authorizes Transco to make the appropriate refunds and surcharges to
each shipper, as necessary.
    Transco states that copies of the filing are being mailed to
parties on the official service list in Docket Nos. CP88-391 and RP93-
162 and interested state commissions.
    Any person desiring to protest this filing must file in accordance
with Rule 211 of the Commission's Rules of Practice and Procedure (18
CFR 385.211). Protests to this filing will be considered by the
Commission in determining the appropriate action to be taken, but will
not serve to make protestants parties to the proceeding. Such protests
must be filed on or before the date as indicated below. Anyone filing a
protest must serve a copy of that document on all the parties to the
proceeding.
    The Commission encourages electronic submission of protests in lieu
of paper using the ``eFiling'' link at http://www.ferc.gov. Persons

unable to file electronically should submit an original and 14 copies
of the protest to the Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426.
    This filing is accessible online at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on January 5, 2007.

Magalie R. Salas,
Secretary.
 [FR Doc. E6-22674 Filed 1-5-07; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 75, Number 79 (Monday, April 26, 2010)]
[Notices]
[Pages 21641-21642]
[FR Doc No: 2010-9208]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2010-N-0204]

Infusion Pumps; Public Meeting; Request for Comments

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of public meeting; request for comments.

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SUMMARY: The Food and Drug Administration (FDA) is announcing a public
meeting regarding external infusion pumps. The purpose of the meeting
is to inform the public about current problems associated with external
infusion pump use, to help the agency identify quality assurance
strategies to mitigate these problems, and to solicit comments and
input regarding how to bring more effective external infusion pumps to
market. Elsewhere in this issue of the Federal Register, FDA is
announcing the availability of a draft guidnace document entitled
``Total Product Life Cycle: Infusion Pump--Premarket Notification
(510(k)) Submissions.''
    Date and Time: The public meeting will be held on May 25 and 26,
2010, from 8 a.m. to 5 p.m. Persons interested in attending the meeting
must register by 5 p.m. on May 18, 2010.
    Location: The public meeting will be held at the Hilton Silver
Spring hotel, 8727 Colesville Rd., Silver Spring, MD 20910. Seating is
limited and available only on a first-come, first-served basis.
    Contact Person: Victoria Wagman, Food and Drug Administration,
Center for Devices and Radiological Health (CDRH), 10903 New Hampshire
Ave., Bldg. 66, rm. 5449, Silver Spring, MD 20993-0002,<PHONE_NUMBER>,
e-mail<EMAIL_ADDRESS>    Registration: Register online for webinar or onsite attendance at
http://www.fda.gov/MedicalDevices/NewsEvents/WorkshopsConferences/ucm203299.htm (select the appropriate meeting from the list). Please
provide complete contact information for each attendee, including name,
title, affiliation, address, e-mail, and telephone number. Registration
requests should be received by May 18, 2010. For those without Internet
access, please call<PHONE_NUMBER> to register. Registration is free and
will be on a first-come, first-served basis. Early registration is
recommended because seating is limited and therefore FDA may limit the
number of participants from each organization. If time and space
permits, onsite registration on the day of the public meeting will be
provided beginning at 7 a.m. Persons needing a sign language
interpreter or other special accommodations should notify Victoria
Wagman (see Contact Person) at least 7 days in advance. Additional
information is also available at http://www.fda.gov/MedicalDevices/NewsEvents/WorkshopsConferences/ucm181140.htm.
    Comments: Regardless of attendance at the public meeting,
interested persons may submit written or electronic comments. Submit
written comments to the Division of Dockets Management (HFA-305), Food
and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD
20852. Submit electronic comments to http://www.regulations.gov. 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 brackets in the
heading of this document. Please also indicate the specific question(s)
addressed. (See section II of this document.) Received comments may be
seen in the Division of Dockets Management between 9 a.m. and 4 p.m.,
Monday through Friday.

SUPPLEMENTARY INFORMATION:

I. Background

    FDA has seen an increase in the number and severity of external
infusion pump incident reports and recalls. During the period from
January 1, 2005, to December 31, 2009, FDA received over 56,000 medical
device reports associated with the use of external infusion pumps. Of
these reports, approximately 1 percent reported deaths, 34 percent
reported serious injuries, and 62 percent reported malfunctions. The
most frequently reported external infusion pump device problems across
all of the adverse reports recieved included software error messages,
human factors (which include but are not limited to use error), broken
components, battery failure, alarm failure, over infusion, and under
infusion. In some reports, the manufacturer was unable to determine or
identify the problem, however, subsequent analyses revealed that many
of the problems were preventable.
    FDA has evaluated a broad spectrum of infusion pumps across
manufacturers and has concluded there are numerous, systemic problems
with device design, manufacturing, and adverse event reporting. To
address these problems, the agency determined that manufacturers may
need to conduct additional assessments of new products or make changes
to products currently being marketed.

II. Topics for Discussion at the Public Meeting

    At the meeting, CDRH will discuss how to improve the safety and
efficacy of external infusion pumps and hear input on these issues from
a broad range of stakeholders. The agency encourages individuals,
patient advocates, industry, consumer groups, health care
professionals, researchers, and other interested persons to attend the
public meeting. To help focus the agency's strategies, CDRH requests
feedback on the following questions, which will serve as the basis for
discussion at the public meeting:
     What problems with external infusion pump have you
observed in the clinical or home setting?
     How can FDA, academia, users, patients, and industry work
together to improve the safety and efficacy of infusion pumps?
     What factors or criteria should be considered when
designing an external infusion pump for the clinical or home
environment and the user populations in those environments?
     Why is it important? What is the best way for FDA to
receive timely, accurate, and complete adverse events reports?
     When changes to CDRH's pre- or postmarket regulation of
external infusion pumps are warranted, how should the center apply them
to devices currently under review?
     How could CDRH better communicate external infusion pump
issues or concerns to its stakeholders?
    During the meeting, there will be a facilitated discussion between
CDRH staff and invited experts from the private and public sectors
about the questions presented in this document, as well as periodic
open sessions allowing all attendees the opportunity to provide comment
and feedback. Information gathered from the public meeting will help
the agency in developing topics for further consideration.

III. Transcripts

    Transcripts of the public meeting may be requested in writing from
the Freedom of Information Office (HFI-35), Food and Drug
Administration, 5600 Fishers Lane, rm. 6-30, Rockville, MD 20857,
approximately 15 working days after the public meeting at a cost of 10
cents per page. A link to the transcripts will also be available on the
Internet at http://www.fda.gov/MedicalDevices/NewsEvents/WorkshopsConferences/default.htm approximately 45 days after the
meeting.

    Dated: April 16, 2010.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2010-9208 Filed 4-23-10; 8:45 am]
BILLING CODE 4160-01-S