Tap any paragraph to write a margin note. Your notes collect in the Desk below the text and file under cases with @. The side-by-side margin rail opens on a larger screen.

§
Marginalia
Code · REGISTER · 2006-12-04 · Bureau of Land Management, Interior · Notices

Notices. Public Land Order

17,948 words·~82 min read·/register/2006/12/04/06-9502

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4310-HC-M DEPARTMENT OF THE INTERIOR Bureau of Land Management [ES-960-1430-ET; MNES 17056] Public Land Order No. 7672; Extension of Public Land Order No. 6630; Minnesota AGENCY: Bureau of Land Management, Interior. ACTION: Public Land Order. SUMMARY: This order extends Public Land Order No. 6630 for an additional 20-year period. This extension is necessary to allow the National Park Service to continue to manage the land as part of the Voyageurs National Park. DATES:
Effective Date: November 18, 2006. FOR FURTHER INFORMATION CONTACT: Ida Doup, BLM Eastern States Office, 7450 Boston Boulevard, Springfield, Virginia 22153, 703-440-1541. SUPPLEMENTARY INFORMATION: Notice of Proposed Withdrawal Extension and Opportunity for Public Meeting; Minnesota was published in the **Federal Register** on September 1, 2006 (71 FR 52143). Order By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (2000), it is ordered as follows: 1.
Public Land Order No. 6630 (51 FR 41627, November 18, 1986), which withdrew 49.26 acres of public land comprised of 61 islands and one waterfront lot in St. Louis County, Minnesota from surface entry and transferred jurisdiction from the Bureau of Land Management to the National Park Service, is hereby extended for an additional 20-year period. 2. This Public Land Order will expire on November 17, 2026, unless, as a result of a review conducted prior to the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714(f) (2000), the Secretary determines that the withdrawal shall be extended.
(Authority: 43 CFR 2310.4) Dated: November 15, 2006. C. Stephen Allred, Assistant Secretary, Land and Minerals Management. [FR Doc. E6-20455 Filed 12-1-06; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR Minerals Management Service Agency Information Collection Activities: Proposed Collection; Comment Request AGENCY: Minerals Management Service (MMS), Interior. ACTION: Notice of extension of an information collection (1010-0142). SUMMARY: To comply with the Paperwork Reduction Act of 1995 (PRA), MMS is inviting comments on a collection of information that we will submit to the Office of Management and Budget
(OMB)for review and approval. The information collection request
(ICR)concerns the paperwork requirements in the regulations under 30 CFR 250, Subpart Q, “Decommissioning Activities.” DATES: Submit written comments by February 2, 2007. ADDRESSES: You may submit comments by any of the following methods listed below. Please use the Information Collection Number 1010-0142 as an identifier in your message. • Public Connect online commenting system, *https://ocsconnect.mms.gov* . Follow the instructions on the Web site for submitting comments. • E-mail MMS at *rules.comments@mms.gov* . Identify with Information Collection Number 1010-0142 in the subject line. • Fax: 703-787-1093. Identify with Information Collection Number 1010-0142. • Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Attention: Rules Process Team (RPT); 381 Elden Street, MS-4024; Herndon, Virginia 20170-4817. Please reference “Information Collection 1010-0142” in your comments. FOR FURTHER INFORMATION CONTACT: Cheryl Blundon, Regulations and Standards Branch at
(703)787-1607. You may also contact Cheryl Blundon to obtain a copy, at no cost, of the regulations that require the subject collection of information. SUPPLEMENTARY INFORMATION: *Title:* 30 CFR Part 250, Subpart Q, Decommissioning Activities. *OMB Control Number:* 1010-00142. *Abstract:* The Outer Continental Shelf
(OCS)Lands Act, as amended (43 U.S.C. 1331 *et seq.* and 43 U.S.C. 1801 *et seq.* ), authorizes the Secretary of the Interior (Secretary) to prescribe rules and regulations to administer leasing of the OCS. Such rules and regulations will apply to all operations conducted under a lease. Operations on the OCS must preserve, protect, and develop oil and natural gas resources in a manner that is consistent with the need to make such resources available to meet the Nation's energy needs as rapidly as possible; to balance orderly energy resource development with protection of human, marine, and coastal environments; to ensure the public a fair and equitable return on the resources of the OCS; and to preserve and maintain free enterprise competition. Section 1332(6) states that “operations in the [O]uter Continental Shelf should be conducted in a safe manner by well trained personnel using technology, precautions, and other techniques sufficient to prevent or minimize the likelihood of blowouts, loss of well control, fires, spillages, physical obstructions to other users of the waters or subsoil and seabed, or other occurrences which may cause damage to the environment or to property or endanger life or health.” MMS uses the information collected under subpart Q primarily for the following reasons: • To determine the necessity for allowing a well to be temporarily abandoned, the lessee/operator must demonstrate that there is a reason for not permanently abandoning the well and the temporary abandonment will not constitute a significant threat to fishing, navigation, or other uses of the seabed. We use the information and documentation to verify that the lessee is diligently pursuing the final disposition of the well, and the lessee has performed the temporary plugging of the wellbore. • The information submitted in “initial” decommissioning plans in the Alaska and Pacific OCS Regions will permit MMS to become involved on the ground floor planning of the world-class platform removals anticipated to occur in these OCS regions. • Site clearance and platform or pipeline removal information ensures that all objects (wellheads, platforms, etc.) installed on the OCS are properly removed using procedures that will protect marine life and the environment during removal operations, and the site cleared so as not to conflict with or harm other uses of the OCS. • Decommissioning a pipeline in place is needed to ensure that it will not constitute a hazard to navigation and commercial fishing operations, unduly interfere with other uses of the OCS, or have adverse environmental effects. • The information is necessary to verify that decommissioning activities comply with approved applications and procedures and are satisfactorily completed. We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2) and under regulations at 30 CFR 250.197, “Data and information to be made available to the public.” No items of a sensitive nature are collected. Responses are mandatory. *Frequency:* On occasion, annually and varies by requirement. *Estimated Number and Description of Respondents:* Approximately 236 Federal OCS oil, gas, and sulphur lessees and holders of pipeline rights-of-way. *Estimated Reporting and Recordkeeping “Hour” Burden:* The currently approved annual reporting burden for this collection is 8,579 hours. The following chart details the individual components and respective hour burden estimates and fees of this ICR. In calculating the burdens, we assumed that respondents perform certain requirements in the normal course of their activities. We consider these to be usual and customary and took that into account in estimating the burden. Citation 30 CFR 250 Subpart Q Reporting requirement Hour burden Fees 1703; 1704 Request approval for decommissioning Burden included below. 1704(g); 1712; 1716; 1717; 1721(a), (d), (f), (g); 1722(a), (b), (d); 1723(b); 1743(a) Submit form MMS-124 to plug wells; provide subsequent report; request alternate depth departure; request procedure to protect obstructions above seafloor; report within 30 days, results of trawling; certify area cleared of obstructions; remove casing stub or mud line suspension equipment and subsea protective covering; or other departures Burden included under 1010-00141. 1713 Notify MMS 48 hours before beginning operations to permanently plug a well .25 1721(e); 1722(e), (h)(1); 1741(c) Identify and report subsea wellheads, casing stubs, or other obstructions; mark wells protected by a dome; mark location to be cleared as navigation hazard U.S. Coast Guard requirements. 1722(c), (g)(2) Notify MMS within 5 days if trawl does not pass over protective device or causes damages to it; or if inspection reveals casing stub or mud line suspension is no longer protected .25 1722(f), (g)(3) Submit annual report on plans for re-entry to complete or permanently abandon the well and inspection report 2 1722(h) Request waiver of trawling test 2 1726; 1704(a) Submit initial decommissioning application in the Pacific OCS Region and Alaska OCS Region 20 1725; 1727; 1728; 1730; 1704(b) Submit final application and appropriate data to remove platform or other subsea facility structures (including alternate depth departure) or approval to maintain, to conduct other operations, or to convert to artificial reef 10 $4,100 fee per submission. 1725(e) Notify MMS 48 hours before beginning removal of platform and other facilities .25 1729; 1704(c) Submit post platform or other facility removal report 8 1740 Request approval to use alternative methods of well site, platform, or other facility clearance 8 1743(b) Verify permanently plugged well, platform, or other facility removal site cleared of obstructions and submit certification letter 12 1751; 1752; 1704(d) Submit application to decommission pipeline in place or remove pipeline (L/T or ROW) 8 $1,000 L/T fee per submission. $1,900 ROW fee per submission. 1753 Submit post pipeline decommissioning report 2 1700 thru 1754 General departure and alternative compliance requests not specifically covered elsewhere in subpart Q regulations 2 *Estimated Reporting and Recordkeeping “Non-Hour Cost” Burden:* The currently approved “non-hour cost” burdens for this collection is a total of $1,032,006. These cost burdens are for filing fees associated with submitting requests for approval to remove a platform or other facility or decommission a pipeline. We have not identified any other non-hour cost burdens associated with this collection of information. See the above table for the specific non-hour cost burdens associated with this ICR. *Public Disclosure Statement:* The PRA (44 U.S.C. 3501, *et seq.* ) provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond. *Comments:* Before submitting an ICR to OMB, PRA section 3506(c)(2)(A) requires each agency “* * * to provide notice * * * and otherwise consult with members of the public and affected agencies concerning each proposed collection of information * * *”. Agencies must specifically solicit comments to:
(a)Evaluate whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful;
(b)evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(c)enhance the quality, usefulness, and clarity of the information to be collected; and
(d)minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology. Agencies must also estimate the “non-hour cost” burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information, monitoring, and record storage facilities. You should not include estimates for equipment or services purchased:
(i)Before October 1, 1995;
(ii)to comply with requirements not associated with the information collection;
(iii)for reasons other than to provide information or keep records for the Government; or
(iv)as part of customary and usual business or private practices. We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB. *Public Comment Procedures:* The MMS's practice is to make comments, including names and addresses of respondents, available for public review. If you wish your name and/or address to be withheld, you must state this prominently at the beginning of your comment. The MMS will honor this request to the extent allowable by law; however, anonymous comments will not be considered. There may be circumstances in which we would withhold from the record a respondent's identity, as allowable by the law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. In addition, you must present a rationale for withholding this information. This rationale must demonstrate that disclosure “would constitute an unwarranted invasion of privacy.” Unsupported assertions will not meet this burden. In the absence of exceptional, documentable circumstances, this information will be released. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public inspection in their entirety. *MMS Information Collection Clearance Officer:* Arlene Bajusz
(202)208-7744. Dated: November 27, 2006. E.P. Danenberger, Chief, Office of Offshore Regulatory Programs. [FR Doc. E6-20425 Filed 12-1-06; 8:45 am] BILLING CODE 4310-MR-P DEPARTMENT OF THE INTERIOR National Park Service Establishment of a New Fee Area at Voyageurs National Park AGENCY: National Park Service, Interior. SUMMARY: This notice is to comply with section 804 of the Federal Lands Recreation Enhancement Act of 2004 (Pub. L. No. 108-447). The Act requires agencies to give the public advance notice (6 months) of the establishment of a new recreation fee area. Voyageurs National Park in northern Minnesota plans to collect an expanded amenity recreation fee of $35 per night for two group camp sites beginning the summer of 2007. Revenue will be used to support deferred maintenance in the campsites, to cover the cost of collections at the park, and to pay for contractor-provided reservation services. DATES: Collection of fees will be effective 6 months from the posting of this notice. ADDRESSES: Information requests may be submitted to Rick DeLappe; Reservation Service Program Manager by any of the following methods: *E-mail: rick_delappe@nps.gov.* *Fax:* 202-371-2401, Attention: Rick DeLappe *Mail:* Rick DeLappe, Reservation Service Program Manager, National Park Service, 1849 C Street, NW., ORG CODE 2608, Washington, DC 20240 FOR FURTHER INFORMATION CONTACT: Kathleen Przybylski, Chief of Visitor Education and Planning, Voyageurs National Park, 3131 Highway 53, International Falls, MN 56649.
(218)283-9821 ext 6145. SUPPLEMENTARY INFORMATION: Voyageurs National Park in northern Minnesota plans to implement expanded amenity recreation fees for two group campsites at Rainy Lake and Kabetogama Lake. These group sites are accessible only by boat and were designed to accommodate up to 30 people. Visitors will be able to reserve these sites in advance through the National Park Reservation Service
(NPRS)or in person at the park on a space available basis for same day arrivals. Advanced reservation services will allow groups to guarantee that sites will be available and will provide them the ability to plan ahead. Advance reservations will also help the park manage use in a way that minimizes conflicts between visitors and increases the likelihood that these sites will be used by the large groups for which they were designed. Under the current first-come-first-served arrangement, small groups often occupy these sites displacing the larger groups who have few alternatives. The $35 fee was determined through a comparability study of similar sites in the area at both Federal and state recreation areas and will only be charged for these two group sites. The park will not charge an additional reservation fee on top of the $35 for visitors making advanced reservations through the NPRS. Individual campsites in Voyageurs National Park will remain free of charge on a first-come-first-served basis. In accordance with NPS public involvement guidelines, the park engaged numerous individuals, organizations, and local, state, and Federal government representatives while planning for the implementation of this fee. Dated: October 30, 2006. Mary A. Bomar, Director National Park Service. [FR Doc. E6-20416 Filed 12-1-06; 8:45 am] BILLING CODE 4310-H5-P DEPARTMENT OF JUSTICE Foreign Claims Settlement Commission Privacy Act of 1974; Systems of Records AGENCY: Foreign Claims Settlement Commission; Justice. ACTION: Revisions of Notice of Privacy Act Systems of Records; correction. SUMMARY: Pursuant to the provisions of the Privacy Act of 1974, 5 U.S.C. 552a, the Foreign Claims Settlement Commission gave notice by publication in the **Federal Register** on November 14, 2006 (71 FR 66347) of a proposal to modify all of its systems of records to include a new routine use. This Notice also included an updated Table of Contents of the Commission's Privacy Act Systems of Records, in order to reflect the deletion of four of its records systems due to the release of the records in those systems to the National Archives for permanent retention. This Table of Contents erroneously included two Privacy Act Systems of Records which had previously been deleted. Accordingly, the Foreign Claims Settlement Commission hereby deletes from the revised Table of Contents of its Privacy Act Systems of Records published on November 14, 2006, the following two items: “Justice/FCSC-6, Correspondence (General),” and “Justice/FCSC-7, Correspondence (Inquiries Concerning Claims in Foreign Countries).” In all other respects, this revised Table of Contents continues in effect as replacement for the Table of Contents included as part of the Privacy Act Systems of Records Notice published by the Foreign Claims Settlement Commission in the **Federal Register** on June 10, 1999 (64 FR 31296), the information in which remains accurate and up-to-date. Mauricio J. Tamargo, Chairman. [FR Doc. E6-20454 Filed 12-1-06; 8:45 am] BILLING CODE 4410-BA-P DEPARTMENT OF LABOR Employee Benefits Security Administration Prohibited Transaction Exemption for Provision of Investment Advice to Individual Retirement and Similar Plans AGENCY: Employee Benefits Security Administration, Labor. ACTION: Request for information. SUMMARY: Section 601 of the Pension Protection Act of 2006 (the PPA) (Pub. L. 109-280) amended section 408 of the Employee Retirement Security Act of 1974 (ERISA) and section 4975 of the Internal Revenue Code of 1986 (the Code) to add an exemption from certain prohibited transactions restrictions of ERISA and from certain taxes imposed by the Code for the provision of “investment advice” to participants and beneficiaries of covered employee benefit plans, and certain related transactions, if the investment advice is provided under an “eligible investment advice arrangement.” The exemption conditions relief upon satisfaction of a number of requirements more fully described in the statutory provisions. In particular, to be covered, the investment advice must be provided under an eligible investment advice arrangement that uses a computer model, which meets the requirements of the exemption. The purpose of this document is to solicit information from the public concerning the feasibility of the application of computer model investment advice programs for Individual Retirement Accounts and similar types of plans (hereinafter, IRAs). 1 The PPA directs the Secretary of Labor, in consultation with the Secretary of the Treasury, to determine, based on the information received from the solicitation, whether there is any computer model investment advice program which may be utilized to provide investment advice to IRA beneficiaries. 2 1 See PPA section 601(b)(3)(A)(i). These plans are:
(A)An individual retirement account described in section 408(a) of the Code;
(B)an individual retirement annuity described in section 408(b) of the Code;
(C)an Archer MSA described in section 220(d)of the Code;
(D)a health savings account described in section 223(d) of the Code;
(E)a Coverdell education savings account described in Code section 530; or
(F)a trust, plan, account, or annuity which, at any time, has been determined by the Secretary of Treasury to be described in any preceding subparagraph of this paragraph [ *i.e.,*
(A)through
(E)above]. 2 Under Presidential Reorganization Plan No. 4 of 1978, effective December 31, 1978 [5 U.S.C. App. at 214 2000 ed.)], the authority of the Secretary of the Treasury to issue interpretations regarding section 4975 of the Code has been transferred, with certain exceptions not here relevant, to the Secretary of Labor and the Secretary of the Treasury is bound by the interpretations of the Secretary of Labor pursuant to such authority. DATES: Written or electronic responses should be submitted to the Department of Labor on or before January 30, 2007. *Responses:* To facilitate the receipt and processing of responses, EBSA encourages interested persons to submit their responses electronically by e-mail to *e-OED@dol.gov* , or by using the Federal eRulemaking portal at *www.regulations.gov* (follow instructions for submission of comments). Persons submitting responses electronically are encouraged not to submit paper copies. Persons interested in submitting written responses on paper should send or deliver their responses (preferably, at least three copies) to the Office of Exemption Determinations, Employee Benefits Security Administration, Room N-5700, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attention: IRA Investment Advice RFI. All written responses will be available to the public, without charge, online at *www.regulations.gov* and *www.dol.gov/ebsa* , and at the Public Disclosure Room, N-1513, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. FOR FURTHER INFORMATION CONTACT: Christopher Motta or Brian Buyniski, Office of Exemption Determinations, Employee Benefits Security Administration, Room N-5700, U.S. Department of Labor, Washington, DC 20210, telephone
(202)693-8540. This is not a toll-free number. SUPPLEMENTARY INFORMATION: A. Background As a general matter, the provision of investment advice by a plan fiduciary as defined under section 3(21)(A) of ERISA to the plan would give rise to prohibited self-dealing under section 406(b)(1) of ERISA and section 4975(c)(1)(E) of the Internal Revenue Code of 1986 (the Code) if the fiduciary has an interest in the outcome of the advice which may affect its best judgment as a fiduciary (e.g., the fiduciary or its affiliate receives additional fees from investment options with respect to which advice is given). 3 Section 601(a) of the Pension Protection Act of 2006
(PPA)amended ERISA by adding new sections 408(b)(14) and 408(g). Section 408(b)(14) of ERISA provides conditional exemptive relief from the prohibitions of ERISA section 406 for certain transactions in connection with the provision of investment advice (as described by ERISA section 3(21)(A)(ii)) to a participant or beneficiary of an individual account plan, if the requirements of new section 408(g) are met. 4 3 See ERISA section 406(b)(1) and Code section 4975(c)(1)(E). 4 ERISA Section 3(21)(A)(ii) defines a “fiduciary” as including a person who renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of the plan. Section 601(b) of the PPA similarly amended the Code by adding new Code sections 4975(d)(17) and 4975(f)(8). Section 4975(d)(17) of the Code provides conditional exemptive relief from the prohibitions described in section 4975(c) for certain transactions in connection with the provision of investment advice (as described in Code section 4975(e)(3)(B)) 5 to a participant or beneficiary of a plan, if the requirements of section 4975(f)(8) are met. 5 Code Section 4975(e)(3)(B) defines a “fiduciary” as including any person who renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of the plan. Under section 4975(f)(8) of the Code, the investment advice must be provided by a fiduciary adviser pursuant to an “eligible investment advice arrangement.” The term “eligible investment advice arrangement” is defined in section 4975(f)(8)(B) to mean an arrangement which either:
(1)Provides that any fees (including any commission or other compensation) received by the fiduciary adviser for investment advice or with respect to the sale, holding, or acquisition of any security or other property for purposes of investment of plan assets do not vary depending on the basis or any investment option selected, or
(2)uses a computer model under an investment advice program meeting the requirements of section 4975(f)(8)(C) in connection with the provision of investment advice by a fiduciary adviser to a participant and beneficiary, and with respect to which the requirements of subparagraphs (D), (E), (F), (G),
(H)and
(I)of section (f)(8) are met. Under section 4975(f)(8)(C) of the Code, the computer model utilized by an investment advice program must:
(1)Apply generally accepted investment theories that take into account the historic returns of different asset classes over defined periods of time;
(2)utilize relevant information about the participant, which may include age, life expectancy, retirement age, risk tolerance, other assets or sources of income, and preferences as to certain types of investments;
(3)utilize prescribed objective criteria to provide asset allocation portfolios comprised of investment options available under the plan;
(4)operate in a manner that is not biased in favor of investments offered by the fiduciary adviser or a person with a material affiliation or contractual relationship with the fiduciary adviser; and
(5)take into account all investment options under the plan in specifying how a participant's account balance should be invested and not be inappropriately weighted with respect to any investment option. The PPA restricts the use, under the exemption, of a computer model investment advice program to provide investment advice to an IRA (or similar plan (hereinafter, an IRA)) beneficiary. 6 In this regard, section 601(b)(3)(C)(i)(I) of the PPA provides that a computer model investment advice program will not apply to an IRA unless and until the Secretary of Labor determines under section 601(b)(3)(B)or
(D)of the PPA that there is a computer model investment advice program described in section 601(b)(3)(B) of the PPA. Section 601(b)(3)(A) requires that the Secretary of Labor, in consultation with the Secretary of the Treasury, solicit information as to the feasibility of the application of computer model investment programs for IRAs. 7 6 This restriction does not affect the application of the exemption to an eligible investment advice arrangement that satisfies Code section 4975(f)(8)(B)(i)(I) (describing arrangement under which fees do not vary). Further, there is no comparable limitation with respect to sections 408(b)(14) and 408(g) of ERISA. In this regard, the Department notes that IRAs are generally not subject to the provisions of Title I of ERISA. See 29 CFR Sec. 2510.3-2(d). 7 In addition to soliciting information from the public in general, section 601(b)(3)(A)(i) of the PPA directs the Secretary of Labor to solicit information regarding the feasibility of the application of computer model investment advice programs from:
(1)the “top 50 trustees” of IRAs and similar plans, determined on the basis of assets held by such trustees; and
(2)other persons offering computer model investment advice programs based on non-proprietary products. Section 601(b)(3)(B) requires that the Secretary of Labor, in consultation with the Secretary of the Treasury, determine, based upon the information received from the solicitation, whether there is any computer model investment advice program which may be utilized to provide investment advice for IRA beneficiaries. Among other things, such computer model investment advice program for IRA beneficiaries must:
(1)Utilize relevant information about the beneficiary, which may include age, life expectancy, retirement age, risk tolerance, other assets or sources of income, and preferences as to certain types of investments;
(2)take into account the full range of investments, including equities and bonds, in determining the options for the investment portfolios of the beneficiary; and
(3)allow the beneficiary, in directing the investment, sufficient flexibility in obtaining advice to evaluate and select investment options. 8 8 See PPA section 601(b)(3)(B)(i)-(iii). Upon completion of its determination, the Secretary of Labor shall report the results of such determination to the Committee on Ways and Means and the Committee on Education and the Workforce of the House of Representatives and the Committee on Finance and the Committee on Health, Education, Labor, and Pensions of the Senate no later than December 31, 2007. B. Issues Under Consideration Feasibility of Computer Model Investment Advice The Department is interested in comments regarding the feasibility of applying computer model investment advice programs for IRAs. The information received from the solicitation will assist the Department in making its required determination of feasibility under section 601(b)(3)(B) of the PPA. 9 A list of issues with respect to which comments are requested is included below. Responses on other issues pertinent to the Department's determination are also invited. 9 The Department notes that any determination made by the Department under section 601(b)(3)(B) of the PPA regarding the feasibility of the application of computer model investment advice programs for IRAs will not have any affect on existing individual or class exemptions that may provide relief for the provision of investment advice to IRA beneficiaries. In this regard, see Prohibited Transaction Class Exemption 84-24 (49 FR 13208 (Apr. 3, 1984), as corrected at 49 FR 24819 (June 15, 1984), and amended at 71 FR 5887 (Feb. 3, 2006)). Request for Information 1. Are there computer model investment advice programs for the current year and preceding year that are, or may be, utilized to provide investment advice to beneficiaries of plans described in section 4975(e)(1)(B)-(F) (and so much of subparagraph
(G)as relates to such subparagraphs) (hereinafter “IRA”) of the Code which:
(a)Apply generally accepted investment theories that take into account the historic returns of different asset classes over defined periods of time;
(b)Utilize relevant information about the beneficiary, which may include age, life expectancy, retirement age, risk tolerance, other assets or sources of income, and preferences as to certain types of investments;
(c)Operate in a manner that is not biased in favor of investments offered by the fiduciary adviser or a person with a material affiliation or contractual relationship with the fiduciary adviser;
(d)Take into account the full range of investments, including equities and bonds, in determining the options for the investment portfolios of the beneficiary; and
(e)Allow the beneficiary, in directing the investment, sufficient flexibility in obtaining advice to evaluate and select investment options. 2. If currently available computer models do not satisfy all of the criteria described above, which criteria are presently not considered by such computer models? Would it be possible to develop a model that satisfies all of the specified criteria? Which criteria would pose difficulties to developers and why? 3. If there are any currently available computer model investment advice programs meeting the criteria described in Question 1 that may be utilized for providing investment advice to IRA beneficiaries, please provide a complete description of such programs and the extent to which they are available to IRA beneficiaries. 4. With respect to any programs described in response to Question 3, do any of such programs permit the IRA beneficiary to invest IRA assets in virtually any investment? If not, what are the difficulties, if any, in creating such a model? 5. If computer model investment advice programs are not currently available to IRA beneficiaries that permit the investment of IRA assets in virtually any investment, are there computer model investment advice programs currently available to IRA beneficiaries that, by design or operation, limit the investments modeled by the computer program to a subset of the investment universe? If so, who is responsible for the development of such investment limitations and how are the limitations developed? Is there any flexibility on the part of an IRA beneficiary to modify the computer model to take into account his or her preferences? Are such computer model investment advice programs available to the beneficiaries of IRAs that are not maintained by the persons offering such programs? 6. If you offer a computer model investment advice program based on nonproprietary investment products, do you make the program available to investment accounts maintained by you on behalf of IRA beneficiaries? 7. What are the investment options considered by computer investment advice programs? What information on such options is needed? How is the information obtained and made part of the programs? Is the information publicly available or available to IRA beneficiaries? 8. How should the Department or a third party evaluate a computer model investment advice program to determine whether a program satisfies the criteria described in Question 1 or any other similar criteria established to evaluate such programs? 9. How do computer model investment advice programs present advice to IRA beneficiaries? How do such programs allow beneficiaries to refine, amend or override provided advice? Signed at Washington, DC, this 28th day of November 2006. Bradford P. Campbell, Acting Assistant Secretary, Employee Benefits Security Administration, Department of Labor. [FR Doc. E6-20401 Filed 12-1-06; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF LABOR Employee Benefits Security Administration RIN 1210-AB13 Prohibited Transaction Exemption for Provision of Investment Advice to Participants in Individual Account Plans AGENCY: Employee Benefits Security Administration, Department of Labor. ACTION: Request for information. SUMMARY: Section 601 of the Pension Protection Act of 2006 (the PPA) (Pub. L. 109-280) amended section 408 of the Employee Retirement Income Security Act of 1974 (ERISA) and section 4975 of the Internal Revenue Code (the Code) to add a prohibited transaction exemption for the provision of investment advice to participants and beneficiaries of individual account plans that permit the direction of assets in their accounts, and for certain related transactions, if the investment advice is provided under an “eligible investment advice arrangement,” as defined in the statute. The purpose of this notice is to request information from the public relating to the requirements in the new provisions that a computer model which serves as the basis for an eligible investment advice arrangement be certified as meeting specific criteria, and that information regarding certain fees and compensation be provided to participants and beneficiaries. DATES: Written or electronic responses should be submitted to the Department of Labor on or before January 30, 2007. *Responses:* To facilitate the receipt and processing of responses, EBSA encourages interested persons to submit their responses electronically by e-mail to *e-ORI@dol.gov,* or by using the Federal eRulemaking portal at *www.regulations.gov* (follow instructions for submission of comments). Persons submitting responses electronically are encouraged not to submit paper copies. Persons interested in submitting written responses on paper should send or deliver their responses (preferably, at least three copies) to the Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attention: 401(k) Plan Investment Advice RFI. All written responses will be available to the public, without charge, online at *www.regulations.gov* and *www.dol.gov/ebsa,* and at the Public Disclosure Room, N-1513, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. FOR FURTHER INFORMATION CONTACT: Katherine D. Lewis or Ruel B. Pile, Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, Washington, DC 20210, telephone
(202)693-8510. This is not a toll-free number. SUPPLEMENTARY INFORMATION: A. Background In General The prohibited transaction provisions in section 406 of the Employee Retirement Income Security Act of 1974 (ERISA) prohibit various types of transactions between a plan and persons who are parties in interest (as defined in ERISA section 3(14)) with respect to the plan, and also prohibit, among other things, a plan fiduciary (as defined in ERISA section 3(21)(A)) from dealing with assets of the plan in his own interest or for his own account, or receiving any consideration for his own personal account from any party dealing with the plan in connection with a transaction involving the assets of the plan. 1 1 The Internal Revenue Code
(Code)contains similar prohibited transaction provisions in section 4975(c). Section 601(a) of the Pension Protection Act of 2006
(PPA)(P.L. 109-280) amended ERISA by adding new sections 408(b)(14) and 408(g). Section 408(b)(14) of ERISA provides conditional exemptive relief from ERISA section 406 for certain transactions in connection with the provision of investment advice (as described in ERISA section 3(21)(A)(ii)) if the requirements of new section 408(g) of ERISA are met. Under section 408(g), subsection (b)(14) applies if the investment advice provided by a “fiduciary adviser” is provided under an “eligible investment advice arrangement.” 2 Persons who may act as fiduciary advisers, as defined in section 408(g)(11)(A), include, but are not limited to, investment advisers registered under the Investment Advisers Act of 1940, certain banks and similar financial institutions, insurance companies qualified to do business under the laws of a State, and brokers or dealers registered under the Securities Exchange Act of 1934. 2 Section 601(b) of the PPA similarly amended section 4975 of the Code by adding new section 4975(d)(17) and (f)(8), to provide conditional exemptive relief from the prohibitions described in Code section 4975(c) for certain transactions in connection with the provision of investment advice (as described in Code section 4975(e)(3)(B)). Under Presidential Reorganization Plan No. 4 of 1978, effective December 31, 1978 [5 U.S.C. App. at 214 (2000 ed.)], the authority of the Secretary of the Treasury to issue interpretations regarding section 4975 of the Code has been transferred, with certain exceptions not here relevant, to the Secretary of Labor and the Secretary of the Treasury is bound by the interpretations of the Secretary of Labor pursuant to such authority. The references in this document to specific provisions of ERISA sections 408(b)(14) and
(g)should be taken as referring also to the corresponding provisions in Code sections 4975(d)(17) and (f)(8). The term “eligible investment advice arrangement” is defined in ERISA section 408(g)(2) to mean an arrangement which either
(i)provides that any fees (including any commission or other compensation) received by the fiduciary adviser for investment advice or with respect to the sale, holding, or acquisition of any security or other property for purposes of investment of plan assets do not vary depending on the basis of any investment option selected, or
(ii)uses a computer model under an investment advice program meeting the requirements of section 408(g)(3) in connection with the provision of investment advice by a fiduciary adviser to a participant or beneficiary, and with respect to which the requirements in section 408(g)(4) through (9)—which includes a requirement pertaining to the disclosure of certain fees—are satisfied. Computer Model In order for an investment advice program using a computer model to meet the requirements of section 408(g)(3), the program must satisfy subparagraphs (B),
(C)and
(D)thereof. Section 408(g)(3)(B) requires, in particular, that the investment advice provided under the investment advice program must be provided pursuant to a computer model that:
(i)Applies generally accepted investment theories that take into account the historic returns of different asset classes over defined periods of time,
(ii)utilizes relevant information about the participant, which may include age, life expectancy, retirement age, risk tolerance, other assets or sources of income, and preferences as to certain types of investments,
(iii)utilizes prescribed objective criteria to provide asset allocation portfolios comprised of investment options available under the plan,
(iv)operates in a manner that is not biased in favor of investments offered by the fiduciary adviser or a person with a material affiliation or contractual relationship with the fiduciary adviser, and
(v)takes into account all investment options under the plan in specifying how a participant's account balance should be invested and is not inappropriately weighted with respect to any investment option. Under section 408(g)(3)(C), an “eligible investment expert” must certify, prior to the utilization of the computer model and in accordance with rules prescribed by the Secretary of Labor (Secretary), that the computer model meets the requirements described in section 408(b)(3)(B). Additionally, if, as determined under regulations prescribed by the Secretary, there are material modifications to the computer model, a certification must be obtained with respect to the computer model as modified. In relevant part, section 408(g)(3)(C) defines “eligible investment expert” to mean any person which meets such requirements as the Secretary may provide, and does not bear any material affiliation or contractual relationship with certain persons. Disclosure of Fee-Related Information Regardless of whether an arrangement provides for non-varying fees (section 408(g)(2)(A)(i)) or uses a computer model under an investment advice program (section 408(g)(2)(A)(ii)), the arrangement also must satisfy section 408(g)(4) through
(9)in order to qualify as an “eligible investment advice arrangement.” In particular, section 408(g)(6) requires that a fiduciary adviser provide to participants and beneficiaries written notification of “all fees or other compensation relating to the advice that the fiduciary adviser or any affiliate thereof is to receive (including compensation provided by any third party) in connection with the provision of the advice or in connection with the sale, acquisition, or holding of the security or other property.” ERISA section 408(g)(6)(A)(iii). Section 408(g)(8)(A) requires that this notification be written in a clear and conspicuous manner and in a manner calculated to be understood by the average plan participant and be sufficiently accurate and comprehensive to reasonably apprise participants and beneficiaries of the information required to be provided in the notification. For the disclosure of fees and compensation described in section 408(g)(6)(A)(iii), section 408(g)(8)(B) directs the Secretary to issue a model form which meets the section 408(g)(8)(A) standards. B. Issues Under Consideration The ERISA section 408(g)(3)(C) computer model certification requirements provide for regulatory guidance in three areas. First, section 408(g)(3)(C)(i) requires that an “eligible investment expert” must certify, in accordance with rules prescribed by the Secretary, that a computer model meets the criteria set forth in section 408(g)(3)(B). Second, under section 408(g)(3)(C)(ii), the Secretary may prescribe regulations which provide guidance regarding “material modifications” to a computer model that also require certification. Third, under section 408(g)(3)(C)(iii), the Secretary may establish requirements that a person must satisfy in order to qualify as an “eligible investment expert.” The Department is interested in comments that would assist in the development of regulatory guidance and in the assessment of economic costs and benefits in these three areas. Additionally, ERISA section 408(g)(8)(B) directs the Secretary to issue a model form for the disclosure of fees and other compensation required by section 408(g)(6)(A)(iii) that meets the standards for presentation of information prescribed in section 408(g)(8)(A). The Department is interested in comments that would assist in the development of a model form for this purpose and in the assessment of the economic costs and benefits of a model form for this purpose. Commenters may provide information with respect to either or both sets of issues. A list of some of the issues with respect to which comments are requested is included below. Other information pertinent to the Department's consideration of the issues described above is also invited. Request for Information Computer Model Certification 1. What procedures and information would be necessary and adequate to determine whether a computer model used in connection with an investment advice program satisfies the criteria described in ERISA section 408(g)(3)(B)? For example, would it be necessary to examine underlying computer programs/algorithms, computer software/hardware, or input data including investment-specific information; would it be possible to make a determination based on the results of applying the investment advice program to a sample set of the input data? (Commenters are requested to explain by reference to each of the five computer model characteristics described in section 408(g)(3)(B), summarized above.) 2. What types (e.g., technological, financial, other) and levels (e.g., educational, professional experience, professional certification) of expertise would be required to determine whether a computer model used in connection with an investment advice program satisfies the criteria described in ERISA section 408(g)(3)(B)? (Commenters are requested to explain by reference to each of the five computer model characteristics described in section 408(g)(3)(B), summarized above.) 3. With respect to currently-available computer models or programs for providing investment advice to plan participants or beneficiaries in the form of asset allocation portfolios comprised of plan investment options: 3 3 Commenters are reminded that, as described above, materials submitted in response to this request will be publicly available. a. What is the process for designing, developing and implementing the computer model/program? What parties are involved, and what are their roles? What hardware and software technologies are used to construct computer model investment advice programs? What direct economic costs are associated with the process for designing, developing and implementing the computer model/program? b. What types of modifications are made to the computer model/program after use has begun? Why and how often are the modifications made (e.g., changes in methodology, technology, economy, marketplace, or plan), and how do the modifications affect the investment advice provided? What parties are involved in the modification process, and what are their roles? What direct economic costs may be associated with the modifications? c. What economic costs and benefits are associated with the use of the computer model/program for providing investment advice, including changes in investment performance and in retirement wealth due to the provision of such advice? What are the indirect costs and benefits, such as impact on markets for financial services, including investment advice services, and impact on financial markets, including demand for and pricing of securities? 4. Would the responses to 3.a., 3.b., or 3.c. differ in the case of a computer model/investment advice program intended to satisfy the requirements of ERISA section 408(g)(3)(B)? 5. With respect to the Department's development of regulatory guidance, what special considerations, if any, should be made for small businesses or other small entities? Are there unique costs and benefits for small businesses or other small entities? Model Form for Disclosure of Fees and Other Compensation 1. In general, what types of information relating to fees received by fiduciary advisers and their affiliates would be helpful to participants and beneficiaries in making their investment decisions? 2. What types of fees and compensation (including those provided by third parties) would be encompassed by ERISA section 408(g)(6)(A)(iii)? In relevant part, this provision refers to “all fees or other compensation relating to the advice that the fiduciary adviser or any affiliate thereof is to receive (including compensation provided by any third party) in connection with the provision of the advice or in connection with the sale, acquisition, or holding of the security or other property.” 3. What challenges might be encountered in assembling and/or presenting the information on fees and compensation described in section 408(g)(6)(A)(iii) in a manner that is clear and understandable by the average plan participant? Are there any suggestions as to how these challenges can be addressed by the Department? 4. Is there a form or format for presenting information on fees and compensation described in section 408(g)(6)(A)(iii) (e.g., narrative, chart, combination of both) that might be particularly suitable in giving participants a clear and understandable description of the fees and compensation received by a fiduciary adviser or its affiliates? Is there an optimal time frame, relative to when the advice is provided, for providing this information to participants and beneficiaries? What impact, if any, will the receipt of a model form have on investment decisions made by participants and beneficiaries? 5. Persons that may qualify as “fiduciary advisers” are invited to provide forms that they currently use, or might use, to provide the kinds of fee and compensation information described above. As described in ERISA section 408(g)(11)(A), “fiduciary advisers” may include investment advisers registered under the Investment Advisers Act of 1940, certain banks and similar financial institutions, insurance companies qualified to do business under the laws of a State, and brokers or dealers registered under the Securities Exchange Act of 1934. Commenters are reminded that submissions are made solely for the purpose of assisting the Department. Accordingly, no inferences should be drawn as to whether the forms submitted meet the standards for presentation described in ERISA section 408(g)(8)(A). Signed at Washington, DC, this 28th day of November, 2006. Bradford P. Campbell, Acting Assistant Secretary, Employee Benefits Security Administration, Department of Labor. [FR Doc. E6-20402 Filed 12-1-06; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF LABOR Occupational Safety and Health Administration [Docket No. NRTL2-98] NSF International; Expansion of Recognition AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Notice. SUMMARY: This notice announces the Occupational Safety and Health Administration's final decision expanding the recognition of NSF International
(NSF)as a Nationally Recognized Testing Laboratory under 29 CFR 1910.7. DATES: The expansion of recognition becomes effective on December 4, 2006. FOR FURTHER INFORMATION CONTACT: MaryAnn Garrahan, Director, Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-3655, Washington, DC 20210, or phone
(202)693-2110. SUPPLEMENTARY INFORMATION: Notice of Final Decision The Occupational Safety and Health Administration
(OSHA)hereby gives notice of the expansion of recognition of NSF International
(NSF)as a Nationally Recognized Testing Laboratory (NRTL). NSF's expansion covers the use of additional test standards. OSHA's current scope of recognition for NSF may be found in the following informational Web page: *http://www.osha.gov/dts/otpca/nrtl/nsf.html* . OSHA recognition of an NRTL signifies that the organization has met the legal requirements in Section 1910.7 of Title 29, Code of Federal Regulations (29 CFR 1910.7). Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products “properly certified” 1 by the NRTL to meet OSHA standards that require testing and certification. 1 Properly certified means, in part, that the product is labeled or marked with the NRTL's “registered” certification mark ( *i.e.* , the mark the NRTL uses for its NRTL work) and that the product certification falls within the scope of recognition of the NRTL. The Agency processes applications by an NRTL for initial recognition or for expansion or renewal of this recognition following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the **Federal Register** in processing an application. In the first notice, OSHA announces the application and provides its preliminary finding and, in the second notice, the Agency provides its final decision on the application. These notices set forth the NRTL's scope of recognition or modifications of that scope. We maintain an informational Web page for each NRTL, which details its scope of recognition. These pages can be accessed from our Web site at *http://www.osha.gov/dts/otpca/nrtl/index.html* . NSF submitted an application, dated May 10, 2005, (see Exhibit 16-1) to expand its recognition to include 19 additional test standards. The NRTL then amended the original application to request two additional test standards (see Exhibit 16-2). The NRTL Program staff determined that each of these standards is an “appropriate test standard” within the meaning of 29 CFR 1910.7(c). However, one of these standards was already included in NSF's scope. Therefore, OSHA is approving 20 test standards for the expansion. In connection with this request, OSHA did not perform an on-site review of NSF's NRTL testing facilities. However, NRTL Program assessment staff reviewed information pertinent to the request and recommended that NSF's recognition be expanded to include the 20 additional test standards listed below (see Exhibit 16-3). The preliminary notice announcing the expansion application was published in the **Federal Register** on May 18, 2006 (71 FR 28886). Comments were requested by June 2, 2006, but no comments were received in response to this notice. OSHA is now proceeding with this final notice to grant NSF's expansion application. The most recent application processed by OSHA for NSF covered its renewal of recognition, and the final notice granting this renewal was published on August 30, 2005 (70 FR 51371). You may obtain or review copies of all public documents pertaining to the NSF application by contacting the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC, 20210. Docket No. NRTL2-98 contains all materials in the record concerning NSF's recognition. The current address of the NSF facility already recognized by OSHA is: NSF International, 789 Dixboro Road, Ann Arbor, MI 48105. Final Decision and Order NRTL Program staff has examined the application, the assessor's recommendation, and other pertinent information. Based upon this examination and the assessor's recommendation, OSHA finds that NSF has met the requirements of 29 CFR 1910.7 for expansion of its recognition, subject to the limitation and conditions listed below. Pursuant to the authority in 29 CFR 1910.7, OSHA hereby expands the recognition of NSF, subject to the following limitation and conditions. Limitation OSHA limits the expansion of NSF's recognition to testing and certification of products for demonstration of conformance to the test standards listed below. OSHA has determined that the standards meet the requirements for an appropriate test standard, within the meaning of 29 CFR 1910.7(c). UL 48 Electric Signs. UL 65 Wired Cabinets. UL 174 Household Electric Storage Tank Water Heaters. UL 250 Household Refrigerators and Freezers. UL 412 Refrigeration Unit Coolers. UL 430 Waste Disposers. UL 499 Electric Heating Appliances. UL 778 Motor-Operated Water Pumps. UL 858 Household Electric Ranges. UL 873 Temperature-Indicating and -Regulating Equipment. UL 979 Water Treatment Appliances. UL 1026 Electric Household Cooking and Food Serving Appliances. UL 1082 Household Electric Coffee Makers and Brewing-Type Appliances. UL 1083 Household Electric Skillets and Frying-Type Appliances. UL 1261 Electric Water Heaters for Pools and Tubs. UL 1598 Luminaires. UL 1889 Commercial Filters for Cooking Oil. UL 1951 Electric Plumbing Accessories. UL 2157 Electric Clothes Washing Machines and Extractors. UL 2158 Electric Clothes Dryers. The designations and titles of the above test standards were current at the time of the preparation of the notice of the preliminary finding. OSHA's recognition of NSF, or any NRTL, for a particular test standard is limited to equipment or materials ( *i.e.* , products) for which OSHA standards require third-party testing and certification before use in the workplace. Consequently, if a test standard also covers any product(s) for which OSHA does not require such testing and certification, an NRTL's scope of recognition does not include that product(s). Many UL test standards also are approved as American National Standards by the American National Standards Institute (ANSI). However, for convenience, we use the designation of the standards developing organization for the standard as opposed to the ANSI designation. Under our procedures, any NRTL recognized for an ANSI-approved test standard may use either the latest proprietary version of the test standard or the latest ANSI version of that standard. You may contact ANSI to find out whether or not a test standard is currently ANSI-approved. Conditions NSF must also abide by the following conditions of the recognition, in addition to those already required by 29 CFR 1910.7: OSHA must be allowed access to NSF's facilities and records for purposes of ascertaining continuing compliance with the terms of its recognition and to investigate as OSHA deems necessary; If NSF has reason to doubt the efficacy of any test standard it is using under this program, it must promptly inform the test standard developing organization of this fact and provide that organization with appropriate relevant information upon which its concerns are based; NSF must not engage in or permit others to engage in any misrepresentation of the scope or conditions of its recognition. As part of this condition, NSF agrees that it will allow no representation that it is either a recognized or an accredited Nationally Recognized Testing Laboratory
(NRTL)without clearly indicating the specific equipment or material to which this recognition is tied, or that its recognition is limited to certain products; NSF must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major changes in its operations as an NRTL, including details; NSF will meet all the terms of its recognition and will always comply with all OSHA policies pertaining to this recognition; and NSF will continue to meet the requirements for recognition in all areas where it has been recognized. Edwin G. Foulke, Jr., Assistant Secretary. [FR Doc. E6-20405 Filed 12-1-06; 8:45 am] BILLING CODE 4510-26-P DEPARTMENT OF LABOR Occupational Safety and Health Administration [Docket No. NRTL3-92] TUV Rheinland of North America, Inc.; Expansion of Recognition AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Notice. SUMMARY: This notice announces the Occupational Safety and Health Administration's final decision expanding the recognition of TUV Rheinland of North America, Inc.,
(TUV)as a Nationally Recognized Testing Laboratory under 29 CFR 1910.7. DATES: The expansion of recognition becomes effective on December 4, 2006. FOR FURTHER INFORMATION CONTACT: MaryAnn Garrahan, Director, Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-3653, Washington, DC 20210, or phone
(202)693-2110. SUPPLEMENTARY INFORMATION: Notice of Final Decision The Occupational Safety and Health Administration
(OSHA)hereby gives notice of the expansion of recognition of TUV Rheinland of North America, Inc.,
(TUV)as a Nationally Recognized Testing Laboratory (NRTL). TUV's expansion covers the use of additional test standards. OSHA's current scope of recognition for TUV may be found in the following informational Web page: *http://www.osha.gov/dts/otpca/nrtl/tuv.html* . OSHA recognition of an NRTL signifies that the organization has met the legal requirements in Section 1910.7 of Title 29, Code of Federal Regulations (29 CFR 1910.7). Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products “properly certified” 1 by the NRTL to meet OSHA standards that require testing and certification. 1 Properly certified means, in part, that the product is labeled or marked with the NRTL's “registered” certification mark (i.e., the mark the NRTL uses for its NRTL work) and that the product certification falls within the scope of recognition of the NRTL. The Agency processes applications by an NRTL for initial recognition or for expansion or renewal of this recognition following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the **Federal Register** in processing an application. In the first notice, OSHA announces the application and provides its preliminary finding and, in the second notice, the Agency provides its final decision on the application. These notices set forth the NRTL's scope of recognition or modifications of that scope. We maintain an informational Web page that details the scope of recognition for each NRTL. These pages can be accessed from our Web site at *http://www.osha.gov/dts/otpca/nrtl/index.html* . TUV submitted an application, dated December 20, 2004, (see Exhibit 32-1) to expand its recognition to include five additional test standards. The NRTL then amended the original application to request four additional test standards (see Exhibit 32-2). The NRTL Program staff determined that each of these standards is an “appropriate test standard” within the meaning of 29 CFR 1910.7(c). However, one standard was already included in TUV's scope. Therefore, OSHA is approving eight test standards for the expansion. In connection with this request, OSHA performed an on-site review of TUV's NRTL testing facility. The assessor reviewed information pertinent to the request and recommended expansion for the eight additional test standards (see Exhibit 32-3). The preliminary notice announcing the expansion application was published in the **Federal Register** on July 24, 2006 (71 FR 41841). Comments were requested by August 8, 2006, but no comments were received in response to this notice. OSHA is now proceeding with this final notice to grant TUV's expansion application. The most recent application processed by OSHA for TUV also covered an expansion of recognition, and the final notice granting this expansion was published on June 20, 2003 (68 FR 37030). You may obtain or review copies of all public documents pertaining to the TUV application by contacting the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210. Docket No. NRTL3-92 contains all materials in the record concerning TUV's recognition. The current address of the TUV facility already recognized by OSHA is: TUV Rheinland of North America, Inc., 12 Commerce Road, Newton, CT 06470. Final Decision and Order NRTL Program staff has examined the application, the assessor's recommendation, and other pertinent information. Based upon this examination and the assessor's recommendation, OSHA finds that TUV has met the requirements of 29 CFR 1910.7 for expansion of its recognition, subject to the limitation and conditions listed below. Pursuant to the authority in 29 CFR 1910.7, OSHA hereby expands the recognition of TUV, subject to the following limitation and conditions. Limitation OSHA limits the expansion of TUV's recognition to testing and certification of products for demonstration of conformance to the test standards listed below. OSHA has determined that the standards meet the requirements for an appropriate test standard, within the meaning of 29 CFR 1910.7(c). UL 943 Ground-Fault Circuit-Interrupters. UL 991 Tests for Safety-Related Controls Employing Solid-State Devices. UL 1047 Isolated Power Systems Equipment. UL 1363 Relocatable Power Taps. UL 1662 Electric Chain Saws. UL 1664 Immersion-Detection Circuit-Interrupters. UL 1741 Inverters, Converters, Controllers and Interconnection System Equipment for Use With Distributed Energy Resources. UL 1863 Communications-Circuit Accessories. The designations and titles of the above test standards were current at the time of the preparation of the notice of the preliminary finding. OSHA's recognition of TUV, or any NRTL, for a particular test standard is limited to equipment or materials (i.e., products) for which OSHA standards require third-party testing and certification before use in the workplace. Consequently, if a test standard also covers any product(s) for which OSHA does not require such testing and certification, an NRTL's scope of recognition does not include that product(s). Many UL test standards also are approved as American National Standards by the American National Standards Institute (ANSI). However, for convenience, we use the designation of the standards developing organization for the standard as opposed to the ANSI designation. Under our procedures, any NRTL recognized for an ANSI-approved test standard may use either the latest proprietary version of the test standard or the latest ANSI version of that standard. You may contact ANSI to find out whether or not a test standard is currently ANSI-approved. Conditions TUV must also abide by the following conditions of the recognition, in addition to those already required by 29 CFR 1910.7: OSHA must be allowed access to TUV's facilities and records for purposes of ascertaining continuing compliance with the terms of its recognition and to investigate as OSHA deems necessary; If TUV has reason to doubt the efficacy of any test standard it is using under this program, it must promptly inform the test standard developing organization of this fact and provide that organization with appropriate relevant information upon which its concerns are based; TUV must not engage in or permit others to engage in any misrepresentation of the scope or conditions of its recognition. As part of this condition, TUV agrees that it will allow no representation that it is either a recognized or an accredited Nationally Recognized Testing Laboratory
(NRTL)without clearly indicating the specific equipment or material to which this recognition is tied, or that its recognition is limited to certain products; TUV must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major changes in its operations as an NRTL, including details; TUV will meet all the terms of its recognition and will always comply with all OSHA policies pertaining to this recognition; and TUV will continue to meet the requirements for recognition in all areas where it has been recognized. Edwin G. Foulke, Jr., Assistant Secretary of Labor. [FR Doc. E6-20406 Filed 12-1-06; 8:45 am] BILLING CODE 4510-26-P LIBRARY OF CONGRESS Copyright Office Docket No. 07-10802 Section 108 Study Group: Copyright Exceptions for Libraries and Archives AGENCY: Office of Strategic Initiatives and Copyright Office, Library of Congress. ACTION: Notice of a public roundtable with request for comments. SUMMARY: The Section 108 Study Group announces a public roundtable discussion on certain issues relating to the exceptions and limitations applicable to libraries and archives under the Copyright Act, and seeks written comments on these issues. This notice
(1)announces a public roundtable discussion regarding the issues identified in this notice and
(2)requests written comments from all interested parties on the issues described in this notice. These issues relate primarily to making and distributing copies pursuant to requests by individual users, as well as to provision of user access to unlicensed digital works. DATES: *Roundtable Discussions:* The public roundtable will be held in Chicago, Illinois, on Wednesday, January 31, 2007, from 8:30 a.m. to 4 p.m. C.S.T. Requests to participate must be received by the Section 108 Study Group by 5 p.m. E.S.T. on January 12, 2007. *Written Comments:* Interested parties may submit written comments on any of the topics discussed in this notice from 8:30 a.m. E.S.T. on February 1, 2007, to 5 p.m. E.S.T. on March 9, 2007. ADDRESSES: All written comments and requests to participate in roundtables should be addressed to Mary Rasenberger, Director of Program Management, National Digital Information Infrastructure and Preservation Program, Office of Strategic Initiatives, Library of Congress. Comments and requests to participate may be sent
(1)by electronic mail (preferred) to the e-mail address *section108@loc.gov* , or
(2)by hand delivery by a private party or a commercial, non-government courier or messenger, addressed to the Office of Strategic Initiatives, Library of Congress, James Madison Memorial Building, Room LM-637, 101 Independence Avenue S.E., Washington, DC 20540, between 8:30 a.m. and 5 p.m. E.S.T. If delivering by courier or messenger please provide the delivery service with the Office of Strategic Initiatives phone number:
(202)707-3300. ( *See* ** Supplementary Information** , Section 4: “Procedures for Submitting Requests to Participate in Roundtable Discussions and for Submitting Written Comments” below for file formats and other information about electronic and non-electronic submission requirements.) Submission by overnight service or regular mail will not be effective. The public roundtable will be held at DePaul University College of Law, Lewis Building, 10th Floor, Room 1001, 25 E. Jackson Boulevard, Chicago, Illinois, 60604, on Wednesday, January 31, 2007. FOR FURTHER INFORMATION CONTACT: Christopher Weston, Attorney-Advisor, U.S. Copyright Office. E-mail *cwes@loc.gov* , Telephone
(202)707-2592, Fax
(202)707-0815. SUPPLEMENTARY INFORMATION: 1. Background. The Section 108 Study Group was convened in April 2005 under the sponsorship of the Library of Congress’ National Digital Information Infrastructure and Preservation Program (NDIIPP), in cooperation with the U.S. Copyright Office. The Study Group seeks written comment on and participation in a roundtable discussion scheduled for January 31, 2007, on the issues described in this notice. The Study Group is an independent committee charged with examining how the exceptions and limitations to the exclusive rights under copyright law that are applicable specifically to libraries and archives, namely those set out in section 108 of the Copyright Act, may need to be amended to take account of the widespread use of digital technologies. More detailed information regarding the Section 108 Study Group and its work can be found at *http://www.loc.gov/section108* . Section 108 was included in the 1976 Copyright Act in recognition of the vital role of libraries and archives to our nation’s education and cultural heritage, and their unique needs in serving the public. The exceptions were carefully crafted to maintain a balance between the legitimate interests of libraries and archives on the one hand, and rights-holders on the other, in a manner that best serves the national interest. The evolution of copyright law demonstrates that the technologies available at any given time necessarily influence where and how appropriate balances can be struck between the interests of rights-holders and users. As the Copyright Office recognized in 1988, it is important to review the section 108 exceptions periodically to ensure that they take account of new technologies in maintaining a beneficial balance among the interests of creators and other rights-holders and libraries and archives. *See* The Register of Copyrights, Library Reproduction of Copyrighted Works (17 U.S.C. 108): Second Report 128-29 (1988). In that spirit, the Section 108 Study Group is charged with the task of identifying those areas in which new technologies have changed the activities of libraries and archives, users, and rights-holders, so that the effectiveness or relevance of applicable section 108 exceptions are called into question. The Study Group will attempt to formulate appropriate, workable solutions where amendment is recommended. In March 2006, the Study Group held public roundtable discussions in Los Angeles, California, and Washington, D.C., and requested written comments on issues relating to general eligibility for the section 108 exceptions, as well as preservation and replacement copying. Specifically, interested parties were asked to comment on
(1)proposed amendments to the preservation and replacement exceptions in subsections 108(b) and (c),
(2)a proposal to permit preservation copies of published works in limited circumstances,
(3)a proposal to permit preservation copies of certain types of Internet content, and
(4)questions on what entities should be eligible to take advantage of the section 108 exceptions. With regard to the latter, the Study Group considered questions of whether to restrict section 108 eligibility to nonprofit and government entities, whether to expressly include purely virtual entities, and whether to include museums. The Study Group anticipates that it will recommend that section 108 be amended to cover museums as well as libraries and archives. Although museums are not expressly addressed in this notice, the Study Group requests that you consider the questions set forth below in light of their potential effects on museums, as well as on libraries and archives. The written comments and roundtable transcripts from March 2006 are available on the Web site *http://www.loc.gov/section108* . Recently, the Study Group examined the provisions of section 108 governing copies made by libraries and archives at the request of users, including interlibrary loan copies, as well as whether any new provisions relating to copies, performances or displays made in the course of providing access are necessary. Specifically, the Study Group seeks public input on whether any amendment is warranted to
(1)the subsection 108(d),
(e)and
(g)provisions addressing copies made for users, including copies made under interlibrary loan arrangements;
(2)the exclusions currently set out in subsection 108(i) that prohibit libraries and archives from taking advantage of subsections
(d)and
(e)for most non-text-based works; and
(3)allow libraries and archives to make copies of unlicensed electronic works in order to provide user access and to provide access via performance or display. Note that any amendments to section 108 must conform to the United States’ international obligations under the Berne Convention to provide exceptions to exclusive rights only “in certain special cases” that do “not conflict with the normal exploitation of the work” and do not “unreasonably prejudice the legitimate interests” of the rights-holder. The Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, art. 9(2), 25 U.S.T. 1341, 828 U.N.T.S. 221. Nothing in this **Federal Register** notice is meant to reflect a consensus or recommendation of the Study Group. Discussions are ongoing in the areas of inquiry described below, and the input the Study Group receives from the public through the roundtable, the written submissions, and otherwise is intended to further those discussions. Pursuant to 2 U.S.C. 136, the Study Group now seeks input, both through written comment and participation in the public roundtable described in this notice, on whether there are compelling concerns in any of the areas identified that merit a legislative or other solution and, if so, which solutions might effectively address those concerns without conflicting with the legitimate interests of other stakeholders. 2. Areas of Inquiry. **Public Roundtable** . Participants in the roundtable discussions will be asked to respond to the specific questions set forth below in each topic area in this **Federal Register** notice. **Written Comments.** The Study Group also seeks written comment on the topic areas and specific questions identified in this Federal Register notice. 3. Specific Questions. The Study Group seeks written comment and participation in the roundtable discussions on the questions set forth below in this Section 3, inclusive of Topics A, B and C. **TOPIC A: AMENDMENTS TO CURRENT SUBSECTIONS 108(d), (e), AND (g)(2) REGARDING COPIES FOR USERS, INCLUDING INTERLIBRARY LOAN** *General Issue* Should the provisions relating to libraries and archives making and distributing copies for users, including via interlibrary loan (which include the current subsections 108(d), (e), and (g), as well as the CONTU guidelines, to be explained below) be amended to reflect reasonable changes in the way copies are made and used by libraries and archives, taking into account the effect of these changes on rights-holders? *Background* Subsections 108
(d)and
(e)provide exceptions to the exclusive rights of reproduction and distribution, permitting libraries and archives to make single copies of copyrighted works for users. Subsection
(d)permits the copying of articles or portions of works, and subsection
(e)allows the copying of entire works in limited circumstances. Specifically, subsection
(d)allows libraries and archives to reproduce and distribute a single copy of “no more than one article or other contribution to a copyrighted collection or periodical issue, or . . . a copy or phonorecord of a small part of any other copyrighted work.” 17 U.S.C. 108(d) (2003). Subsection
(e)allows the reproduction and distribution of an “entire work, or . . . a substantial part of it” if the library or archives first determines, “on the basis of a reasonable investigation,” that “a copy or phonorecord of the work cannot be obtained at a fair price.” 17 U.S.C. 108(e). Additionally, both subsections require that
(1)the copy become the property of the requesting user (so that libraries and archives cannot use these exceptions as a means to enlarge their collections, *see* Melville B. Nimmer & David Nimmer, *Nimmer on Copyright* § 8.03[E][2][b] (2004)),
(2)the library or archives making the copy has no notice that the copy will be used for any purpose other than “private study, scholarship, or research,” 17 U.S.C. 108(d)(1) and (e)(1), and
(3)the library or archives displays prominently at the place where orders are accepted a copyright warning in accordance with requirements provided by the Register of Copyrights. This notice must also appear on the order form. 17 U.S.C. 108(d)(2) and (e)(2). Subsections
(d)and
(e)apply where a user makes a direct request of the library or archives providing the copy, as well as where copies are provided by another library or archives through interlibrary loan. Interlibrary loan is the practice through which libraries request material from, or supply material to, other libraries. Its purpose is to obtain, upon request of a library user, material not available in the user’s own library. Where an *entire* work, such as a book, is sought, the library’s copy of the book itself is usually delivered to the requesting user’s library, called the borrowing library. There are cases, however, where it is unsafe or impractical to ship the work, such as if the copy is particularly fragile, rare, or unwieldy. In such cases, the fulfilling library or archives may create and deliver a copy instead, provided a copy cannot otherwise be obtained at a fair price and the other conditions of subsection
(e)are met. Where just a *portion* of the work is sought, the library or archives may provide a copy under the conditions set out in subsection (d). The scope of subsections
(d)and
(e)is limited by subsection (g), which states that the section 108 exceptions apply only to “the isolated and unrelated reproduction and distribution of a single copy or phonorecord of the same material on separate occasions.” 17 U.S.C. 108(g). Subsection (g)(1) further mandates that the provisions do not apply where a library or archives, or its employee: is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group . . . . 17 U.S.C. 108(g)(1). In addition, interlibrary loan or other user copies of articles or small portions of larger works under subsection
(d)are limited by subsection (g)(2). This subsection states that section 108 does not permit the “systematic reproduction of single or multiple copies or phonorecords of material described in subsection (d),” and clarifies that copies made for interlibrary loan purposes do not violate the prohibition against systematic copying provided they “do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.” 17 U.S.C. 108(g)(2). This provision was included with the intention of preventing certain practices from developing under the rubric of “interlibrary loan,” such as systematic arrangements among libraries to effectively divide up and share subscriptions or purchases (such as where libraries X, Y, and Z all would like to obtain journals A, B, and C, so they agree that library X will purchase a subscription to journal A, library Y to journal B, and library Z to journal C, and they will share each subscription with each other through interlibrary loan). It was agreed in 1976 that these types of consortial buying arrangements should not be sanctioned by section 108 because by tipping the balance too far in favor of the interests of libraries they would materially affect sales. Guidelines for interpreting the phrase “such aggregate quantities as to substitute for a subscription to or purchase of such work” were promulgated in 1976 by the National Commission on New Technological Uses of Copyrighted Works (CONTU) at the request of Congress and published in the Conference Report on the Copyright Act of 1976. The CONTU guidelines are not law, but were endorsed by Congress as a “reasonable interpretation” of subsection (g)(2). H.R. Conf. Rep. No. 94-1733, at 72-74 (1976). The guidelines (available in full at *http://www.copyright.gov/circs/circ21.pdf* ) state that a library may not receive in a single calendar year more than five copies of an article or articles published in any given periodical within five years prior to the date of the request. The guidelines do not govern interlibrary loan copies of periodical materials published more than five years prior to a request. In addition, the guidelines provide that a library may not receive within a single calendar year more than five copies of or from any given non-periodical work — such as fiction and poetry. The CONTU guidelines also include certain administrative requirements. All interlibrary loan reproduction requests must be accompanied by a certification that the request conforms to the guidelines, and libraries and archives that request copies must keep records of all fulfilled interlibrary loan reproduction requests for at least three full calendar years after the requests are made. Subsection 108(i) further qualifies subsections
(d)and
(e)by functionally limiting their application primarily to text-based works. Subsection
(i)states that copies for users may not be made from: a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to . . . pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections
(d)and (e). 17 U.S.C. 108(i). 1 For brevity’s sake, this notice will refer to those categories of works excluded from subsections
(d)and
(e)by subsection
(i)as “non-text-based works,” and those currently covered by
(d)and
(e)as “text-based.” A further description of subsection
(i)and questions about whether and how it might be amended are set forth in Topic B, below. 1 Note that subsection(i) does not exclude pantomimes, choreographic works, or sound recordings that do not incorporate musical works from the subsection
(d)and
(e)exceptions. The current subsections
(d)and
(e)were enacted with the Copyright Act of 1976, and, as such, were drafted with analog copying in mind, namely photocopying. Nothing in the provisions expressly precludes their application to digital technologies. However, digital copying under subsections
(d)and
(e)is effectively barred by subsection 108(a)’s single-copy limit. Subsection
(a)states that “it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce *no more than one copy or phonorecord of a work* , except as provided in subsections
(b)and (c).” 17 U.S.C. 108(a) (emphasis added). As a practical and technical matter, producing a digital copy generally requires the production of temporary and incidental copies, and transmitting the copy via digital delivery systems such as e-mail requires additional incidental copies. The Copyright Act does not provide any express exception for such copies, although section 107 (which sets forth the fair use exceptions) might apply in some cases, and licenses might be implied in others. Libraries and archives maintain that their missions require them to be able to make and/or provide digital copies to users “both directly and via interlibrary loan” in order to respond to the fact that research, scholarship, and private study are now conducted in a digital environment. There is an increasing amount of so-called “born-digital” material in the collections of libraries and archives, and many users expect to receive materials electronically. There are also increased efficiencies and decreased costs when digital technologies are used. Overall, it is argued that it makes little sense in this day and age to require libraries and archives to print analog copies of requested materials and deliver them in person, by mail, or by fax. The Study Group’s understanding is that, as a matter of practice, some libraries and archives do in fact already engage in digital copying in making copies for users under section 108, and necessarily make incidental intermediate digital copies in doing so, but do not retain those copies and often deliver a non-electronic version to the user. It is important to distinguish between permitting libraries and archives to make digital copies for users and permitting digital delivery of those copies. Permitting the making of *digital* copies for users would provide increased flexibility in how libraries and archives can produce the copies. Those digital copies might be distributed in any number of ways, for instance:
(1)a photocopy could be made from an analog source and then sent via fax or mail to the requesting library;
(2)a printout could be made from a digital source to create an analog copy, which is then sent via fax or mail to the requesting library;
(3)a digital source file could be sent to the requesting library via e-mail or posted on a Web site with a secure URL for access by the user; or
(4)a digital scan could be made from an analog source, which is then sent electronically as in example number three. Electronic delivery, as in examples three and four above, would provide increased efficiency and would allow libraries and archives and their users to take greater advantage of digital technologies to enable increased access to those works unlikely to be found in local libraries. Electronic delivery raises distinct issues from digital copying. Just as digital technologies allow libraries and archives new opportunities to serve the public, the same technologies allow copyright owners to develop new business models and modes of distribution. Rights-holders have remarked that giving libraries and archives the ability to deliver copies to users electronically, unless reasonably limited, potentially could cause significant harm to rights-holders by undermining markets for digital works. Many rights-holders are shifting toward new models of distribution and payment. For instance, markets are emerging for the online purchase of articles or small portions of text-based works. Theoretically, if a user can obtain a copy online from any library through interlibrary loan, he or she might be less likely to purchase a copy, even if purchases could be made conveniently. An additional concern is that copies provided to users electronically are susceptible to downloading by the user and to downstream distribution via the Internet, potentially multiplying many times over and displacing sales. Rights-holders are also concerned about digital copies being made available by libraries and archives under subsections
(d)and
(e)to users outside their traditional user communities, without the mediation of the user’s own library. Online technologies allow libraries and archives to serve anyone regardless of geographic distances or membership in a community. Many of the section 108 exceptions were put in place on the assumption that certain natural limitations, or inherent inefficiencies in making photocopies, would prevent the exceptions from unreasonably interfering with the market for the work. For example, it was presumed that users had to go to their local library to make an interlibrary loan request. The technological possibility of direct digital delivery did not exist. But if it were to become possible under the 108 exceptions, for instance, for any user electronically to request free copies from any library from their desks, that natural friction would break down, as would the balance originally struck by the provisions. As such, the potential for lost sales could increase from negligible to measurable against the bottom line, and as such “conflict with the normal exploitation of the work.” Berne Convention, art. 9(2). One could, for instance, envision direct-to-user interlibrary loan arrangements where a user could search for, request and receive a reproduction of a copyrighted work online from any library without having to go through the user’s own library that would directly compete with the rights-holders’ markets. It is not clear to the Study Group that the existing provisions of subsections
(d)and
(e)would prevent libraries and archives from providing this type of universal on-demand access if digital copying and delivery are permitted without further qualification. While subsection
(g)and the CONTU guidelines would limit the ability to use subsections
(d)and
(e)for such interlibrary loan practices for certain materials, they would not necessarily eliminate it. The question then is how to craft rules around digital copying and delivery to enable libraries and archives to service users efficiently, without opening up the exception in a way that could materially interfere with markets for copyrighted works just as subsections
(d)and
(e)were limited in 1976 by subsection
(g)in order to avoid the potential for those exceptions to be used in a way that would cause material market harm. The primary issue for comment and discussion in Topic A is whether and under what circumstances digital copying and distribution under subsections
(d)and
(e)should be allowed. In responding to the questions posed in Topic A, please note that the Study Group is seeking responses regarding the application of subsections
(d)and
(e)as currently limited by subsection
(i)(i.e., principally restricted to * text-based* materials). Questions about applying subsections
(d)and
(e)to non-text-based works will be addressed in Topic B. Also note that the Topic A questions address copies made for a library’s or archives’ own users, as well as interlibrary loan copying. *Specific Questions* 1. How can the copyright law better facilitate the ability of libraries and archives to make copies for users in the digital environment without unduly interfering with the interests of rights-holders? 2. Should the single-copy restriction for copies made under subsections
(d)and
(e)be replaced with a flexible standard more appropriate to the nature of digital materials, such as “a limited number of copies as reasonably necessary for the library or archives to provide the requesting patron with a single copy of the requested work”? If so, should this amendment apply both to copies made for a library’s or archives’ own users and to interlibrary loan copies? 3. How prevalent is library and archives use of subsection
(d)for direct copies for their own users? For interlibrary loan copies? How would usage be affected if digital reproduction and/or delivery were explicitly permitted? 4. How prevalent is library and archives use of subsection
(e)for direct copies for their own users? For interlibrary loan copies? How would usage be affected if digital reproduction and/or delivery were explicitly permitted? 5. If the single-copy restriction is replaced with a flexible standard that allows digital copies for users, should restrictions be placed on the making and distribution of these copies? If so, what types of restrictions? For instance, should there be any conditions on digital distribution that would prevent users from further copying or distributing the materials for downstream use? Should user agreements or any technological measures, such as copy controls, be required? Should persistent identifiers on digital copies be required? How would libraries and archives implement such requirements? Should such requirements apply both to direct copies for users and to interlibrary loan copies? 6. Should digital copying for users be permitted only upon the request of a member of the library’s or archives’ traditional or defined user community, in order to deter online shopping for user copies? If so, how should a user community be defined for these purposes? 7. Should subsections
(d)and
(e)be amended to clarify that interlibrary loan transactions of digital copies require the mediation of a library or archives on both ends, and to not permit direct electronic requests from, and/or delivery to, the user from another library or archives? 8. In cases where no physical object is provided to the user, does it make sense to retain the requirement that “the copy or phonorecord becomes the property of the user”? 17 U.S.C. 108(d)(1) and (e)(1). In the digital context, would it be more appropriate to instead prohibit libraries and archives from using digital copies of works copied under subsections
(d)and
(e)to enlarge their collections or as source copies for fulfilling future requests? 9. Because there is a growing market for articles and other portions of copyrighted works, should a provision be added to subsection (d), similar to that in subsection (e), requiring libraries and archives to first determine on the basis of a reasonable investigation that a copy of a requested item cannot be readily obtained at a fair price before creating a copy of a portion of a work in response to a patron’s request? Does the requirement, whether as applied to subsection
(e)now or if applied to subsection (d), need to be revised to clarify whether a copy of the work available for license by the library or archives, but not for purchase, qualifies as one that can be “obtained”? 10. Should the Study Group be looking into recommendations for revising the CONTU guidelines on interlibrary loan? Should there be guidelines applicable to works older than five years? Should the record keeping guideline apply to the borrowing as well as the lending library in order to help administer a broader exception? Should additional guidelines be developed to set limits on the number of copies of a work or copies of the same portion of a work that can be made directly for users, as the CONTU guidelines suggest for interlibrary loan copies? Are these records currently accessible by people outside of the library community? Should they be? 11. Should separate rules apply to international electronic interlibrary loan transactions? If so, how should they differ? **TOPIC B: AMENDMENTS TO SUBSECTION 108(i)** *General Issue* Should subsection 108(i) be amended to expand the application of subsections
(d)and
(e)to any non-text-based works, or to any text-based works that incorporate musical or audiovisual works? *Background* As noted in the background to Topic A above, subsection
(i)excludes most categories of non-text-based works from the exceptions provided to libraries and archives under subsections
(d)and (e). Questions have been raised as to why this exclusion was written into the law. The relevant House, Senate, and Conference Reports are silent on the matter, beyond the House Report’s emphasizing that libraries and archives are free to avail themselves of the section 107 fair use factors in copying non-text-based materials for users. *See* H.R. Rep. No. 94-1476, at 78 (1976). One likely reason for the exclusion is that the principal copying device of concern in 1976, when section 108 was enacted, was the photocopier. Most libraries and archives did not possess the technology to make quality copies of non-text-based works and so may not have pressed for the right to do so. As more material is generated in digital media that blurs the lines between traditional format types, subsection (i)’s exclusion of most non-text-based categories of works is being called into question. Increasingly, works are produced in multimedia formats, including some traditionally text-based works, such as presentations, papers, and journals. It has been argued that excluding these categories of works from some accommodation under subsections
(d)and
(e)hampers scholarly access to a critical and growing body of intellectual and creative material. In addition, restrictions on copies for users of non-text-based works are seen by some as placing a greater burden on researchers, scholars, and students of music, film, and the visual arts than on those who study text-based works, in that there are greater obstacles to obtaining research materials. Eliminating the subsection
(i)exclusions would raise a number of challenges, however. The subsection
(d)and
(e)exceptions were drafted to address text-based works; there are legitimate questions as to whether the provisions’ respective conditions can be applied successfully to non-text-based materials in a digital environment. For instance, the current subsection
(d)boundaries of “an article or other contribution to a copyrighted collection or periodical issue,” 17 U.S.C. 108(d), do not neatly apply to non-text-based works. In the context of section 108, is one song on an album equivalent to an article in a journal? Is one photograph an entire work by itself or part of a larger copyrighted compilation? What if the song or photograph is available individually? In addition, business models used to market and distribute content may be affected differently depending on the media. Given evolving online entertainment business models, the ability to make and/or distribute digital copies could have different effects on markets for recorded sound and film, for instance, than on markets for text-based materials. Each of the issues raised previously in Topic A should be reconsidered in light of non-text-based media, as it is possible that views may change depending on the media. *Specific Questions* 1. Should any or all of the subsection
(i)exclusions of certain categories of works from the application of the subsection
(d)and
(e)exceptions be eliminated? What are the concerns presented by modifying the subsection
(i)exclusions, and how should they be addressed? 2. Would the ability of libraries and archives to make and/or distribute digital copies have additional or different effects on markets for non-text-based works than for text-based works? If so, should conditions be added to address these differences? For example: Should digital copies of visual works be limited to diminished resolution thumbnails, as opposed to a “small portion” of the work? Should persistent identifiers be required to identify the copy of a visual work and any progeny as one made by a library or archives under section 108, and stating that no further distribution is authorized? Should subsection
(d)and
(e)user copies of audiovisual works and sound recordings, if delivered electronically, be restricted to delivery by streaming in order to prevent downloading and further distribution? If so, how might scholarly practices requiring the retention of source materials be accommodated? 3. If the exclusions in subsection
(i)were eliminated in whole or in part, should there be different restrictions on making direct copies for users of non-text-based works than on making interlibrary loan copies? Would applying the interlibrary loan framework to non-text-based works require any adjustments to the CONTU guidelines? 4. If the subsection
(i)exclusions were not eliminated, should an additional exception be added to permit the application of subsections
(d)and
(e)to musical or audiovisual works embedded in textual works? Would doing so address the needs of scholars, researchers, and students for increased access to copies of such works? **TOPIC C: LIMITATIONS ON ACCESS TO ELECTRONIC COPIES, INCLUDING VIA PERFORMANCE OR DISPLAY** *General Issue* Should section 108 be amended to permit libraries and archives to make temporary and incidental copies of unlicensed digital works in order to provide user access to these works? Should any exceptions be added to the copyright law to permit limited public performance and display in certain circumstances in order to allow for user access to unlicensed digital works? *Background* Access to digital materials particularly those that exist in purely electronic form is generally granted pursuant to a license. There are, however, instances in which libraries and archives have lawfully obtained copies of electronic materials for which they have no license, and it is expected that this may increasingly be the case. Examples include donated personal or business files such as e-mails or other documents (where the donor agreement is silent on use rights), electronic manuscripts such as drafts of novels or notes, and legally captured Web sites. The mediation of a computer or other machine is necessary to perceive these works, and in the course of rendering the works in perceivable form, temporary and incidental copies are made. Libraries and archives have no clear guidance on whether they may make the copies incidental or otherwise required to perceive digital works. In some cases, a license to make temporary, incidental copies of unlicensed digital works can be implied. For instance, it is commonly accepted that there are implied rights to make the incidental copies necessary to play a DVD or CD on a computer. The question is what, if any, implied rights exist for libraries and archives to facilitate access to other kinds of materials? What about works acquired in purely electronic form that are stored on a library’s or archives’ servers from which they must be copied and transmitted to a terminal for user access? In addition, display and/or performance as well as reproduction rights may be implicated in accessing these works. The Study Group seeks input on how significant an issue this is whether libraries and archives have and are likely in the future to have a sufficient number of unlicensed digital works to merit legislative attention. The European Union’s Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society provides one potential model for addressing these questions. It directs that member states may enact copyright exceptions permitting publicly accessible libraries, museums, educational institutions, and archives to communicate or make available “for the purpose of research or private study, to individual members of the public by dedicated terminals on the[ir] premises . . . works and other subject-matter not subject to purchase or licensing terms which are contained in their collections.” Council Directive 2001/29/EC, art. 5(3)(n), 2001 O.J. (L 167) 10, 17. Would a similar exception be appropriate in the U.S? Certain digital works can be accessed only through display or performance. In providing access to these works, libraries and archives that are open to the public (as they must be to qualify under subsection 108(a)) may need to publicly display or perform the works. For instance, if a library, archives, or museum publicly exhibits a work of audiovisual art, a motion picture, or a musical work, the exhibition would normally constitute a public performance. There are currently no express exceptions in section 108 that address public performance or display. Section 109(c) of the Copyright Act provides an applicable exception to the display right: [T]he owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owners, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. 17 U.S.C. 109(c) (2003). This provision gives libraries and archives some leeway in displaying copies that they own, but it does not address the issues of any incidental copies that may be necessary in order to achieve this display. There is no parallel exception in the Copyright Act for public performances. Note that for purposes of this discussion it is assumed that where the work was acquired through a license, the terms of the license govern and trump the section 108 exceptions, per subsection 108(f)(4). *Specific Questions* 1. What types of unlicensed digital materials are libraries and archives acquiring now, or are likely to acquire in the foreseeable future? How will these materials be acquired? Is the quantity of unlicensed digital material that libraries and archives are likely to acquire significant enough to warrant express exceptions for making temporary copies incidental to access? 2. What uses should a library or archives be able to make of a lawfully acquired, unlicensed digital copy of a work? Is the EU model a good one namely that access be limited to dedicated terminals on the premises of the library or archives to one user at a time for each copy lawfully acquired? Or could security be ensured through other measures, such as technological protections? Should simultaneous use by more than one user ever be permitted? Should remote access ever be permitted for unlicensed digital works? If so, under what conditions? 3. Are there implied licenses to use and provide access to these types of works? If so, what are the parameters of such implied licenses for users? What about for library and archives staff? 4. Do libraries and archives currently rely on implied licenses to access unlicensed content or do they rely instead on fair use? Is it current library and archives practice to attempt to provide access to unlicensed digital works in a way that mirrors the type of access provided to similar analog works? 5. Are the considerations different for digital works embedded in tangible media, such as DVDs or CDs, than for those acquired in purely electronic form? Under which circumstances should libraries and archives be permitted to make server copies in order to provide access? Should the law permit back-up copies to be made? 6. Should conditions on providing access to unlicensed digital works be implemented differently based upon the category or media of work (text, audio, film, photographs, etc.)? 7. Are public performance and/or display rights necessarily exercised in providing access to certain unlicensed digital materials? For what types of works? Does the copyright law need to be amended to address the need to make incidental copies in order to display an electronic work? Should an exception be added for libraries and archives to also perform unlicensed electronic works in certain circumstances, similar to the 109(c) exception for display? If so, under what conditions? 4. Procedure for Submitting Requests to Participate in Roundtable Discussions and for Submitting Written Comments. **Requests to Participate in Roundtable Discussions.** The roundtable discussions will be open to the public. Persons wishing to participate in the discussions must submit a written request to the Section 108 Study Group. The request to participate must include the following information:
(1)the name of the person desiring to participate;
(2)the organization(s) represented by that person, if any;
(3)contact information (address, telephone, telefax, and e-mail); and
(4)a written summary of *no more than four pages* identifying, in order of preference, in which of the three general roundtable topic areas the participant (or his or her organization) would most like to participate and the specific questions the participant wishes to address in each topic area. Space and time constraints may require that participation be limited in one or more of the topic areas, and it is likely that not all requests to participate can be accommodated. Identification of the desired topic areas in order of preference will help the Study Group to ensure that participants will be heard in the area(s) of interest most critical to them. The Study Group will notify each participant in advance of his or her designated topic area(s). Note also for those who wish to attend but not participate in the roundtables that space is limited. Seats will be available on a first-come, first-served basis. All discussions will be transcribed, and transcripts subsequently made available on the Section 108 Study Group Web site ( *http://www.loc.gov/section108* ). **Written Comments.** Written comments must include the following information:
(1)the name of the person making the submission;
(2)the organization(s) represented by that person, if any;
(3)contact information (address, telephone, telefax, and e-mail); and
(4)a statement of no more than 10 pages, responding to any of the topic areas or specific questions in this notice. **Submission of Both Requests to Participate in Roundtable Discussions and Written Comments.** In the case of submitting a request to participate in the roundtable discussions or of submitting written comments, submission should be made to the Section 108 Study Group by e-mail (preferred) or by hand delivery by a commercial courier or by a private party to the address listed above. Submission by overnight delivery service or regular mail will not be effective due to delays in processing receipt. *If by e-mail (preferred)* : Send to the e-mail address *section108@loc.gov* a message containing the information required above for the request to participate or the written submission, as applicable. The summary of issues (for the request to participate in the roundtable discussion) or statement (for the written comments), as applicable, may be included in the text of the message, or may be sent as an attachment. If sent as an attachment, the summary of issues or written statement must be in a single file in either:
(1)Adobe Portable Document File
(PDF)format,
(2)Microsoft Word version 2000 or earlier,
(3)WordPerfect version 9.0 or earlier,
(4)Rich Text File
(RTF)format, or
(5)ASCII text file format. *If by hand delivery by a private party or a commercial, non-government courier or messenger* : Deliver to the address listed above a cover letter with the information required, and include two copies of the summary of issues or written statement, as applicable, each on a write-protected 3.5-inch diskette or CD-ROM, labeled with the legal name of the person making the submission and, if applicable, his or her title and organization. The document itself must be in a single file in either
(1)Adobe Portable Document File
(PDF)format,
(2)Microsoft Word Version 2000 or earlier,
(3)WordPerfect Version 9 or earlier,
(4)Rich Text File
(RTF)format, or
(5)ASCII text file format. Anyone who is unable to submit a comment or request to participate in electronic form (either through e-mail or hand delivery of a diskette or CD-ROM) should submit, with a cover letter containing the information required above, an original and three paper copies of the summary of issues (for the request to participate in the roundtable discussions) or statement (for the written comments) by hand to the appropriate address listed above. Dated: November 28, 2006 Marybeth Peters, Register of Copyrights. [FR Doc. E6-20480 Filed 12-1-06; 8:45 am] BILLING CODE 1410-21-F NATIONAL TRANSPORTATION SAFETY BOARD SES Performance Review Board AGENCY: National Transportation Safety Board. ACTION: Notice. SUMMARY: Notice is hereby given of the appointment of members of the National Transportation Safety Board Performance Review Board. FOR FURTHER INFORMATION CONTACT: Anh Bolles, Chief, Human Resources Division, Office of Administration, National Transportation Safety Board, 490 L'Enfant Plaza, SW., Washington, DC 20594-0001,
(202)314-6355. SUPPLEMENTARY INFORMATION: Section 4314(c)(1) through
(5)of Title 5, United States Code requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management, one or more SES Performance Review Boards. The board reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor, and considers recommendations to the appointing authority regarding the performance of the senior executive. The following have been designated as members of the Performance Review Board of the National Transportation Safety Board. This list published previously on Friday, November 24, 2006. However, a change to membership has occurred since that time and here is the updated membership list. The Honorable Robert L. Sumwalt, Vice Chairman, National Transportation Safety Board; PRB Chair. The Honorable Deborah A.P.hersman, Member, National Transportation Safety Board. Steven Goldberg, Chief Financial Officer, National Transportation Safety Board. Lowell Martin, Deputy Executive Director, Consumer Products Safety Commission. Frank Battle, Deputy Director of Administration, National Labor Relations Board. Joseph G. Osterman,Managing Director, National Transportation Safety Board. Dated: November 29, 2006 Vicky D'Onofrio, Federal Register Coordinator. [FR Doc. 06-9502 Filed 12-1-06; 8:45 am]
Connectionstraces to 12
5 references not yet in our index
  • 43 CFR 2310.4
  • 30 CFR 250
  • 43 CFR 2
  • Pub. L. 108-447
  • Pub. L. 109-280
Citation graph
cites case law
Notices
Public Land Order
U.S.C.§ 1714
U.S.C.§ 1331
U.S.C.§ 1801
U.S.C.§ 552
C.F.R.§ 250.197
U.S.C.§ 3501
U.S.C.§ 552a
C.F.R.§ 2510.3-2
C.F.R.§ 1910.7
Cite43 CFR 2310.4
Cite30 CFR 250
Cite43 CFR 2
Cites 17 · showing 12Cited by 0 across 0 sources
★   the supreme law of the land   ★
Don't Tread on Me
E Pluribus Unum — out of many, one

"If you don't know your rights, you don't have any."

Marginalia · a citizen's law index
A research desk, not legal advice. Always read the cited source before relying on a summary.
Questions or an issue? support@self-law.org
disclaimerMarginalia is a research index, not a law firm. Nothing on this site is legal, tax, or financial advice and no attorney–client relationship is formed by using it. Statutes, regulations, and case law change; summaries, search results, AI output, and member posts may be incomplete, out of date, or wrong. Any interpretation drawn from material on this site should be validated by a licensed attorney in your jurisdiction before you act on it.