[Federal Register: June 18, 2009 (Volume 74, Number 116)]
[Notices]
[Page 29005-29013]
[DOCID:fr18jn09-59]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60108; File No. PCAOB-2008-05]

Public Company Accounting Oversight Board; Notice of Filing of
Proposed Rules on Succeeding to the Registration Status of a
Predecessor Firm

June 12, 2009.
    Pursuant to Section 107(b) of the Sarbanes-Oxley Act of 2002 (the
``Act''), notice is hereby given that on August 4, 2008, the Public
Company Accounting Oversight Board (the ``Board'' or the ``PCAOB'')
filed with the Securities and Exchange Commission (the ``Commission''
or ``SEC'') the proposed rules described in Items I and II below, which
items have been prepared by the Board. The Commission is publishing
this notice to solicit comments on the proposed rules from interested
persons.

I. Board's Statement of the Terms of Substance of the Proposed Rules

    On July 29, 2008, the Board adopted rules and a form related to
succeeding to the registration status of a predecessor firm. New PCAOB
Rules 2108-2109 and the instructions to a new form, Form 4, are set out
below.

Section 2. Registration and Reporting

Part 1--Registration of Public Accounting Firms
* * * * *

2108. Succeeding to the Registration Status of a Predecessor

    (a) In the event that a registered public accounting firm changes
its form of organization or changes the jurisdiction under the law of
which it is organized, in circumstances that do not involve an
acquisition or combination as described in paragraph (b) of this Rule,
the entity in its new form shall succeed to the registration status of
the predecessor if the new entity is a public accounting firm and files
a Form 4 in accordance with Rule 2109.
    (b) In the event that a registered public accounting firm is
acquired by an entity that is not a registered public accounting firm,
or combines with any other entity or entities to form a new legal
entity--
    (1) If the acquiring entity or the new entity is a public
accounting firm that files a Form 4 in accordance with Rule 2109, and
the answer provided to each subpart of Item 3.2.e of that Form 4 is
``no,'' that entity shall succeed to the registration status of the
registered firm;
    (2) If the acquiring entity or the new entity is a public
accounting firm that files a Form 4 in accordance with Rule 2109, and
the answer provided to any subpart of Item 3.2.e of that Form 4 is
other than ``no,'' that entity shall not succeed to the registration
status of the registered firm; provided, however, that if that entity
represents on Form 4 that it has filed, or that it intends to file
within 45 days of the effective date of the acquisition or combination,
an application for registration on Form 1, then--
    (i) Subject to the qualifications in subparagraphs (ii), (iii), and
(iv), that entity shall temporarily succeed to the registration status
of the registered firm for a transitional period, but that registration
will cease to be effective on the earlier of the date that the entity's
application on Form 1 is approved or the date that is 91 days after the
effective date of the acquisition or combination as reported on Form 4;
    (ii) Subject to the qualifications in subparagraphs (iii) and (iv),
if the acquisition or combination took effect before the effective date
of this rule, that entity shall temporarily succeed to the registration
status of the registered firm for a transitional period, but that
registration will cease to be effective on the earlier of the date that
the entity's application on Form 1 is approved or the date that is 91
days after the effective date of this rule;
    (iii) if the Board requests additional information from the entity
pursuant to Rule 2106(c) with less than 60 days remaining in the
original transitional period, the entity's temporary succession to
registration status shall continue to the date that is 60 days after
the date of the Board's request; and
    (iv) If, after the original transition period has been extended
pursuant to subparagraph (iii), the Board makes any further requests
for additional information from the entity pursuant to Rule 2106(c),
the Board may in its discretion extend the temporary succession to
registration status for such finite period as the Board shall specify.
    (c) Subject to paragraph (d) of this rule, a public accounting firm
that results from events described in paragraphs (a) or (b) of this
rule shall not, in the absence of compliance with the provisions of
Rule 2109, succeed to the registration status of a predecessor
registered public accounting firm.
    (d) Notwithstanding paragraph (c) of this rule, if a public
accounting firm's failure to comply with the provisions of Rule 2109 is
solely a failure concerning the timeliness of the submission, the firm
may request leave to file Form 4 out of time by indicating and
supporting that request in accordance with the instructions to the
form. The Board will evaluate any such request in light of the relevant
facts and circumstances and the public interest and may, in its
discretion, grant or deny the request. If the Board grants leave to
file the form out of time, the Form 4 shall be deemed filed and the
provisions of paragraphs (a) and (b) shall apply as if the Form 4 had
been timely filed. A Form 4 that has been submitted out of time may be
withdrawn by the firm at any time before the Board has approved or
disapproved the request for leave to file out of time.

2109. Procedure for Succeeding to the Registration Status of a
Predecessor

    (a) A public accounting firm seeking to succeed to the registration
status of a predecessor registered public accounting firm pursuant to
the provisions of Rule 2108 must do so by filing a Form 4--
    (1) No later than the 14th day after the change or business
combination takes effect, if the change or business combination takes
effect on or after [insert effective date of this rule]; or
    (2) No later than [insert date 14 days after effective date of this
rule], if the change or business combination took effect before [insert
effective date of this rule].
    (b) A public accounting firm filing a Form 4 must do so by filing
the Form 4 in accordance with the instructions to that form. Unless
directed otherwise by the Board, a public accounting firm filing a Form
4 must file the Form 4 and exhibits thereto electronically with the
Board through the Board's Web-based system.
    (c) A Form 4 shall be deemed to be filed on the date that the
public accounting firm submits a Form 4 in accordance with Rule 2109(b)
that includes the signed certification required in Part V of Form 4,
provided, however, that any report so submitted after the applicable
deadline as prescribed in paragraph (a) of this rule, shall not be
deemed filed unless and until the Board, pursuant to Rule 2108(d),
grants leave to file the Form 4 out of time.
    (d) The provisions of Rule 2204 concerning signatures, shall apply
to each signature required by Form 4 as if it were a signature to a
report on Form 3. Rule 2205 concerning amendments, and Rule 2207
concerning assertions of conflicts with non-U.S. laws, shall apply to
any submission on Form 4 as if the submission were a report on Form.

    Form 4--Succeeding to Registration Status of Predecessor

General Instructions

    1. Purpose of This Form. Effective [insert effective date of Rule
2109], this Form must be used to submit information, representations,
and affirmations to the Board, pursuant to Rule 2109, by a public
accounting firm that seeks to succeed to the registration status of a
predecessor firm in circumstances described in Rule 2108.
    2. Defined Terms. The definitions in the Board's rules apply to
this Form. Italicized terms in the instructions to this Form are
defined in the Board's rules. In addition, as used in the instructions
to this Form, the term ``the Firm'' means the public accounting firm
that is submitting this Form to the Board, and the term ``the
predecessor firm'' means the registered public accounting firm
identified in Item 1.1.a of the Form.
    3. Submission of this Form. Unless otherwise directed by the Board,
the Firm must submit this Form, and all exhibits to this Form, to the
Board electronically by completing the Web-based version of this Form
available on the Board's Web site. The Firm must use the predecessor
firm's user ID and password to access the system and submit the Form.
In the event of a transaction involving the combination of multiple
registered public accounting firms, the Firm must access the system
using only the user ID and password of the firm specifically identified
in Item 1.1.a, and not those of any other registered public accounting
firm.
    4. When This Form Should Be Submitted and When It Is Considered
Filed. To succeed to the registration status of the predecessor firm
pursuant to the provisions of Rule 2108(a) or (b), the Firm must
provide the information and representations required by this Form, in
accordance with the instructions to this Form, and must file the Form
no later than the 14th day after the effective date of the change in
form of organization, change in jurisdiction of organization, or
business combination. Different timing requirements apply with respect
to events that occurred before [insert effective date of Rule 2109].
See Rule 2109(a)(2). Form 4 is considered filed when the Firm has
submitted to the Board, through the Board's Web-based reporting system,
a Form 4 that includes the signed certification required in Part V of
Form 4, provided, however, that any Form 4 so submitted after the
applicable filing deadline shall not be deemed filed unless and until
the Board, pursuant to Rule 2108(d), grants leave to file the Form 4
out of time.
    5. Seeking Leave To File This Form Out of Time. To request leave to
file Form 4 out of time, pursuant to the provisions of Rule 2108(d),
the Firm must file the request on Form 4 and must attach as Exhibit
99.5 a detailed statement describing why, despite the passage of time
since the event described on the Form 4, the Board should permit the
Firm to succeed to the registration status of the predecessor firm. Any
Form 4 that has been submitted out of time, and as to which a Board
decision on whether to allow the form to be filed is pending, may be
withdrawn by accessing the pending submission in the Board's Web-based
system and selecting the ``Withdraw'' option.
    6. Completing the Form. The Firm must complete Parts I, II, IV and
V of this Form. Part III should be completed to the extent applicable,
as described more fully in the instructions to Part II of the Form.
    7. Amendments to This Form. Amendments shall not be submitted to
update information into a Form 4 that was correct at the time the Form
was submitted, but only to correct information that was incorrect at
the time the Form was submitted or to provide information that was
omitted from the Form and was required to be provided at the time the
Form was submitted. When submitting a Form 4 to amend an earlier
submitted Form 4, the Firm must supply not only the corrected or
supplemental information, but must include in the amended Form 4 all
information, affirmations, and certifications that were required to be
included in the original Form 4. The Firm may access the originally
filed Form 4 through the Board's Web-based system and make the
appropriate amendments without needing to re-enter all other
information. (Note that, pursuant to Rule 2109(d), the provisions of
Rule 2205 concerning amendments apply to any submission on this Form as
if the submission were a report on Form 3.)

    Note: The Board will designate an amendment to a report on Form
4 as a report on ``Form 4/A.''

    Note: Any change to a Form 4 that was originally submitted out
of time, and as to which a Board decision on whether to allow the
form to be filed is pending, shall not be treated as an amendment.
To make a change to any such pending Form 4 submission, the Firm
must access the pending submission in the Board's Web-based system,
select the ``Withdraw and Replace'' option, and submit a new
completed Form 4 in place of the previously pending submission. The
certification required in Part V of the new submission must be
executed specifically for the replacement version of the Form and
dated accordingly.

    8. Rules Governing This Form. In addition to these instructions,
the rules contained in Part 2 of Section 2 of the Board's rules govern
this Form. Please read these rules and the instructions carefully
before completing this Form.
    9. Requests for Confidential Treatment. The Firm may, by marking
the Form in accordance with the instructions provided, request
confidential treatment of any information submitted in Exhibit 99.3 or
Exhibit 99.5 of this Form that has not otherwise been publicly
disclosed and that either contains information reasonably identified by
the Firm as proprietary information or that is protected from public
disclosure by applicable laws related to confidentiality of
proprietary, personal, or other information. See Rule 2300. If the Firm
requests confidential treatment, it must identify the information in
Exhibit 99.3 or Exhibit 99.5 that it desires to keep confidential, and
include, as Exhibit 99.1 to this Form, an exhibit that complies with
the requirements of Rule 2300(c)(2). The Board will determine whether
to grant confidential treatment requests on a case-by-case basis. If
the Firm fails to include Exhibit 99.1, or includes an Exhibit 99.1
that fails to comply with Rule 2300(c)(2), the request for confidential
treatment may be denied solely on the basis of that failure.
    10. Assertions of Conflicts With Non-U.S. Law. If the Firm is a
foreign registered public accounting firm, the Firm may, unless
otherwise directed by the Board pursuant to Rule 2207(e), decline to
provide the affirmation required by Item 4.1 of this Form and any
answer required by Item 3.2.e of this Form if doing so would constitute
a violation of non-U.S. law by the Firm and the Firm proceeds in
accordance with Rule 2207. (Note that, pursuant to Rule 2109(d), the
provisions of Rule 2207 apply to any submission on this Form as if the
submission were a report on Form 3.) If the firm withholds the
affirmation or answer, the Firm must indicate, in accordance with the
instructions in the relevant Part of the Form, that it has done so.
    11. Language. Information submitted as part of this Form, including
any exhibit to this Form, must be in the English language.

Part I--Identity of the Firm and Contact Persons

Item 1.1 Names of Firm and Predecessor Registered Public Accounting
Firm
    a. State the legal name of the registered public accounting firm to
whose registration status the Firm seeks to succeed.

    Note: The name provided in Item 1.1.a should be the legal name
of the registered public accounting firm as last reported to the
Board on Form 1 or Form 3. This is the firm referred to in this Form
as ``the predecessor firm.'' In accessing and submitting this Form
through the Board's Web-based system, the Firm must use the
predecessor firm's user ID and password.

    b. State the legal name of the Firm filing this Form.

    Note: The name provided in Item 1.1.b will be the name under
which the Firm is registered with the Board if this Form is filed in
accordance with Rule 2109.

    c. If different than the name provided in Item 1.1.b, state the
name or names under which the Firm issues or intends to issue audit
reports.
Item 1.2 Contact Information of the Firm
    a. State the physical address (and, if different, mailing address)
of the Firm's headquarters office.
    b. State the telephone number and facsimile number of the Firm 's
headquarters office. If available, state the Web site address of the
Firm.
Item 1.3 Primary Contact and Signatory
    State the name, business title, physical business address (and, if
different, business mailing address), business telephone number,
business facsimile number, and business e-mail address of a partner or
authorized officer of the Firm who will serve as the Firm's primary
contact with the Board, including for purposes of this Form 4, any
annual reports filed on Form 2, and any special reports filed on Form
3.

Part II--General Information Concerning the Filing of This Form

Item 2.1 Reason for Filing This Form
    Indicate, by checking the box for either Item a or Item b below,
the reason the Firm is filing this Form. Then proceed to the Parts and
Items of this Form indicated parenthetically for the relevant item and
provide the information described there. Provide responses only to
those Parts and Items of the Form specifically indicated for the event
or events that the Firm identifies in this Part II as the reason for
filing this Form. (For example, if the Form is being submitted because
the Firm has changed its form of organization, check the box for Item
2.1.a, and complete only Item 3.1 and Parts IV and V of the Form.
Complete Item 2.2 or Item 2.3 if applicable.)
    a. There has been a change in the Firm's form of organization, or
the Firm has changed the jurisdiction under the law of which it is
organized. (Complete Item 3.1, Part IV, and Part V; complete Item 2.2
or Item 2.3 if applicable.)
    b. There has been an acquisition of a registered public accounting
firm by an entity that was not a registered public accounting firm at
the time of the acquisition, or a registered public accounting firm has
combined with another entity or other entities to form a new legal
entity. (Complete Item 3.2, Part IV, and Part V; complete Item 2.2 or
Item 2.3 if applicable.)
Item 2.2 Request for Leave To File This Form Out of Time
    If this Form is not submitted in accordance with Rule 2109(b) on or
before the filing deadline set by Rule 2109(a), the Firm may request
leave to file this Form 4 out of time by checking the box for this
Item, completing this Form 4 as is otherwise required, and providing,
as Exhibit 99.5 to this Form, a description of the reason(s) the Form
was not timely filed and a statement of the grounds on which the Firm
asserts that the Board should grant leave to file the Form out of time.

    Note: Requests for leave to file Form 4 out of time are not
automatically granted. See Rule 2108(d).

Item 2.3 Amendments
    If this is an amendment to a Form 4 previously filed with the
Board--
    a. Indicate, by checking the box corresponding to this item, that
this is an amendment; and
    b. Identify the specific Item numbers of this Form (other than this
Item 2.3) as to which the Firm's response has changed from that
provided in the most recent Form 4 or amended Form 4 filed by the Firm
with respect to the event reported on this Form.

Part III--Changes in the Firm

Item 3.1 Changes in Form of Organization or in Relevant Jurisdiction
    If this Form 4 is being submitted in connection with a change in
the Firm's form of organization or a change in the jurisdiction under
the law of which the Firm is organized--
    a. State the Firm's current (i.e., after the change in legal form
or jurisdiction) legal form of organization;
    b. Identify the jurisdiction under the law of which the Firm is
organized currently (i.e., after the change in legal form or
jurisdiction);
    c. State the date that the change took effect;
    d. Affirm that, after the change reported or described in this Item
3.1, the Firm is a public accounting firm under substantially the same
ownership as the predecessor firm;

    Note: Neither the Act nor Board rules include any provision by
which a registered public accounting firm may, in effect, transfer
its Board registration to another entity. Rule 2108(a), in
conjunction with this Form, allows the succession of registration
status in circumstances in which a registered public accounting firm
changes its legal form of organization while remaining under
substantially the same ownership. For purposes of this Item, the
Firm is considered to be under substantially the same ownership as
the predecessor firm if a majority of the persons who held an equity
ownership interest in the predecessor also constitute a majority of
the persons who hold an equity ownership interest in the Firm.

    e. If, in connection with the change described in this Item 3.1,
the Firm has obtained, or will practice under, a license or
certification number, authorizing it to engage in the business of
auditing or accounting, that is different from any such license or
certification number previously reported to the Board by the
predecessor firm, provide as to each such license--
    1. The name of the issuing State, agency, board, or other
authority;
    2. The number of the license or certification; and
    3. The date the license or certification took effect;
    f. If, in connection with the change described in this Item 3.1,
any license or certification that authorized the predecessor firm to
engage in the business of auditing or accounting has ceased to be
effective or has become subject to any conditions or contingencies
other than conditions or contingencies imposed on all firms engaged in
the business of auditing or accounting in the jurisdiction, provide, as
to each such license--
    1. The name of the issuing State, agency, board, or other
authority;
    2. The number of the license or certification; and
    3. The date that the authorization ceased to be effective or became
subject to conditions or contingencies.
Item 3.2 Acquisitions of, or Combinations Involving, A Registered
Public Accounting Firm
    a. If this Form 4 is being submitted in connection with a
transaction concerning which a person who holds

an equity ownership interest in the Firm, or is employed by the Firm,
can certify the points set out in Item 3.2.b. and Exhibit 99.4,--
    1. Provide the name of each entity, other than the predecessor
firm, that was involved in the transaction and that was a registered
public accounting firm immediately before the transaction, and as to
each such entity--
    (i) Affirm that the entity has filed with the Board a request for
leave to withdraw from registration on Form 1-WD; and
    (ii) State the date that the entity filed Form 1-WD;
    2. Provide the name of each entity, including any acquiror, that
was involved in the transaction and that was not a registered public
accounting firm immediately before the transaction;
    3. Provide the date that the transaction took effect; and
    4. Provide a brief description of the nature of the transaction.
    b. Provide as Exhibit 99.4 to this Form, a statement in the form
set out below, signed by a person who, immediately before the
transaction, was an officer of, or held an equity ownership interest
in, the predecessor firm and who now either holds an equity ownership
interest in, or is employed by, the Firm. The statement must be
submitted on behalf of the Firm. Exhibit 99.4 must include a signature
that appears in typed form in the electronic submission and a
corresponding manual signature retained by the Firm in accordance with
Rule 2109(d). The signature must be accompanied by the signer's current
title, the signer's title immediately before the event described in
Item 3.2.a, the date of signature, and the signer's business mailing
address, business telephone number, business facsimile number, and
business e-mail address. Other than the insertion of the relevant
names, Exhibit 99.4 must be in the exact following words--
    On behalf of [name of the Firm], I certify that (1) I was an
officer of, or held an equity ownership interest in, [name of
predecessor firm] immediately before the transaction described in Item
3.2.a of the Form 4 to which this exhibit is attached; (2) immediately
before that transaction [name of predecessor firm] was a registered
public accounting firm; (3) as part of that transaction, a majority of
the persons who held equity ownership interests in [name of predecessor
firm] obtained equity ownership interests in, or became employed by,
[name of the Firm]; (4) [name of predecessor firm] intended that [name
of the Firm] succeed to the Board registration status of [name of
predecessor firm] to the extent permitted by the Board's rules; and (5)
[name of predecessor firm] is no longer a public accounting firm.
    c. If, in connection with the transaction described in Item 3.2.a,
the Firm has obtained, or will practice under, a license or
certification number, authorizing it to engage in the business of
auditing or accounting, that is different from any such license or
certification number previously reported to the Board by the
predecessor firm, provide, as to each such license--
    1. The name of the issuing State, agency, board or other authority;
    2. The number of the license or certification; and
    3. The date the license or certification took effect.
    d. If, in connection with the transaction described in Item 3.2.a,
any license or certification that authorized the predecessor firm to
engage in the business of auditing or accounting has ceased to be
effective or has become subject to any conditions or contingencies
other than conditions or contingencies imposed on all firms engaged in
the business of auditing or accounting in the jurisdiction, provide, as
to each such license--
    1. The name of the issuing State, agency, board, or other
authority;
    2. The number of the license or certification; and
    3. The date that the authorization ceased to be effective or became
subject to conditions or contingencies.
    e. Provide a ``yes'' or ``no'' answer to each of the following
questions--
    1. Is there identified in Item 3.2.a.2 any entity that, if it were
filing an application for registration on Form 1 on the date of the
certification in Part V of this Form, would have to provide an
affirmative response to Item 5.1.a of Form 1 in order to file a
complete and truthful Form 1?

    Note: In considering whether an affirmative response would be
required to Item 5.1.a of Form 1, the Firm should take into account
the guidance provided by question number 33 in Frequently Asked
Questions Regarding Registration with the Board, PCAOB Release No.
2003-011A (Nov. 13, 2003).

    2. Is there identified in Item 3.2.a.2 any entity that (i) issued
an audit report with respect to an issuer on or after October 22, 2003
(or, if the entity is a non-U.S. entity, July 19, 2004), while not
registered with the Board, and (ii) has never had an application for
registration on Form 1 approved by the Board?
    3. Is the Firm operating without holding any license or
certification issued by a State, agency, board, or other authority
authorizing the Firm to engage in the business of auditing or
accounting?

    Note: If the Firm answers ``yes'' to any question in Item 3.2.e
or asserts as to any of those questions that non-U.S. law prohibits
it from providing an answer, the Firm cannot succeed outright to the
registration of the predecessor. If this Form 4 is submitted in
accordance with Rule 2109, however, the Firm will temporarily
succeed to the registration of the predecessor for a transitional
period as described in Rule 2108(b)(2) as long as the Firm makes the
representation required in Item 3.2.f below. If the Firm answers
``yes'' to any question in Item 3.2.e or asserts as to any of those
questions that non-U.S. law prohibits it from providing an answer
but fails to make the representation required in Item 3.2.f, this
Form 4 will not be accepted for filing and the Firm will not succeed
to the predecessor's registration even on a temporary basis. See
Rule 2108(b)(2).

    f. If the Firm answered ``yes'' to any question in Item 3.2.e or
asserts as to any of those questions that non-U.S. law prohibits it
from providing an answer, affirm, by checking the box corresponding to
the appropriate item, that one of the following statements is true--
    1. The Firm has filed an application for registration on Form 1 on
or after the date provided in Item 3.2.a.3.
    2. The Firm intends to file an application for Registration on Form
1 no later than 45 days after the date provided in Item 3.2.a.3.

Part IV--Continuing Obligations

Item 4.1 Continuing Consent to Cooperate
Affirm that--
    a. The Firm consents to cooperate in and comply with any request
for testimony or the production of documents made by the Board in
furtherance of its authority and responsibilities under the Sarbanes-
Oxley Act of 2002;
    b. The Firm has secured from each of its associated persons, and
agrees to enforce as a condition of each such person's continued
employment by or other association with the Firm, a consent indicating
that the associated person consents to cooperate in and comply with any
request for testimony or the production of documents made by the Board
in furtherance of its authority under the Sarbanes-Oxley Act of 2002,
and that the associated person understands and agrees that such consent
is a condition of his or her continued employment by or other
association with the Firm; and
    c. The Firm understands and agrees that cooperation and compliance,
as

described in Item 4.1.a., and the securing and enforcing of consents
from its associated persons as described in Item 4.1.b., is a condition
to the continuing effectiveness of the registration of the Firm with
the Board.

    Note: The affirmation in Item 4.1.b. shall not be understood to
include an affirmation that the Firm has secured such consents from
any associated person that is a registered public accounting firm.

    Note: The affirmation in Item 4.1.b. shall not be understood to
include an affirmation that the Firm has secured such consents from
any associated person that is a foreign public accounting firm in
circumstances where that associated person asserts that non-U.S. law
prohibits it from providing the consent, so long as the Firm
possesses in its files documents relating to the associated person's
assertion about non-U.S. law that would be sufficient to satisfy the
requirements of subparagraphs (2) through (4) of Rule 2207(c) if
that associated person were a registered public accounting firm
filing a Form 2 and withholding this affirmation. This exception to
the affirmation in Item 4.1.b. does not relieve the Firm of its
obligation to enforce cooperation and compliance with Board demands
by any such associated person as a condition of continued
association with the Firm.

    Note: If the Firm is a foreign registered public accounting
firm, the affirmations in Item 4.1 that relate to associated persons
shall be understood to encompass every accountant who is a
proprietor, partner, principal, shareholder, officer, or manager of
the Firm and who provided at least ten hours of audit services for
any issuer during the reporting period.

Item 4.2 Continuing Responsibility to the Board for Previous Conduct
    Affirm that, for purposes of the Board's authority with respect to
registered public accounting firms, including but not limited to the
authority to require reporting of information and the authority to
impose disciplinary sanctions, the Firm either has retained or assumes
responsibility for the conduct of any predecessor registered public
accounting firm before the change or business combination reported on
this Form took effect.

    Note: As used in Item 4.2 the term ``predecessor registered
public accounting firm,'' means (1) in circumstances not involving a
transaction described in Item 3.2, the predecessor firm and (2) in
circumstances involving a transaction described in Item 3.2, each
registered public accounting firm that was involved in the business
combination.

    Note: The continuing responsibility in Item 4.2 includes, among
other things, responsibility for reporting information on Form 2 and
events on Form 3. Thus, for example, if a registered public
accounting firm experienced a Form 3 reportable event before the
event that is the subject of this Form, the Firm, as successor, has
the obligation to report that event on Form 3, and bears
responsibility for any failure by any predecessor to have filed a
timely Form 3 to report the matter.

    Note: The Board's rules do not require that any entity retain or
assume responsibility as set forth above. In the absence of an
affirmation that it retains or assumes responsibility for such
conduct at least for purposes of the Board's authority, however, an
entity cannot succeed to the Board registration status of any
predecessor entity. See Rule 2108.

Part V--Certification of the Firm

Item 5.1 Signature of Partner or Authorized Officer
    This Form must be signed on behalf of the Firm by an authorized
partner or officer of the Firm including, in accordance with Rule
2109(d), both a signature that appears in typed form within the
electronic submission and a corresponding manual signature retained by
the Firm. The signer must certify that--
    a. The signer is authorized to sign this Form on behalf of the
Firm;
    b. The signer has reviewed this Form;
    c. Based on the signer's knowledge, this Form does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading; and
    d. Either--
    1. Based on the signer's knowledge, the Firm has not failed to
include in this Form any information or affirmation that is required by
the instructions to this Form, with respect to the event or events
being described on this Form, or
    2. Based on the signer's knowledge--
    (A) The Firm is a foreign public accounting firm and has not failed
to include in this Form any information or affirmation that is required
by the instructions to this Form other than an affirmation required by
Item 4.1 and/or an answer to Item 3.2.e.; and
    (B) The Firm asserts that it is prohibited by non-U.S. law from
providing any such withheld affirmation or response to the Board on
this Form and, with respect to each such withheld affirmation or
response, the Firm has made the efforts described in PCAOB Rule 2207(b)
and has in its files the materials described in PCAOB Rule 2207(c).
    The signature must be accompanied by the signer's title, the
capacity in which the signer signed the Form, the date of signature,
and the signer's business mailing address, business telephone number,
business facsimile number, and business e-mail address.

Part VI--Exhibits

    To the extent applicable under the foregoing instructions, each
report must be accompanied by the following exhibits:

Exhibit 99.1 Request for Confidential Treatment
Exhibit 99.3 Materials Required by Rule 2207(c)(2)-(4)--Submit Only as
an Exhibit to an Amended Form 4 in Response to a Request Made Pursuant
to Rule 2207(d)
Exhibit 99.4 Acknowledgment Concerning Registration Status in Certain
Transactions
Exhibit 99.5 Statement in Support of Request for Leave To File Form 4
Out of Time.

II. Board's Statement of the Purpose of, and Statutory Basis for, the
Proposed Rule

    In its filing with the Commission, the Board included statements
concerning the purpose of, and basis for, the proposed rule. The text
of these statements may be examined at the places specified in Item IV
below. The Board has prepared summaries, set forth in sections A, B,
and C below, of the most significant aspects of such statements.

A. Board's Statement of the Purpose of, and Statutory Basis for, the
Proposed Rules

(a) Purpose
    Under Section 102(a) of the Sarbanes-Oxley Act of 2002 and PCAOB
Rule 2100, a public accounting firm must be registered with the PCAOB
in order to prepare or issue audit reports for public companies or to
play a substantial role in the preparation or furnishing of such audit
reports. To become registered, a public accounting firm files an
application for registration on PCAOB Form 1, which the Board may
approve or disapprove. The proposed rules identify the circumstances in
which a firm may succeed to the registration status of a predecessor
registered firm, without filing a new Form 1, and provide a mechanism
for the firm to do so.
    The rules afford the opportunity for continuity of registration in
two general categories of circumstances: (1) Changes related to a
firm's legal form of organization or the jurisdiction in which it is
organized, and (2) transactions in which a registered firm is acquired
by an unregistered entity or combines with other entities to form a new
legal entity. The events to which the rules apply are

events for which a firm plans, not unanticipated events to which a firm
reacts. The rules are designed to facilitate a firm's ability to factor
into its planning, and to predict with certainty, whether and how
continuity of registration can be maintained.
    The rules provide for a form the firm must file (Form 4), set a
deadline for filing the form, and require certain information and
representations in the form. If the firm files the form within the
required timeframe, provides the required representations, and
certifies that all required information is included, then continuity of
registration is automatic, without the need for separate Board action.
The rules and form also build in safeguards to ensure that the Form 1
process is not circumvented in circumstances where that process is more
appropriate than Form 4 succession.
    To obtain continuing effectiveness of an existing registration, the
firm must acknowledge the continuity of, and commit to honor, certain
obligations that accompany the registration status. Those obligations
fall into two categories: continuing consent to cooperate with the
Board and continuing responsibility to the Board for the conduct of
predecessor registered firms.
    With respect to circumstances in which a registered firm is
acquired by an unregistered entity, or when a registered firm combines
with other entities to form a new legal entity, the proposed Form 4
requires, among other things, information that determines whether
succession to the predecessor's registration is permanent or temporary.
Based on this information, succession may be outright and permanent or
may only be temporary for a transition period intended to allow to the
firm to seek registration through the Form 1 process.
    For succession to registration to take effect automatically upon
filing under the rules, Form 4 must be filed within 14 days after the
effective date of the change in legal form or other event. The rules
make some allowance for late filing. A firm that fails to file Form 4
within the 14-day period may submit a late Form 4 and request that the
Board grant leave to file the form out of time. In a late submission,
the firm should include as an exhibit to the form a statement in
support of its request for leave to file out of time. If the Board
grants the request and allows the form to be filed, the firm will
succeed to the predecessor's registration.
    The proposed rules would take effect 60 days after Securities and
Exchange Commission approval.
(b) Statutory Basis
    The statutory basis for the proposed rule is Title I of the Act.

B. Board's Statement on Burden on Competition

    The Board does not believe that the proposed rules will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act. The proposed rules provide a
registration succession mechanism that firms may elect to use but are
not required to use.

C. Board's Statement on Comments on the Proposed Rules Received from
Members, Participants or Others

    The Board released the proposed rules and form instructions for
public comment in Release No. 2006-005 (May 23, 2006). A copy of
Release No. 2006-005 and the comment letters received in response to
the PCAOB's request for comment are available on the PCAOB's Web site
at http://www.pcaobus.org. The Board received five written comment
letters. The Board has clarified and modified certain aspects of the
proposed rules and form instructions in response to the comments it
received, as discussed below.
    Commenters addressed the Form 4 item that requires a Form 4 filer
to affirm that it retains or assumes responsibility for the conduct of
predecessor registered firms for purposes of the Board's authority.
Commenters expressed concern that the affirmation might erode otherwise
valid legal defenses in contexts such as criminal or private civil
proceedings, and suggested that the Board should make clear that no
such result is intended. The Board reiterates what it said in proposing
the requirement for comment: The affirmation of continuing
responsibility for a predecessor's conduct is not intended to create
any new liability, nor is it intended to affect the legal consequences
of the transaction with respect to any person or entity other than the
Board. As between the firm and the Board, however, the Board views the
affirmation as indispensable if a firm wishes to make use of the Form 4
process. In an effort to reduce the possibility of misunderstanding
about the intended scope, the Board has made slight changes to the
wording of Item 4.2--such as changing the heading to specify that the
item is about continuing responsibility ``to the Board,'' and removing
the broad adjective ``legal'' in describing the nature of the
responsibility being retained or assumed--but the Board is adopting the
substance of the requirement essentially as proposed.
    One commenter expressed the view that a successor firm should not
be precluded from assuming a predecessor firm's registration status
just because less than a majority of its predecessor's owners remained
with the successor firm. In the Board's view, that suggestion is
unworkable for a process intended to provide for automatic succession
upon the satisfaction of bright line criteria. Without supplemental
information and the intervention of judgment, the Board could not
provide for succession in those circumstances without running a risk
that more than one ``successor'' entity might lay claim to the same
predecessor's registration.
    One commenter suggested that the Board should define
``acquisition'' in this context, and raised questions concerning
whether, to be an ``acquisition'' for which Form 4 succession is
available, the transaction must involve acquisition of the predecessor
firm's assets or a substantial portion thereof. For Form 4 succession
to be available, the Board does not require that the transaction
include anything other than what is described in the Exhibit 99.4
certification: a majority of the equity owners in a predecessor
registered firm have become equity owners or employees of an
unregistered firm, and the predecessor registered firm ceases to be a
public accounting firm. For clarity on this point, the wording of Item
3.2.a. has been revised to refer to an acquisition of ``any portion
of'' a registered public accounting firm, though Form 4 succession
following any such acquisition is available only if all of the Exhibit
99.4 criteria are satisfied.
    The Exhibit 99.4 certification also includes a statement that the
predecessor registered firm intended for the successor firm to succeed
to its registration status. One commenter questioned the
appropriateness of allowing a single individual to certify that the
predecessor intended such succession, and expressed concern about the
Board acting on such a certification by someone who may only have had a
marginal role in the predecessor registered firm. As proposed and
adopted, however, the required certification would be included in a
filing that cannot be made except by the successor firm, which cannot
make the filing unless a majority of the predecessor's owners are part
of that successor firm. In those circumstances, it is not necessary to
more specifically limit which of the predecessor's former owners or
officers must execute the required certification.

    In the context of a combination of firms, Form 4 succession is
available only if the predecessor registered firm ceases to exist as a
public accounting firm. One commenter questioned this requirement and
suggested that a firm should be able to spin off its issuer audit
business, including its registration status, to another firm and still
remain a public accounting firm. The Board is not precluding the
possibility that a firm can spin off its issuer audit business and
still remain a public accounting firm; rather, the Board is identifying
this criterion--whether the predecessor continues to exist as a public
accounting firm--as relevant to whether registration status can move to
the new firm through the Form 4 process or whether that firm can obtain
registration status only through the Form 1 process.
    If the predecessor registered firm continues to exist as the same
legal entity that registered with the Board and continues to be engaged
in the practice of public accounting, then the transaction suggested by
the commenter would involve an existing public accounting firm--an
entity which can legally be registered--conveying its registration to
another public accounting firm, a transaction that the Board views as
fundamentally inappropriate. Accordingly, in that circumstance, the
firm to which the predecessor's issuer audit practice moved could not
use the Form 4 process but would need to apply for registration on Form
1--which it could do even before the relevant transaction takes effect.
    In contrast, if the legal entity that originally registered ceases
to exist as a public accounting firm, then it cannot legally be a
registered public accounting firm. For that entity's registration
status to move with elements of that entity into another entity,
through the Form 4 process, does not raise the same concerns about
transferability of registration from one existing public accounting
firm to another.
    One commenter questioned the requirement to file a Form if a firm
involved in the transaction would need to answer ``yes'' on the Form 1
disciplinary history question if filing a Form 1. The commenter
suggested that this requirement could be punitive, especially for large
registered firms that combine with smaller firms. Item 3.2.e. of Form
4, however, does not pose any significant risk of that sort. If a large
registered firm acquires a smaller unregistered firm, the large
registered firm would merely be required to report that in its annual
report on Form 2, without resort to the Form 4 process. Alternatively,
if a large registered firm were involved in a transaction that did lead
to a Form 4 filing, the disciplinary histories of that firm and its
associated persons would be irrelevant to Item 3.2.e. because the large
firm was already registered at the time of the transaction. Item 3.2.e.
relates only to disciplinary history information of entities (and their
associated persons) that were not already registered at the time of the
transaction.
    Commenters suggested that the proposed 90-day limit on the
temporary transition period (for firms that may not succeed permanently
to the predecessor's registration) was too short and too inflexible.
They noted that the Board has 45 days to act on an application, and
also noted that the Board could ask for additional information, thereby
restarting the 45-day clock and potentially pushing a registration
decision out beyond the 90-day period. One commenter suggested revising
the proposal so that the temporary registration status would continue
until the Board makes a final decision on the Form 1. Another suggested
revising the proposal to give the Board flexibility to extend the
temporary registration status in situations where the Board does not
take final action on the Form 1 within the 90 days.
    The Board does not believe it would be appropriate to adopt a rule
providing for a temporary registration period that continues until the
Board acts on the Form 1, since firms could then keep the temporary
registration status in place by not filing Form 1 or by delaying a
response to a Board request for additional information on the
application. The Board, however, sees the value in a measure of
flexibility on this point. Accordingly, in Rule 2108(b)(2), the Board
has retained the proposed 90 days as the initial transition period but
has also added certain qualifications. If the Board formally requests
additional information from the firm with less than 60 days remaining
in the initial 90-day period, the temporary registration will continue
to the date that is 60 days after the date of the Board's request. The
effect will be that a firm has 15 days to respond to the Board's
request if the firm wants to stay on track to keep its temporary
registration until Board action on the Form 1. If the Board makes
follow-up requests for information, the Board has the discretion to
extend the temporary registration to a later date. Depending on the
circumstances, however, the Board might, in making a follow-up request,
conclude that further extension of the temporary registration is
unwarranted, and could communicate that to the firm in the second
request.
    One commenter suggested that the Board should adopt procedures by
which a firm that anticipates that a successor will need to file a new
Form 1 could review the relevant facts with the Board's staff before
the transaction to determine whether the staff sees significant
obstacles to approving the successor's application. In the Board's
view, however, to the extent it is appropriate for the staff to review
information relevant to a prospective Form 1 filing, the staff may
already do so without the need for special procedures.
    One commenter addressed the requirement that, in the context of
more than two firms combining, any registered firm other than the firm
whose registration is intended to continue, must, before Form 4 is
filed, file a request to withdraw from registration. The commenter
expressed concern that there may be a registration gap for the
predecessor firm that files the Form 1-WD prior to the transaction if
the withdrawal is granted prior to the close of the transaction. The
representation concerning the filing of a 1-WD, however, does not apply
to the ``predecessor firm,'' but only to other registered firms, if
any, that are merging into the filing entity as part of the
transaction. In connection with any Form 4 filing, the firm designated
as the ``predecessor firm'' should not seek leave to withdraw from
registration. In addition, in transactions involving additional
registered firms, the Form 1-WD filings need not occur far in advance
of the Form 4 filing. The Form 4 requirements can be satisfied even if
the relevant Form 1-WD filings occur immediately before the Form 4
filing.
    One commenter noted that changes in licenses and certifications may
occur after the filing of a Form 4 and suggested that the Board should
expressly state that such changes may be described in an amendment to
Form 4. Because a firm succeeds to registration automatically upon the
Form 4 being filed, however, the firm immediately becomes subject to
the same annual and special reporting requirements as any other
registered firm. Accordingly, a license change that occurs after the
filing of the Form 4 should be reported on Form 3 in accordance with
Rule 2203.
    For succession to registration to take effect automatically upon
filing under the rules, Form 4 must be filed within 14 days after the
effective date of the change in legal form or other event. Commenters
expressed a view that 14 days is too short a period, and suggested

that it was insufficient time for non-U.S. firms to evaluate the impact
of non-U.S. law in a particular case or to obtain consents, waivers,
and legal opinions relating to potential legal conflicts. More
generally, one commenter noted that 14 days does not allow sufficient
time after the event for a firm to assess its reporting obligations and
complete the form. Two commenters suggested expanding the 14-day period
to a 45-day period.
    The Board has considered these comments but has decided to adopt
the 14-day deadline. Given the purpose of the filing--avoiding breaks
in registration status--the Board believes that the rule should require
filing of the form in as short a period as reasonably possible, so that
any questions about the entity's registration status are kept to as
narrow a period as possible. In addition, the events giving rise to a
Form 4 are events for which firms plan, and such planning can encompass
prompt filing of the relatively short and simple Form 4.
    Even so, the rules make some allowance for late filing. A firm that
fails to file Form 4 within the 14-day period may submit a late Form 4
and request that the Board grant leave to file the form out of time. In
a late submission, the firm should include as an exhibit to the form a
statement in support of its request for leave to file out of time. If
the Board grants the request and allows the form to be filed, the firm
will succeed to the predecessor's registration (either outright or for
the transitional period described above).
    One commenter sought clarification of a firm's registration status
during a period in which a Form 4 is pending with a request for leave
to file out of time, suggesting that it is unclear whether the firm can
issue audit reports while the request is pending. As discussed in the
proposing release, a firm submitting a late Form 4 should make no
assumption about whether the Board will allow it to be filed.
Accordingly, during the period that the request is pending with the
Board, a firm should not assume that it is a registered public
accounting firm and, therefore, should not assume that it may issue
audit reports. The rule's provision for late submissions is not
principally intended as an accommodation to firms, but is intended to
afford the Board the opportunity to allow Form 4 succession, despite a
late filing, when doing so would be consistent with the public
interest. Eventual favorable Board action on the request would
effectively confer registered status on the firm back to the date of
the transaction that is the subject of the Form 4 filing (just as with
a timely filed Form 4), but unfavorable Board action would mean that
the entity filing the Form 4 was never registered.
    One commenter suggested that non-U.S. firms might also sometimes
face legal obstacles to answering the Item 3.2.e. yes-no questions that
determine whether succession is permanent or temporary. The Board has
determined to allow non-U.S. firms to withhold those answers on legal
conflict grounds. The consequence of doing so, however, will be the
same as if the firm had supplied a ``no'' answer: the succession
afforded by the Form 4 process will only be for a transitional period
to allow the firm an opportunity to seek registration through the Form
1 process.
    Form 4 limits the categories of information for which a firm can
request confidential treatment. Confidential treatment requests that
have no genuine basis in law needlessly distract Board resources and
delay the availability of information to the public. In the case of
Form 4, the basic, nonpersonal, and nonproprietary nature of the
required information leads the Board to foreclose confidential
treatment requests for almost all of the items in the form.
    The Board encouraged commenters to comment on whether the proposal
overlooked actual or realistically foreseeable legal requirements to
maintain the confidentiality of information. Commenters who addressed
the point did so only in vague terms without providing any specific
basis for concluding that the proposal overlooked any potentially
applicable protection. One commenter stated generally that certain
information required by Form 4 may need to be kept confidential under
non-U.S. law or by the terms of an agreement between predecessor and
successor entities. The commenter did not identify what information in
Form 4 might fall into that category and did not provide an example of
the type of non-U.S. law that might protect its confidentiality.
Moreover, in the absence of relevant law, an agreement between private
parties to keep information confidential does not in itself satisfy the
confidential treatment criteria described in Rule 2300(b)(1). The
commenter also expressed slightly more focused concern about the
protection of ``information regarding the acquisition,'' but did not
specify what information, among the very basic acquisition-related
information required by Form 4, could be considered confidential or
proprietary.
    Another commenter raised potential confidentiality concerns about
Item 3.2.e.1. As adopted, that Item asks whether the acquisition or
combination involves any previously unregistered entity that, if it
were filing an application for registration on Form 1, would have to
provide an affirmative response to Item 5.1.a, which asks about the
existence of certain specified disciplinary histories. The commenter
suggested that indicating whether a firm would have to answer ``yes''
to that question might lead others to draw unfavorable conclusions that
could expose the firm to an increased risk of liability claims. Whether
that is true, though, is a separate question from whether that ``yes''
answer is information that is protected from disclosure by applicable
law. The commenter did not suggest how that would be the case.
Moreover, as a practical matter, any reader of the Form 4 would
recognize that a firm's request for confidential treatment of its
answer to Item 3.2.e.1. would mean that its answer was ``yes.''
    In weighing these comments, the Board views as relevant the fact
that Form 4 is not a required filing. While the Board does not view its
optional nature as justification for dispensing with the possibility of
confidential treatment, the Board does not believe that the comments on
this point warrant any change from what was proposed.

III. Date of Effectiveness of the Proposed Rules and Timing for
Commission Action

    Within 60 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the Board consents, the Commission will:
    (a) By order approve such proposed rules; or
    (b) Institute proceedings to determine whether the proposed rules
should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed
rules are consistent with the requirements of Title I of the Act.
Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/pcaob.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File

Number PCAOB 2008-05 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number PCAOB 2008-05. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/pcaob/
shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule that are filed
with the Commission, and all written communications relating to the
proposed rule between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for inspection and copying in the
Commission's Public Reference Room, on official business days between
the hours of 10 a.m. and 3 p.m. Copies of such filing will also be
available for inspection and copying at the principal office of the
PCAOB. All comments received will be posted without change; we do not
edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File No. PCAOB-2008-05 and should be
submitted on or before July 20, 2009.

    By the Commission.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-14293 Filed 6-17-09; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register: May 8, 2007 (Volume 72, Number 88)]
[Rules and Regulations]
[Page 25967-25969]
[DOCID:fr08my07-12]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2006-0817; FRL-8309-9]

Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Redesignation of the Parkersburg, WV, Portion of the
Parkersburg-Marietta, WV-OH 8-Hour Ozone Nonattainment Area to
Attainment and Approval of the Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a redesignation request and a State
Implementation Plan (SIP) revision submitted by the State of West
Virginia. The West Virginia Department of Environmental Protection
(WVDEP) is requesting that the Parkersburg, West Virginia (Parkersburg)
portion of the Parkersburg-Marietta, WV-OH area (herein referred to as
the ``Area'') be redesignated as attainment for the 8-hour ozone
national ambient air quality standard (NAAQS). In conjunction with its
redesignation request, the State submitted a SIP revision consisting of
a maintenance plan for Parkersburg that provides for continued
attainment of the 8-hour ozone NAAQS for the next 12 years, until 2018.
Concurrently, EPA is approving the maintenance plan as meeting the
requirements of Clean Air Act (CAA) 175A(b) with respect to the 1-hour
ozone maintenance plan update. EPA is also approving the adequacy
determination for the motor vehicle emission budgets (MVEBs) that are
identified in the Parkersburg 8-hour maintenance plan for purposes of
transportation conformity, and is approving those MVEBs. EPA is
approving the redesignation request and the maintenance plan revision
to the West Virginia SIP in accordance with the requirements of the
CAA.

DATES: Effective Date: This final rule is effective on June 7, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2006-0817. All documents in the docket are listed in
the http://www.regulations.gov website. Although listed in the electronic

docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through http://www.regulations.gov or in hard

copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State
submittal are available at the West Virginia Department of
Environmental Protection, Division of Air Quality, 601 57th Street,
SE., Charleston, WV 25304.

FOR FURTHER INFORMATION CONTACT: Amy Caprio,<PHONE_NUMBER>, or by e-
mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On January 12, 2007 (72 FR 1474), EPA published a notice of
proposed rulemaking (NPR) for the State of West Virginia. The NPR
proposed approval of West Virginia's redesignation request and a SIP
revision that establishes a maintenance plan for Parkersburg that sets
forth how Parkersburg will maintain attainment of the 8-hour ozone
NAAQS for the next 12 years. The formal SIP revision was submitted by
the WVDEP on September 8, 2006. Other specific requirements of West
Virginia's redesignation request SIP revision for the maintenance plan
and the rationales for EPA's proposed actions are explained in the NPR
and will not be restated here.
    On February 9, 2007, EPA received a comment, from the West Virginia
Manufacturers Association, in support of its January 12, 2007 NPR.
Also, on February 15, 2007, EPA received a comment, from the West
Virginia Chamber of Commerce, in support of its January 12, 2007 NPR.
EPA recognizes the support provided in these comments but does not
believe any specific response to comments is necessary with respect to
these comments.
    Additionally, the United States Court of Appeals for the District
of Columbia Circuit recently vacated EPA's April 30, 2004 ``Final Rule
to Implement the 8-Hour Ozone National Ambient Standard'' (the Phase 1
implementation rule). South Coast Air Quality Management District v.
EPA, 472 F.3d 882 (D.C. Cir. 2007). EPA issued a supplemental proposed
rulemaking that set forth its views on the potential effect of the
Court's ruling on this and other proposed redesignation actions. 72 FR
13452 (March 22, 2007). EPA proposed to find that the Court's ruling
does not alter any requirements relevant to the proposed redesignations
that would prevent EPA from finalizing these redesignations, for the
reasons fully explained in the supplemental notice. EPA provided a 15-
day review and comment period on this supplemental proposed rulemaking.
The public comment period closed on April 6, 2007. EPA received six
comments, all supporting EPA's supplemental proposed rulemaking, and
supporting redesignation of the affected areas. EPA recognizes the
support provided in these comments as well, but again, we do not
believe any specific response to comments is necessary with respect to
these comments. In addition, several of these comments included
additional rationale for proceeding with these proposed redesignations.
EPA had not requested comment on any additional rationale, does not
believe any additional rationale is necessary, and similarly does not
believe any specific response to these comments is necessary, and thus
has not provided any.

II. Final Action

    EPA is approving the State of West Virginia's September 8, 2006
redesignation request and maintenance plan because the requirements for
approval have been satisfied. EPA has evaluated West Virginia's
redesignation request, submitted on September 8, 2006, and determined
that it meets the redesignation criteria set forth in section
107(d)(3)(E) of the CAA. EPA believes that the redesignation request
and monitoring data demonstrate that Parkersburg has attained the 8-
hour ozone standard. The final approval of this redesignation request
will change the designation of the Parkersburg, West Virginia portion
of the Area from nonattainment to attainment for the 8-

hour ozone standard. EPA is approving the associated maintenance plan
for Parkersburg, submitted on September 8, 2006, as a revision to the
West Virginia SIP. EPA is approving the maintenance plan for
Parkersburg because it meets the requirements of section 175A and
175A(b) with respect to the 1-hour ozone maintenance plan update. EPA
is also approving the MVEBs submitted by West Virginia in conjunction
with its redesignation request. In this final rulemaking, EPA is
notifying the public that we have found that the MVEBs for
NOX and VOCs in the Parkersburg portion of the 8-hour ozone
maintenance plan are adequate and approved for conformity purposes. As
a result of our finding, Wood County must use the MVEBs from the
submitted 8-hour ozone maintenance plan for future conformity
determinations. The adequate and approved MVEBs are provided in the
following table:

  Adequate and Approved Motor Vehicle Emissions Budgets (MVEBs) in Tons
                              Per Day (TPD)
------------------------------------------------------------------------
                       Budget year                          NOX     VOC
------------------------------------------------------------------------
2009....................................................     4.1     3.0
2018....................................................     2.0     1.9
------------------------------------------------------------------------

    Parkersburg is subject to the CAA's requirements for basic ozone
nonattainment areas until and unless it is redesignated to attainment.

III. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
final action is not a ``significant regulatory action'' and therefore
is not subject to review by the Office of Management and Budget. For
this reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). This
action approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by State law.
Redesignation of an area to attainment under section 107(d)(3)(e) of
the Clean Air Act does not impose any new requirements on small
entities. Redesignation is an action that affects the status of a
geographical area and does not impose any new regulatory requirements
on sources. Accordingly, the Administrator certifies that this final
rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). Because this rule approves pre-existing requirements
under state law and does not impose any additional enforceable duty
beyond that required by state law, it does not contain any unfunded
mandate or significantly or uniquely affect small governments, as
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This final rule also does not have a substantial direct effect on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes, as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor
will it have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999), because it affects the status of a geographical area, does
not impose any new requirements on sources, or allow the state to avoid
adopting or implementing other requirements, and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. This final rule also is not subject
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is
not economically significant. In reviewing SIP submissions, EPA's role
is to approve state choices, provided that they meet the criteria of
the Clean Air Act. In this context, in the absence of a prior existing
requirement for the State to use voluntary consensus standards (VCS),
EPA has no authority to disapprove a SIP submission for failure to use
VCS. It would thus be inconsistent with applicable law for EPA, when it
reviews a SIP submission; to use VCS in place of a SIP submission that
otherwise satisfies the provisions of the Clean Air Act. Redesignation
is an action that affects the status of a geographical area and does
not impose any new requirements on sources. Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
final rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 9, 2007. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action.
    This action, to approve the redesignation request, maintenance plan
and adequacy determination for MVEBs for Parkersburg, may not be
challenged later in proceedings to enforce its requirements. (See
section 307(b)(2)).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Nitrogen Dioxides, Reporting and recordkeeping
requirements, Volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks,
Wilderness areas.

    Dated: April 26, 2007.
Judith Katz,
Acting Regional Administrator, Region III.

0
40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart XX--West Virginia

0
2. In Sec.  52.2520, the table in paragraph (e) is amended by adding an
entry for the 8-Hour Ozone Maintenance Plan, Parkersburg-Marietta, WV-
OH Area at the end of the table to read as follows:

Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP        Applicable           State
            revision               geographic area   submittal date   EPA approval date   Additional explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
8-Hour Ozone Maintenance Plan    Wood County.......        09/08/06  05/08/07 [Insert
 for the Parkersburg-Marietta,                                        page number where
 WV-OH Area.                                                          the document
                                                                      begins].
----------------------------------------------------------------------------------------------------------------

PART 81--[AMENDED]

0
3. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

0
4. In Sec.  81.349 the table entitled ``West Virginia--Ozone (8-Hour
Standard)'' is amended by revising the entry for the Parkersburg-
Marietta, WV-OH Area to read as follows:

Sec.  81.349  West Virginia.

* * * * *

                                              West Virginia--Ozone
                                                [8-Hour Standard]
----------------------------------------------------------------------------------------------------------------
                                              Designation a                      Category/Classification
         Designated Area         -------------------------------------------------------------------------------
                                      Date 1              Type                 Date 1                Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Parkersburg-Marietta, WV-OH Area
Wood County.....................        05/08/07  Attainment..........

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian country located in each county or area except otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *
[FR Doc. E7-8678 Filed 5-7-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 85 (Friday, May 1, 2020)]
[Rules and Regulations]
[Pages 25285-25286]
[FR Doc No: 2020-09226]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2020-0006; Airspace Docket No. 17-ASW-26]
RIN 2120-AA66

Amendment of VOR Federal Airways V-17, V-18, V-62, V-94, V-163,
and V-568 in the Vicinity of Glen Rose, TX

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action amends VHF Omnidirectional Range (VOR) Federal
airways V-17, V-18, V-62, V-94, V-163, and V-568 in the vicinity of
Glen Rose, TX. The modifications are necessary due to the planned
decommissioning of the VOR portion of the Glen Rose, TX, VOR/Tactical
Air Navigation (VORTAC) navigation aid (NAVAID), which provides
navigation guidance for portions of the affected airways. The Glen Rose
VOR is being decommissioned as part of the FAA's VOR Minimum
Operational Network (MON) program.

DATES: Effective date 0901 UTC, July 16, 2020. The Director of the
Federal Register approves this incorporation by reference action under
Title 1 Code of Federal Regulations part 51, subject to the annual
revision of FAA Order 7400.11 and publication of conforming amendments.

ADDRESSES: FAA Order 7400.11D, Airspace Designations and Reporting
Points, and subsequent amendments can be viewed online at https://www.faa.gov/air_traffic/publications/. For further information, you can
contact the Rules and Regulations Group, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone:<PHONE_NUMBER>. The Order is also available for inspection
at the National Archives and Records Administration (NARA). For
information on the availability of FAA Order 7400.11D at NARA, email:
<EMAIL_ADDRESS>or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

FOR FURTHER INFORMATION CONTACT: Colby Abbott, Rules and Regulations
Group, Office of Policy, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. This regulation is within the scope of that
authority as it would modify the route structure as necessary to
preserve the safe and efficient flow of air traffic within the National
Airspace System.

History

    The FAA published a notice of proposed rulemaking (NPRM) for Docket
No. FAA-2020-0006 in the Federal Register (85 FR 3288; January 21,
2020), amending VOR Federal airways V-17, V-18, V-62, V-94, V-163, and
V-568 in the vicinity of Glen Rose, TX, due to the planned
decommissioning of the VOR portion of the Glen Rose, TX, VORTAC.
Interested parties were invited to participate in this rulemaking
effort by submitting written comments on the proposal. No comments were
received.
    Subsequent to the NPRM, the FAA published a rule for Docket No.
FAA-2018-1028 in the Federal Register (85 FR 13731; March 10, 2020),
amending VOR Federal airway V-18 by removing the airway segment between
the Vulcan, AL, VORTAC and the Colliers, SC, VORTAC. That airway
amendment was effective May 21, 2020, and is included in this rule.
    VOR Federal airways are published in paragraph 6010(a) of FAA Order
7400.11D dated August 8, 2019, and effective September 15, 2019, which
is incorporated by reference in 14 CFR 71.1. The VOR Federal airways
listed in this document will be subsequently published in the Order.
    FAA Order 7400.11, Airspace Designations and Reporting Points, is
published yearly and effective on September 15.

Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11D, Airspace Designations and
Reporting Points, dated August 8, 2019, and effective September 15,
2019. FAA Order 7400.11D is publicly available as listed in the
ADDRESSES section of this document. FAA Order 7400.11D lists Class A,
B, C, D, and E airspace areas, air traffic service routes, and
reporting points.

The Rule

    The FAA is amending Title 14 Code of Federal Regulations (14 CFR)
part 71 by modifying VOR Federal airways V-17, V-18, V-62, V-94, V-163,
and V-568. The planned decommissioning of the VOR portion of the Glen
Rose, TX, VORTAC NAVAID has made this action necessary. The VOR Federal
airway changes are outlined below.
    V-17: V-17 extends between the Brownsville, TX, VORTAC and the
Goodland, KS, VORTAC. The airway segment overlying the Glen Rose, TX,
VORTAC between the Waco, TX, VORTAC and the Millsap, TX, VORTAC is
removed. The unaffected portions of the existing airway remain as
charted.
    V-18: V-18 extends between the Millsap, TX, VORTAC and the Vulcan,
AL, VORTAC; and between the Colliers, SC, VORTAC and the Charleston,
SC, VORTAC. The airway segment overlying the Glen Rose, TX, VORTAC
between the Millsap, TX, VORTAC and the Cedar Creek, TX, VORTAC is
removed. The unaffected portions of the existing airway remain as
charted.

    V-62: V-62 extends between the Gallup, NM, VORTAC and the Glen
Rose, TX, VORTAC. The airway segment overlying the Glen Rose, TX,
VORTAC between the Abilene, TX, VORTAC and the Glen Rose, TX, VORTAC is
removed. The unaffected portions of the existing airway remain as
charted.
    V-94: V-94 extends between the Blythe, CA, VORTAC and the Holly
Springs, MS, VORTAC. The airway segment overlying the Glen Rose, TX,
VORTAC between the Tuscola, TX, VOR/DME and the Cedar Creek, TX, VORTAC
is removed. The unaffected portions of the existing airway remain as
charted.
    V-163: V-163 extends between the Matamoros, Mexico, VOR/DME and the
Glen Rose, TX, VORTAC. The airway segment overlying the Glen Rose, TX,
VORTAC between the Gooch Springs, TX, VORTAC and the Glen Rose, TX,
VORTAC is removed. Additionally, exclusionary language is added to
reflect the airspace within Mexico is excluded. The unaffected portions
of the existing airway remain as charted.
    V-568: V-568 extends between the Corpus Christi, TX, VORTAC and the
Wichita Falls, TX, VORTAC. The airway segment overlying the Glen Rose,
TX, VORTAC between the Llano, TX, VORTAC and the Millsap, TX, VORTAC is
removed. The unaffected portions of the existing airway remain as
charted. There are no concurrent changes to other portions of the
airway as was noted in the NPRM.
    All radials in the VOR Federal airway descriptions below are
unchanged and stated in True degrees.

Regulatory Notices and Analyses

    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under
Department of Transportation (DOT) Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979); and (3) does not warrant preparation
of a regulatory evaluation as the anticipated impact is so minimal.
Since this is a routine matter that will only affect air traffic
procedures and air navigation, it is certified that this rule, when
promulgated, will not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.

Environmental Review

    The FAA has determined that this action of modifying VOR Federal
airways V-17, V-18, V-62, V-94, V-163, and V-568 due to the planned
decommissioning of the VOR portion of the Glen Rose, TX, VORTAC NAVAID
qualifies for categorical exclusion under the National Environmental
Policy Act and its implementing regulations at 40 CFR part 1500, and in
accordance with FAA Order 1050.1F, Environmental Impacts: Policies and
Procedures, paragraph 5-6.5a, which categorically excludes from further
environmental impact review rulemaking actions that designate or modify
classes of airspace areas, airways, routes, and reporting points (see
14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas;
Air Traffic Service Routes; and Reporting Points). As such, this action
is not expected to result in any potentially significant environmental
impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding
Extraordinary Circumstances, the FAA has reviewed this action for
factors and circumstances in which a normally categorically excluded
action may have a significant environmental impact requiring further
analysis. The FAA has determined that no extraordinary circumstances
exist that warrant preparation of an environmental assessment or
environmental impact study.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for part 71 continues to read as follows:

    Authority:  49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1   [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11D,
Airspace Designations and Reporting Points, dated August 8, 2019 and
effective September 15, 2019, is amended as follows:

Paragraph 6010(a) Domestic VOR Federal Airways.

* * * * *

V-17 [Amended]

    From Brownsville, TX; Harlingen, TX; McAllen, TX; 29 miles, 12
AGL, 34 miles, 25 MSL, 37 miles, 12 AGL; Laredo, TX; Cotulla, TX;
INT Cotulla 046[deg] and San Antonio, TX, 198[deg] radials; San
Antonio; Centex, TX; to Waco, TX. From Millsap, TX; Bowie, TX;
Ardmore, OK; Will Rogers, OK; Mitbee, OK; Garden City, KS; to
Goodland, KS.
* * * * *

V-18 [Amended]

    From Cedar Creek, TX; Quitman, TX; Belcher, LA; Monroe, LA;
Magnolia, MS; Meridian, MS; Crimson, AL; to Vulcan, AL. From
Colliers, SC; to Charleston, SC.
* * * * *

V-62 [Amended]

    From Gallup, NM; INT Gallup 089[deg] and Santa Fe, NM, 268[deg]
radials; Santa Fe; Anton Chico, NM; Texico, NM; Lubbock, TX; to
Abilene, TX.
* * * * *

V-94 [Amended]

    From Blythe, CA; INT Blythe 094[deg]and Gila Bend, AZ, 299[deg]
radials; Gila Bend; Stanfield, AZ; 55 miles, 74 miles, 95 MSL, San
Simon, AZ; Deming, NM; Newman, TX; Salt Flat, TX; Wink, TX; Midland,
TX; to Tuscola, TX. From Cedar Creek, TX; Gregg County, TX; Elm
Grove, LA; Monroe, LA; Greenville, MS; to Holly Springs, MS.
* * * * *

V-163 [Amended]

    From Matamoros, Mexico; Brownsville, TX; 27 miles standard
width, 37 miles 7 miles wide (3 miles E. and 4 miles W. of
centerline); Corpus Christi, TX; Three Rivers, TX; INT Three Rivers
345[deg] and San Antonio, TX, 168[deg] radials; San Antonio; to
Gooch Springs, TX. The airspace within Mexico is excluded.
* * * * *

V-568 [Amended]

    From Corpus Christi, TX; INT Corpus Christi 296[deg] and Three
Rivers, TX, 165[deg] radials; Three Rivers; INT Three Rivers
327[deg] and San Antonio, TX, 183[deg] radials; San Antonio;
Stonewall, TX; to Llano, TX. From Millsap, TX; to Wichita Falls, TX.
* * * * *

Scott M. Rosenbloom,
Acting Manager, Rules and Regulations Group.
[FR Doc. 2020-09226 Filed 4-30-20; 8:45 am]
 BILLING CODE 4910-13-P