GEN General Provisions sourcebook

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Export part as

GEN 1

FSA approval and emergencies

GEN 1.1

Application

  • 01/12/2004

GEN 1.1.1

handbook-rule
  1. (1) This chapter applies to every firm. GEN 1.3 (Emergency) also applies to an unauthorised person to whom a rule in the Handbook applies.
  2. (2) For a UCITS qualifier, this chapter applies only with respect to the communication and approval of financial promotions to which COBS 4 (Communicating with clients, including financial promotion) applies and to the maintenance of facilities to which COLL 9.4 (Facilities in the United Kingdom) applies.

GEN 1.1.2

handbook-guidance
GEN 1.1.1 R (2) reflects section 266 of the Act (Disapplication of rules).
  • 21/06/2001

GEN 1.2

Referring to approval by the FSA

GEN 1.2.1

handbook-guidance
The purpose of GEN 1.2.2 R is to prevent clients being misled about the extent to which the FSA has approved a firm's affairs.

GEN 1.2.2

handbook-rule
  1. (1) Unless required to do so under the regulatory system, a firm must ensure that neither it nor anyone acting on its behalf claims, in a public statement or to a client, expressly or by implication, that its affairs, or any aspect of them, have the approval or endorsement of the FSA or another competent authority.
  2. (2) Paragraph (1) does not apply to statements that explain, in a way that is fair, clear and not misleading, that:
    1. (a) the firm is an authorised person;
    2. (b) the firm has permission to carry on a specific activity;
    3. (c) an authorisation order has been made in relation to an AUT or ICVC;
    4. (d) a recognised scheme has that status;
    5. (e) the firm's approved persons have been approved by the FSA for the purposes of section 59 of the Act (Approval for particular arrangements);
    6. (f) the firm has been given express written approval by the FSA in respect of a specific aspect of the firm's affairs.
  3. (3) Paragraph (1) applies with respect to the carrying on of both regulated activities and unregulated activities.

GEN 1.2.3

handbook-guidance
GEN 1.2.2 R (2)(f) is confined to written approval because of the need for clarity as to the scope of any approval given by the FSA.

GEN 1.3

Emergency

  • 01/12/2004

GEN 1.3.1

handbook-guidance
The FSA recognises that there may be occasions when, because of a particular emergency, a person (generally a firm, but in certain circumstances, for example in relation to price stabilising rules or small e-money issuer rules, an unauthorised person) may be unable to comply with a particular rule in the Handbook. The purpose of GEN 1.3.2 R is to provide appropriate relief from the consequences of contravention of such a rule in those circumstances.

GEN 1.3.2

handbook-rule
  1. (1) If any emergency arises which:
    1. (a) makes it impracticable for a person to comply with a particular rule in the Handbook;
    2. (b) could not have been avoided by the person taking all reasonable steps; and
    3. (c) is outside the control of the person, its associates and agents (and of its and their employees);
  2. the person will not be in contravention of that rule to the extent that, in consequence of the emergency, compliance with that rule is impracticable.
  3. (2) Paragraph (1) applies only for so long as:
    1. (a) the consequences of the emergency continue; and
    2. (b) the person can demonstrate that it is taking all practicable steps to deal with those consequences, to comply with the rule, and to mitigate losses and potential losses to its clients (if any).
  4. (3) The person must notify the FSA as soon as practicable of the emergency and of the steps it is taking and proposes to take to deal with the consequences of the emergency.
  5. (4) A notification under (3) must be given to or addressed and delivered in accordance with SUP 15.7 (Form and method of notification) (whether or not the person is a firm). If the person is not a firm, the notification must be given to or addressed for the attention of: Firm Contact Centre, The Financial Services Authority, 25 The North Colonnade, Canary Wharf, London E14 5HS (tel: 0845 606 9966).

GEN 1.3.3

handbook-guidance
A firm should continue to keep the FSA informed of the steps it is taking under GEN 1.3.2 R (3), in order to comply with its obligations under Principle 11 (Relations with regulators).

GEN 1.3.4

handbook-guidance
In the context of GEN 1.3.2 R, an action is not practicable if it involves a person going to unreasonable lengths.

GEN 1.3.5

handbook-guidance
GEN 1.3.2 R operates on the FSA's rules. It does not affect the FSA's powers to take action against a firm in an emergency, based on contravention of other requirements and standards under the regulatory system. For example, the FSA may exercise its own-initiative power in appropriate cases to vary a firm's Part IV permission based on a failure or potential failure to satisfy the threshold conditions (see SUP 7 (Applying the FSA's requirements to individual firms) and EG 8 (Variation and cancellation of permission on the FSA's own initiative and intervention against incoming firms)).

Export chapter as

GEN 2

Interpreting the Handbook

GEN 2.1

Introduction

Application

GEN 2.1.2

handbook-rule
This chapter applies to every person to whom any provision in the Handbook applies. In relation to a provision other than a rule, the rules in this chapter apply as if they were part of that provision.

The Reader's Guide

GEN 2.1.10

handbook-guidance
The Reader's Guide supplements this chapter. It provides an introduction to the structure and contents of the Handbook and its related materials, explaining how the different modules fit together and how to interpret and use the Handbook.

GEN 2.2

Interpreting the Handbook

  • 01/12/2004

Purposive interpretation

GEN 2.2.1

handbook-rule
Every provision in the Handbook must be interpreted in the light of its purpose.

GEN 2.2.2

handbook-guidance
The purpose of any provision in the Handbook is to be gathered first and foremost from the text of the provision in question and its context among other relevant provisions. The guidance given on the purpose of a provision is intended as an explanation to assist readers of the Handbook. As such, guidance may assist the reader in assessing the purpose of the provision, but it should not be taken as a complete or definitive explanation of a provision's purpose.

Evidential provisions

GEN 2.2.3

handbook-rule

Any rule in the Handbook which has the status letter "E" in the margin or heading:

  1. (1) is to be taken also to provide that contravention of the rule does not give rise to any of the consequences provided for by provisions of the Act other than section 149 (Evidential provisions); and
  2. (2) incorporates the status letter "E" in the margin or heading as part of the rule.

GEN 2.2.4

handbook-guidance
  1. (1) The rules to which section 149 of the Act applies ("evidential provisions") are identified in the Handbook by the status letter "E" in the margin or heading.
  2. (2) Other provisions in the Handbook, although also identified by the status letter "E" in the margin or heading, are actually not rules but provisions in codes and GEN 2.2.3 R does not apply to them. These code provisions are GEN 2.1.4 E, and those provisions in the Code of Practice for Approved Persons (APER 3 and APER 4) and the Code of Market Conduct (MAR 1) with the status letter "E".

GEN 2.2.5

handbook-guidance
Chapter 6 of the Reader's Guide contains an explanation of the significance of the status letters R, E, G, D, UK, EU, P and C, and includes further information on Handbook provisions, including evidential provisions.

Use of defined expressions

GEN 2.2.6

handbook-guidance
Expressions with defined meanings appear in italics in the Handbook.

GEN 2.2.7

handbook-rule

In the Handbook (except IPRU, unless otherwise indicated):

  1. (1) an expression in italics which is defined in the Glossary has the meaning given there; and
  2. (2) an expression in italics which relates to an expression defined in the Glossary must be interpreted accordingly.

GEN 2.2.8

handbook-guidance

Examples of related expressions are:

  1. (1) "advice on investments" and "advise on investments", which should be interpreted by reference to "advising on investments";
  2. (2) "closely linked", which should be interpreted by reference to "close links";
  3. (3) "controls" and "controlled", which should be interpreted by reference to "control"; and
  4. (4) "effect", as for example in "effect a life policy", which should be interpreted by reference to "effecting contracts of insurance".

GEN 2.2.9

handbook-guidance
Unless the context otherwise requires, where italics have not been used, an expression bears its natural meaning (subject to the Interpretation Act 1978; see GEN 2.2.11 R to GEN 2.2.12 G).

GEN 2.2.10

handbook-guidance
The Interim Prudential sourcebooks (IPRU) have individual arrangements for defined terms and each contains rules or guidance on its own arrangements. In respect of those sourcebooks, reliance should not be placed on the definitions which appear in the Glossary unless otherwise indicated.

Application of the Interpretation Act 1978

GEN 2.2.11

handbook-rule
The Interpretation Act 1978 applies to the Handbook.

GEN 2.2.12

handbook-guidance

The application of the Interpretation Act 1978 to the Handbook has the effect, in particular, that:

  1. (1) expressions in the Handbook used in the Act have the meanings which they bear in the Act, unless the contrary intention appears;
  2. (2) where reference is made in the Handbook to an enactment, it is a reference to that enactment as amended, and includes a reference to that provision as extended or applied by or under any other enactment, unless the contrary intention appears; and
  3. (3) unless the contrary intention appears:
    1. (a) words in the Handbook importing the masculine gender include the feminine and words importing the feminine gender include the masculine;
    2. (b) words in the Handbook in the singular include the plural and words in the plural include the singular.

Civil partnership - references to stepchildren etc

GEN 2.2.12A

handbook-rule
Any reference in a provision of the Handbook made before 5 December 2005 to a stepchild, step-parent, stepdaughter, stepson, stepbrother or stepsister is to be interpreted in accordance with section 246 of the Civil Partnership Act 2004.

GEN 2.2.12B

handbook-guidance
GEN 2.2.12A R and sections 246 and 247 of the Civil Partnership Act 2004 amend each reference in the Handbook to a stepchild, step-parent and certain related expressions to take account of civil partnerships. As a result a reference (for example) to a stepchild of a person (A) includes a reference to the child of the civil partner of A where that child is not A's child.

Cross-references in the Handbook

GEN 2.2.13

handbook-rule
A reference in the Handbook to another provision in the Handbook is a reference to that provision as amended from time to time.

References to writing

GEN 2.2.14

handbook-rule
If a provision in the Handbook refers to a communication, notice, agreement or other document "in writing" then, unless the contrary intention appears, it means in legible form and capable of being reproduced on paper, irrespective of the medium used. Expressions related to writing must be interpreted accordingly.

GEN 2.2.15

handbook-guidance

GEN 2.2.14 R means that, for example, electronic media may be used to make communications which are required by a provision of the Handbook to be "in writing", unless a contrary intention appears, or the use of electronic media would contravene some other requirement such as the requirement to treat customers fairly under Principle 6. GEN 2.2.14 R does not, however, affect any other legal requirement which may apply in relation to the form or manner of executing a document or agreement.

GEN 2.2.16

handbook-guidance
"Document" is a defined term in the Glossary, the definition of which includes information recorded in any form, including electronic form.

Activities covered by general rules

GEN 2.2.17

handbook-rule

A general rule (that is a rule made section 138 of the Act (General rule-making power)) is to be interpreted as:

  1. (1) applying to a firm with respect to the carrying on of all regulated activities, except to the extent that a contrary intention appears; and
  2. (2) not applying to a firm with respect to the carrying on of unregulated activities, unless and then only to the extent that a contrary intention appears.

Continuity of authorised partnerships and unincorporated associations

GEN 2.2.18

handbook-rule
  1. (1) If a firm, which is a partnership or unincorporated association, is dissolved, but its authorisation continues to have effect under section 32 of the Act (Partnerships and unincorporated associations) in relation to any partnership or unincorporated association which succeeds to the business of the dissolved firm, the successor partnership or unincorporated association is to be regarded as the same firm for the purposes of the Handbook unless the context otherwise requires.
  2. (2) [deleted]
  3. (3) [deleted]

GEN 2.2.19

handbook-guidance
In principle, it is possible to view a change of partners in a partnership, or a change in the membership of the unincorporated association, as the formation of a new partnership or association. GEN 2.2.18 R reflects section 32 of the Act (Partnerships and unincorporated associations), which provides for the continuing authorisation of partnerships and unincorporated associations following a change in partners or members if certain conditions are satisfied. GEN 2.2.18 R ensures a similar effect to section 32 in relation to the status of the partnership or unincorporated associations as a "firm" or "authorised person" for the purposes of the Handbook.

Designated investment exchanges

GEN 2.2.20

handbook-guidance
In the Glossary, the definition of designated investment exchange lists certain investment exchanges. Further information on designated investment exchanges, including guidance on the addition of an investment exchange to the list, is set out in GEN 2 Annex 1 and the obligation to pay the application fee is set out in FEES 3.2.

GEN 2 Annex 1

Designated investment exchanges

  • 01/12/2004

handbook-guidance

Export chapter as

GEN 3

FSA Fees: General Provisions

GEN 3.1

GEN 3 [deleted: the general provisions in relation to fees are set out in FEES 2 (General Provisions)]

GEN 3.2

GEN 3 [deleted: the general provisions in relation to fees are set out in FEES 2 (General Provisions)]

GEN 3.3

GEN 3 [deleted: the general provisions in relation to fees are set out in FEES 2 (General Provisions)]

Export chapter as

GEN 4

Statutory status disclosure

GEN 4.1

Application and purpose

Who? What?

GEN 4.1.1

handbook-rule

This chapter applies to every firm and with respect to every regulated activity, except that:

  1. (1) for an incoming ECA provider, this chapter does not apply when the firm is acting as such;
  2. (2) for an incoming EEA firm which has permission only for cross-border services and which does not carry on regulated activities in the United Kingdom, this chapter does not apply;
  3. (3) for an incoming firm not falling under (1) or (2), this chapter does not apply to the extent that the firm is subject to equivalent rules imposed by its Home State;
  4. (4) for a UCITS qualifier, this chapter does not apply; and
  5. (5) this chapter does not apply in relation to MiFID business. or the equivalent business of a third country investment firm.

Where?

GEN 4.1.2

handbook-rule
GEN 4.3 (Letter disclosure) applies in relation to activities carried on from an establishment maintained by the firm (or by its appointed representative) in the United Kingdom, subject to GEN 4.3.4 R (Exception: insurers).

GEN 4.1.3

handbook-rule
GEN 4.4 (Business for private customers from non-UK offices) applies in connection with a regulated activity carried on from an establishment of the firm (or its appointed representative) that is not in the United Kingdom.

GEN 4.2

Purpose

  • 01/12/2004

GEN 4.2.1

handbook-guidance
The purpose of this chapter is to amplify Principle 7 (Communications with clients), which requires a firm to pay due regard to the information needs of its clients. This chapter requires the provision of appropriate minimum information about the identity of a firm's regulator in a way which is as consistent as practicable across the whole range of activities regulated by the FSA This assists in the achievement of the regulatory objectives of consumer protection, public awareness and market confidence.

GEN 4.2.2

handbook-guidance

There are other pre-contract information requirements outside this chapter, including:

  1. (1) for financial promotions, in the financial promotion rules;
  2. (2) for designated investment business, in COBS 8 (Client agreements), COBS 5 (Distance Communications), COBS 6 (Information about the firm, its services and remuneration), COBS 13 and 14 (which relate to product information) and CASS (Client assets);
  3. (3) for non-investment insurance contracts, distance communication requirements in ICOBS 3, initial disclosure requirements in ICOBS 4, disclosures relating to client needs and advice in ICOBS 5 and product information requirements in ICOBS 6;
  4. (4) for electronic commerce activities carried on from an establishment in the United Kingdom, in COBS 5.2, ICOBS 3.2 and MCOB 2.8; and
  5. (5) for regulated mortgage contracts and home purchase plans, initial disclosure requirements in MCOB 4, pre-application disclosure requirements in MCOB 5, and disclosure at the offer stage in MCOB 6; and
  6. (6) for equity release transactions, initial disclosure requirements in MCOB 8.4, pre-application disclosure requirements in MCOB 9.4 and disclosure at the offer stage in MCOB 9.5

GEN 4.3

Letter disclosure

  • 01/12/2004

Disclosure in letters to retail clients

GEN 4.3.1

handbook-rule
A firm must take reasonable care to ensure that every letter (or electronic equivalent) which it or its employees send to a retail client, with a view to or in connection with the firm carrying on a regulated activity, includes the disclosure in GEN 4 Annex 1.

GEN 4.3.1A

handbook-guidance
Where a letter covers both activities to which this chapter applies and activities to which this chapter does not apply, the firm should comply with the rules in this chapter in relation to the business to which it applies. An example would be where a letter covers business for which the FSA is the competent authority under the Insurance Mediation Directive and under MiFID.

GEN 4.3.2

handbook-guidance
For a UK domestic firm, the required disclosure in GEN 4 Annex 1 is "Authorised and regulated by the Financial Services Authority".
  • 01/03/2003

GEN 4.3.3

handbook-guidance
  1. (1) GEN 4.3.1 R (Disclosure in letters to retail clients) covers letters delivered by hand, sent by post and sent by fax and also electronic mail, but not text messages, account statements, business cards or compliment slips (used as such).
  2. (2) GEN 4.3.1 R (Disclosure in letters to retail clients) applies in relation to letters sent by any of the firm's employees, which includes its appointed representatives and their employees.
  3. (3) Firms are likely to find it convenient to include the required disclosure in their letterhead.

Exception: insurers

GEN 4.3.4

handbook-rule

GEN 4.3.1 R (Disclosure in letters to retail clients) does not apply in relation to:

  1. (1) general insurance business if:
    1. (a) the State of the risk is an EEA State other than the United Kingdom; or
    2. (b) the State of the risk is outside the EEA and the client is not in the United Kingdom when the contract of insurance is entered into; or
  2. (2) long-term insurance business if:
    1. (a) the client is habitually resident in an EEA State other than the United Kingdom; or
    2. (b) the client is habitually resident outside the EEA and is not present in the United Kingdom when the contract of insurance is entered into.

Exception: authorised professional firms

GEN 4.3.5

handbook-rule
For an authorised professional firm, GEN 4.3.1 R (Disclosure in letters to retail clients) does not apply with respect to its non-mainstream regulated activities.

Exception: use of third party processors in home finance and insurance mediation activities

GEN 4.3.6

handbook-rule
  1. (1) Where a firm has outsourced activities to a third party processor other than advising on life policies, GEN 4.3.1 R does not apply to that third party processor when acting as such, so long as the outsourcing firm ensures that the third party processor and its employees comply with that rule as if it was the firm and they were employees of the firm.
  2. (2) Where an appointed representative has outsourced insurance mediation activities other than advising on life policies or home finance mediation activities to a third party processor, GEN 4.3.1 R does not apply to that third party processor when acting as such, so long as the appointed representative's principal ensures that the third party processor and its employees comply with that rule as if it was the appointed representative and they were the employees of the appointed representative.
  3. (3) Where an appointed representative of a firm is carrying on:
    1. (a) insurance mediation activities other than advising on life policies; or
    2. (b) home finance mediation activities;
  4. which have been outsourced to it by the firm, GEN 4.3.1 R does not apply to the firm when the appointed representative is carrying on the outsourced activities, so long as the firm ensures that the appointed representative and its employees comply with that rule as if it was the firm and they were employees of the firm.

GEN 4.4

Business for retail clients from non-UK offices

GEN 4.4.1

handbook-rule
  1. (1) If, in any communication:
    1. (a) made to:
      1. (i) (in relation to a non-investment insurance contract) a consumer;
      2. (ii) (in relation to a home finance transaction) a customer; or
      3. (iii) (in all other cases) a retail client; and
    2. (b) in connection with a regulated activity carried on from an establishment of the firm (or its appointed representative) that is not in the United Kingdom;
  2. the firm indicates that it is an authorised person, it must also, where relevant, and with equal prominence, give the information in (2) in writing.
  3. (2) The information required is that in some or all respects the regulatory system applying will be different from that of the United Kingdom. The firm may also indicate the protections and complaints or compensation arrangements available under another relevant system of regulation.
  4. (3) A firm need not provide the information required by (1) if it has already provided it in writing to the customer to whom the communication is made.

GEN 4 Annex 1

Statutory status disclosure

  • 01/12/2004

handbook-rule

Export chapter as

GEN 5

The FSA logo and the keyfacts logo

GEN 5.1

Application and purpose

  • 01/12/2004

Application

GEN 5.1.1

handbook-guidance

This chapter contains:

  1. (1) guidance for firms and appointed representatives or tied agents on the circumstances in which the FSA permits firms and their appointed representatives or tied agents to reproduce the FSA logo;
  2. (2) rules on the use by firms of the keyfacts logo.

Purpose

GEN 5.1.2

handbook-guidance
The FSA logo is a registered UK service mark, with number 2150560. The keyfacts logo is a registered Community trade mark, with the number E3866688. Both are the property of the FSA. They are also subject to copyright and may be used or reproduced with permission of the FSA only. If the FSA or keyfacts logos are reproduced or otherwise used by any person without such permission the FSA may seek to enforce its rights over its property through the Courts.

GEN 5.1.3

handbook-guidance
GEN 5 Annex 1 G is a general licence, which sets out the circumstances in which the FSA permits firms and their appointed representatives or tied agents to reproduce the FSA and keyfacts logos. A firm, appointed representative or tied agent need not apply for an individual licence if it uses or reproduces the logos in accordance with the general licence.

GEN 5.1.4

handbook-guidance
The FSA has no policy to allow use of the logos by a firm, appointed representative or tied agent other than as set out in GEN 5 Annex 1 G. If, however, a firm, appointed representative or tied agent wishes to use or reproduce either of the logos other than in accordance with the general licence, it may apply to the FSA for an individual licence, giving full reasons why it considers the FSA should grant the licence.

The keyfacts logo

GEN 5.1.5

handbook-rule
A firm must not use the keyfacts logo other than as and when it is required or expressly permitted to be used by the rules, and in accordance with the general licence in GEN 5 Annex 1 G.

GEN 5.1.6

handbook-rule
A firm must take all reasonable steps to ensure that its representatives do not use the keyfacts logo other than as and when the logo is required to be used by the rules.
  • 01/12/2004

GEN 5.1.7

handbook-rule
A firm must take all reasonable steps to ensure that the keyfacts logo is not reproduced on any document that the firm, or any person acting on its behalf, provides to a customer unless the reproduction is required by the rules.
  • 01/12/2004

GEN 5 Annex 1

Licence for use of the FSA and keyfacts logos by authorised firms and appointed representatives or tied agents

handbook-guidance

Export chapter as

GEN 6

Insurance against financial penalties

GEN 6.1

Insurance against financial penalties

Application

GEN 6.1.1

handbook-rule
This chapter applies to every firm, but only with respect to business that can be regulated under section 138 of the Act (General rule-making power).

GEN 6.1.2

handbook-guidance
For the purposes of GEN 2.2.17 R (Activities covered by general rules), the chapter applies to regulated and unregulated activities carried on in the United Kingdom or overseas.

Purpose

GEN 6.1.3

handbook-guidance
The purpose of this section is to ensure that financial penalties are paid by the person on whom they are imposed.

Interpretation

GEN 6.1.4

handbook-rule
In this chapter 'financial penalty' means a financial penalty that the FSA has imposed, or may impose, under the Act. It does not include a financial penalty imposed by any other body.

Insurance against financial penalties

GEN 6.1.5

handbook-rule
No firm may enter into, arrange, claim on or make a payment under a contract of insurance that is intended to have, or has or would have, the effect of indemnifying any person against all or part of a financial penalty

GEN 6.1.6

handbook-rule
The Society, managing agents and members' agents must not cause or permit any member, in the conduct of his insurance business at Lloyd's, to enter into, arrange, claim on or make a payment under a contract of insurance that is intended to have, or has or would have, the effect of indemnifying any person against all or part of a financial penalty.

GEN 6.1.7

handbook-guidance
GEN 6.1.5 R and GEN 6.1.6 R do not prevent a firm or member from entering into, arranging, claiming on or making any payment under a contract of insurance which indemnifies any person against all or part of the costs of defending FSA enforcement action or any costs they may be ordered to pay to the FSA.

Export chapter as

Transitional Provisions and Schedules

GEN TP 1

Transitional provisions

GEN TP 1.1

Table: (1) Transitional Provisions applying across the Handbook

GEN TP 1.2

Table 2: Transitional Provisions applying across the Handbook

GEN TP 1.3

(3) Transitional Provisions applying to GEN only

GEN Sch 1

Record keeping requirements

  • 01/12/2004

GEN Sch 1.1

handbook-guidance

GEN Sch 2

Notification requirements

  • 01/12/2004

GEN Sch 2.1

handbook-guidance

GEN Sch 2.2

handbook-guidance

GEN Sch 3

Fees and other required payments

  • 01/12/2004

GEN Sch 3.1

handbook-guidance

GEN Sch 4

Powers exercised

  • 01/12/2004

GEN Sch 4.1

handbook-guidance

GEN Sch 5

Rights of action for damages

  • 01/12/2004

GEN Sch 5.1

handbook-guidance
  • 01/12/2004

GEN Sch 5.2

handbook-guidance
  • 01/12/2004

GEN Sch 5.3

handbook-guidance
  • 01/12/2004

GEN Sch 5.4

handbook-guidance
  • 01/12/2004

GEN Sch 6

Rules that can be waived

  • 01/12/2004

GEN Sch 6.1

handbook-guidance

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