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Code · REGISTER · 2007-03-15 · Federal Aviation Administration (FAA), DOT · Rules and Regulations

Rules and Regulations. Final rule

77,520 words·~352 min read·/register/2007/03/15/07-1216·

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

BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 73 [Docket No. FAA-2007-27294; Airspace Docket No. 06-ASO-17 RIN 2120-AA66 Change of Controlling Agency for Restricted Area R-6601; Fort A.P. Hill, VA AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This action updates the name of the controlling agency for Restricted Area R-6601, Fort A.P. Hill, VA. The FAA is taking this action to reflect the correct facility name.
This is an administrative change that does not alter the boundaries, designated altitudes, time of designation, or activities conducted within R-6601. DATES: *Effective Dates:* 0901 UTC, May 10, 2007. FOR FURTHER INFORMATION CONTACT: Paul Gallant, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: The Rule This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by changing the name of the controlling agency for Restricted Area R-6601, Fort A.P. Hill, VA, from “FAA, Potomac Approach,” to “FAA, Potomac TRACON.” This change is administrative only and does not affect the boundaries, designated altitudes, or activities conducted within the restricted areas. Therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary. Section 73.66 of Title 14 CFR part 73 was republished in FAA Order 7400.8N, dated February 16, 2007. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under Department of Transportation Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Environmental Review The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with 311d., FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures.” This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment. List of Subjects in 14 CFR Part 73 Airspace, Prohibited Areas, Restricted Areas. Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows: PART 73—SPECIAL USE AIRSPACE 1. The authority citation for part 73 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 73.66 [Amended] 2. § 73.66 is amended as follows: R-6601 Fort A.P. Hill, VA [Amended] Under controlling agency, by removing the words “FAA, Potomac Approach,” and inserting the words “FAA, Potomac TRACON.” Issued in Washington, DC, on March 8, 2007. Ellen Crum, Acting Manager, Airspace and Rules. [FR Doc. E7-4683 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 121 [Docket No. FAA-1998-4521; Amendment No. 121-332] RIN 2120-AF07 Drug and Alcohol Testing Requirements AGENCY: Federal Aviation Administration, DOT. ACTION: Final rule; technical amendment. SUMMARY: The Federal Aviation Administration
(FAA)is making minor technical changes to update references to various types of commercial operators within the drug and alcohol testing regulations. In the final rule, “National Air Tour Safety Standards” (Air Tours) published on February 13, 2007, we changed the regulatory sections that referred to sightseeing operators that did not hold a certificate but that continued to be subject to drug and alcohol testing requirements. In addition, this technical amendment updates other references in the drug and alcohol testing regulations including addresses. The intent of this amendment is to avoid confusion created by inconsistent terms and references within the FAA's regulations. DATES: *Effective Dates:* Effective on March 15, 2007. FOR FURTHER INFORMATION CONTACT: Patrice M. Kelly, Deputy Division Manager, Drug Abatement Division, Office of Aerospace Medicine, 800 Independence Ave. SW., Washington, DC, 20591.
(202)267-3123; *patrice.kelly@faa.gov.* SUPPLEMENTARY INFORMATION: Technical Amendment This technical amendment will update several references in the FAA's drug and alcohol testing regulations in Title 14 of the Code of Federal Regulations (14 CFR), part 121, appendices I and J. In addition, this amendment will change the location where registrations will be sent, so that the appropriate offices will receive the drug and alcohol testing registration information. Since the inception of the drug testing rules in 1988, and the alcohol testing regulations in 1994, the FAA has included any sightseeing operator defined in 14 CFR 135.1(c) as an “employer” that was required to meet the drug and alcohol testing requirements set forth in 14 CFR part 121, appendices I and J. Under the Air Tours final rule, the FAA has moved the former § 135.1(c) operators to the newly created § 91.147 of 14 CFR. In this amendment, we are changing all references to the term “Operator” as defined in § 135.1(c) to reference the new definition of “Operator” in § 91.147. The “National Air Tour Safety Standards” final rule requires that a § 91.147 operator register its drug and alcohol testing program with the Flight Standards District Office nearest its principal place of business. The technical amendment reflects that change to several sections in appendices I and J of part 121. If this change is not made, these small operators would be required to file the same company contact information with multiple FAA offices. The amendment also updates the addresses where a repair station can file its program with the FAA, if the repair station opts to have its own testing program. We are updating references to “a part 121 certificate holder” and “a part 135 certificate holder.” The drug and alcohol testing regulations will now refer to “part 119 certificate holders with authority to operate under parts 121 and/or 135,” which is a technically more accurate description. In both appendix I, section IX, and appendix J, section VII, we eliminated paragraph “C.2” to incorporate it in the caption within the chart. The chart that appeared in paragraph “C.2” now appears in the newly redesignated paragraph “C.” We made this change to avoid confusion and redundancy. We also removed an “e.g.” provision in the C.2 chart found in both appendix I, section IX, and appendix J, section VII. The “e.g.” in paragraph “C.2” was not used elsewhere in the charts, and was not a substantive provision. Justification for Immediate Adoption On the basis of the above, the FAA does not find that this amendment is a substantial action that requires 30 days after publication before it becomes effective, and that notice and public comment under 5 U.S.C. 533(b) are unnecessary and contrary to the public interest. Further, I find that good cause exists under 5 U.S.C. 533(d) for making this rule effective on the same day that the National Air Tour Safety Standards final rule becomes effective (March 15, 2007), so that references to sections amended in the final rule are up to date. List of Subjects in 14 CFR Part 121 Aircraft, Airmen, Aviation Safety, Reporting and recordkeeping requirements. Accordingly, Title 14 of the Code of Federal Regulations
(CFR)part 121 is amended as follows: PART 121—OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL OPERATIONS 1. The authority citation for part 121 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 44912, 45101-45105, 46105. 2. Amend appendix I to part 121 as follows: A. Amend section II, to revise the definition of “Employer”; and B. Amend section IX by revising paragraphs A, B, C, D.1.e., E.1.f., and E.2. The revisions read as follows: Appendix I to Part 121—Drug Testing Program II. *Definitions.* * * * *Employer* is a part 119 certificate holder with authority to operate under parts 121 and/or 135, an operator as defined in § 91.147 of this chapter, or an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military. An employer may use a contract employee who is not included under that employer's FAA-mandated antidrug program to perform a safety-sensitive function only if that contract employee is included under the contractor's FAA-mandated antidrug program and is performing a safety-sensitive function on behalf of that contractor (i.e., within the scope of employment with the contractor.) IX. *Implementing an Antidrug Program.* A. Each company must meet the requirements of this appendix. Use the following chart to determine whether your company must obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification or whether you must register with the FAA: If you are . . . You must . . . 1. A part 119 certificate holder with authority to operate under parts 121 and/or 135 Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your FAA Principal Operations Inspector. 2. An operator as defined in § 91.147 of this chapter Register with the FAA by contacting the Flight Standards District Office nearest to your principal place of business. 3. An air traffic control facility not operated by the FAA or by or under contract to the U.S. Military Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591. 4. A part 145 certificate holder who has your own antidrug program Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, if you opt to conduct your own antidrug program. 5. A contractor who has your own antidrug program Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, if you opt to conduct your own antidrug program. B. Use the following chart for implementing an antidrug program if you are applying for a part 119 certificate with authority to operate under parts 121 or 135, if you intend to begin operations as defined in § 91.147 of this chapter, or if you intend to begin air traffic control operations (not operated by the FAA or by or under contract to the U.S. Military). Use it to determine whether you need to have an Antidrug and Alcohol Misuse Prevention Program Operations Specification, or whether you need to register with the FAA. Your employees who perform safety-sensitive duties must be tested in accordance with this appendix. The chart follows: If you . . . You must . . . 1. Apply for a part 119 certificate with authority to operate under parts 121 or 135 a. Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification, b. Implement an FAA antidrug program no later than the date you start operations, and c. Meet the requirements of this appendix. 2. Intend to begin operations as defined in § 91.147 of this chapter a. Register with the FAA by contacting the Flight Standards District Office nearest to your principal place of business prior to starting operations, b. Implement an FAA antidrug program no later than the date you start operations, and c. Meet the requirements of this appendix. 3. Intend to begin air traffic control operations (at an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military) a. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, b. Implement an FAA antidrug program no later than the date you start operations, and c. Meet the requirements of this appendix. C. If you are an individual or company that intends to provide safety-sensitive services by contract to a part 119 certificate holder with authority to operate under parts 121 and/or 135, an operation as defined in § 91.147 of this chapter, or an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military, use the chart below to determine what you must do if you opt to have your own antidrug program: If you . . . And you opt to conduct your own antidrug program, you must . . . a. Are a part 145 certificate holder i. Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, ii. Implement an FAA Antidrug Program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under parts 121 or 135, or operator as defined in § 91.147 of this chapter, and iii. Meet the requirements of this appendix as if you were an employer. b. Are a contractor i. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, ii. Implement an FAA Antidrug Program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under parts 121 or 135, an operator as defined in § 91.147 of this chapter, or an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military, and iii. Meet the requirements of this appendix as if you were an employer. D. 1. * * * e. Whether you have 50 or more safety-sensitive employees, or 49 or fewer safety-sensitive employees. (Part 119 certificate holders with authority to operate only under part 121 are not required to provide this information.) E. 1. * * * f. A signed statement indicating that: Your company will comply with this appendix, appendix J of this part, and 49 CFR part 40; and, if you are a contractor, you intend to provide safety-sensitive functions by contract to a part 119 certificate holder with authority to operate under part 121 and/or part 135, an operator as defined in § 91.147 of this chapter, or an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military. 2. Send this information in the form and manner prescribed by the Administrator, in duplicate to the appropriate address below: a. For § 91.147 operators: the Flight Standards District Office nearest to your principal place of business. b. For all others: The Federal Aviation Administration, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591. 3. Amend appendix J to part 121 as follows: A. In section I., amend paragraph D. to revise the definition of “Employer”; B. Amend section VII by revising paragraphs A, B, C, D.1.e., E.1.f., E.2., and E.3. The revisions read as follows: Appendix J to Part 121—Alcohol Misuse Prevention Program I. GENERAL D. *Definitions.* *Employer* means a part 119 certificate holder with authority to operate under parts 121 and/or 135; an operator as defined in § 91.147 of this chapter; or an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military. VII. HOW TO IMPLEMENT AN ALCOHOL MISUSE PREVENTION PROGRAM A. Each company must meet the requirements of this appendix. Use the following chart to determine whether your company must obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification or whether you must register with the FAA: If you are . . . You must . . . 1. A part 119 certificate holder with authority to operate under parts 121 and/or 135 Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your FAA Principal Operations Inspector. 2. An operator as defined in § 91.147 Register with the FAA by contacting the Flight Standards District Office nearest to your principal place of business. 3. An air traffic control facility not operated by the FAA or by or under contract to the U.S. Military Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591. 4. A part 145 certificate holder who has your own alcohol misuse prevention program Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your FAA Principal Maintenance Inspector or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, if you opt to conduct your own Alcohol Misuse Prevention Program. 5. A contractor who has your own alcohol misuse prevention program Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591 if you opt to conduct your own Alcohol Misuse Prevention Program. B. Use the following chart for implementing an Alcohol Misuse Prevention Program if you are applying for a part 119 certificate with authority to operate under parts 121 and/or 135, if you intend to begin operations as defined in § 91.147 of this chapter, or if you intend to begin air traffic control operations (not operated by the FAA or by or under contract to the U.S. Military). Use it to determine whether you need to have an Antidrug and Alcohol Misuse Prevention Program Operations Specification, or whether you need to register with the FAA. Your employees who perform safety-sensitive duties must be tested in accordance with this appendix. The chart follows: If you . . . You must . . . 1. Apply for a part 119 certificate with authority to operate under parts 121 and/or 135 a. Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification, b. Implement an FAA Alcohol Misuse Prevention Program no later than the date you start operations, and c. Meet the requirements of this appendix. 2. Intend to begin operations as defined in § 91.147 of this chapter a. Register with the FAA by contacting the Flight Standards District Office nearest to your principal place of business prior to starting operations, b. Implement an FAA Alcohol Misuse Prevention Program no later than the date you start operations, and c. Meet the requirements of this appendix. 3. Intend to begin air traffic control operations (at an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military) a. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, b. Implement an FAA antidrug program no later than the date you start operations, and c. Meet the requirements of this appendix. C. If you are an individual or a company that intends to provide safety-sensitive services by contract to a part 119 certificate holder with authority to operate under parts 121 and/or 135 or an operator as defined in § 91.147 of this chapter, use the chart below to determine what you must do if you opt to have your own Alcohol Misuse Prevention Program: If you . . . And you opt to conduct your own Alcohol Misuse Prevention Program, you must . . . a. Are a part 145 certificate holder i. Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, ii. Implement an FAA Alcohol Misuse Prevention Program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under parts 121 and/or 135, or operator as defined in § 91.147 of this chapter, and iii. Meet the requirements of this appendix as if you were an employer. b. Are a contractor i. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, ii. Implement an FAA Alcohol Misuse Prevention Program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under parts 121 and/or 135, or operator as defined in § 91.147 of this chapter, and iii. Meet the requirements of this appendix as if you were an employer. D. 1. * * * e. Whether you have 50 or more covered employees, or 49 or fewer covered employees. (Part 119 certificate holders with authority to operate only under part 121 are not required to provide this information.) E. 1. * * * f. A signed statement indicating that: Your company will comply with this appendix, appendix I of this part, and 49 CFR part 40; and, if you are a contractor, you intend to provide safety-sensitive functions by contract to a part 119 certificate holder with authority to operate under part 121 and/or 135, an operator as defined by § 91.147 of this chapter, or an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military. 2. Send this information in the form and manner prescribed by the Administrator, in duplicate to the appropriate address below: a. For § 91.147 operators: The Flight Standards District Office nearest to your principal place of business. b. For all others: The Federal Aviation Administration, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591. 3. Update the registration information as changes occur. Send the updates in duplicate to the address specified in paragraph 2. Issued in Washington, DC, on March 7, 2007. Rebecca B. MacPherson, Assistant Chief Counsel for Regulations. [FR Doc. E7-4583 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Part 552 [BOP-1107-F] RIN 1120-AB06 Suicide Prevention Program AGENCY: Bureau of Prisons, Justice. ACTION: Final rule. SUMMARY: In this document, the Bureau of Prisons (Bureau) revises its regulations on the suicide prevention program for clarity and to remove agency management procedures which do not need to be stated in regulations. We intend the revised regulations to provide for the health and safety of inmates. DATES: March 15, 2007. ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, HOLC Room 977, 320 First Street, NW., Washington, DC 20534. FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone
(202)207-2105. SUPPLEMENTARY INFORMATION: The Bureau is revising its regulations on the suicide prevention program (28 CFR part 552, subpart E). We published a proposed rule on November 13, 2000 (65 FR 67670). We received one comment. What change is the Bureau making? We are revising the regulations generally for clarity and to remove procedures relating to agency management. The revised regulations more clearly describe for the inmate how we identify and protect inmates at risk for suicide. Procedures relating to agency management are exempt from the rulemaking provisions of the Administrative Procedure Act (5 U.S.C. 553). Removing these procedures from the regulations allows us to speak more directly to inmates. Revised § 552.40 more precisely states the purpose of our suicide prevention program and summarizes how we place inmates in and remove them from the program. Former §§ 552.41 through 552.43 are combined in a new § 552.41 which details the specific procedures we use to identify, refer, assess, and treat potentially suicidal inmates. We combined provisions for the conditions of a suicide watch in former §§ 552.44, 552.46, and 552.48 in the new § 552.42. The revised regulations are more objective based. For example, the revised regulations require that rooms designated for housing an inmate on suicide watch must allow staff to maintain adequate control of the inmate without compromising the ability to observe and protect the inmate. Previously, the regulations relied upon a more prescriptive approach of describing the location of the room (“* * * a non-administrative detention/segregation cell ordinarily in the health services area”). This prescriptive approach does not take into account recent developments in correctional facility design and construction, and has become unnecessarily restrictive. Former §§ 552.45 and 552.49 addressed agency management procedures, and former § 552.47 affirms that a previously imposed sanction remains in effect for an inmate when that inmate is removed from a suicide watch. Because our regulations on inmate discipline sufficiently support that statement, we removed these three sections. Response to Comment We received one comment on our proposed rulemaking. The commenter had three main areas of concern, which we address below: *Section 552.40:* The commenter stated that “there should be a brief explanation of what a suicide watch is” in the rules. We present just such a brief explanation of “suicide watch” in § 552.42. In this section, we explain in detail the housing arrangements and conditions under which the suicidal inmate is constantly observed. Therefore, it is not necessary to define the term suicide watch in § 552.40. *Section 552.41:* The commenter recommended the use of a “buddy system” to prevent suicide, suggesting that highly-regarded inmates might be chosen to “look after” or “befriend” the suicidal inmate. The commenter also suggested that we have a “small team working together” so that the suicidal inmate would “get to know and associate and even depend on that team.” Each new inmate who enters a Bureau facility receives written material and an orientation that explains what to expect and how to get help from staff. Additionally, all new inmates receive a confidential medical and mental health screening by a medical professional to identify those who need assistance or have the potential for becoming suicidal. These inmates are immediately referred to a mental health professional for individual assessment and appropriate treatment. Therefore, an inmate “Buddy System” is not necessary. *Section 552.42:* Finally, the commenter stated that the “Warden should not have so much power.” Particularly, the commenter referred to § 552.42(b)(2), which states that “[o]nly the Warden may authorize the use of inmate observers.” The commenter suggests that inmates instead go through training to become suicide watch observers. In fact, the commenter's suggestion is our current practice. The Suicide Prevention Program Coordinator selects, trains, and evaluates inmate observers. A great responsibility rests with those assigned to observe the inmate and immediately report any attempt to do self-harm. For that reason, the decision to use Bureau staff or inmates is a critical decision which the Warden must make after input from the Suicide Prevention Program Coordinator. Elevating this decision to the Warden level ensures that all staff understand the importance of properly observing the inmate and providing appropriate care. For the reasons stated above, we do not change the final rule in light of the comment we received. Executive Order 12866 This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review”, section 1(b), Principles of Regulation. The Director, Bureau of Prisons has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget. Executive Order 13132 This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment. Regulatory Flexibility Act The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 28 CFR Part 552 Prisoners. Harley G. Lappin, Director, Bureau of Prisons. Under the rulemaking authority vested in the Attorney General in 5 U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we amend 28 CFR part 552, chapter V, subchapter C, as follows. SUBCHAPTER C—INSTITUTIONAL MANAGEMENT PART 552—CUSTODY 1. Revise the authority citation for 28 CFR part 552 to read as follows: Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984, as to offenses committed after that date), 5039; 28 U.S.C. 509, 510. 2. Revise subpart E to read as follows: Subpart E—Suicide Prevention Program Sec. 552.40 Purpose and scope. 552.41 Program procedures. 552.42 Suicide watch conditions. Subpart E—Suicide Prevention Program § 552.40 Purpose and scope. The Bureau of Prisons (Bureau) operates a suicide prevention program to assist staff in identifying and managing potentially suicidal inmates. When staff identify an inmate as being at risk for suicide, staff will place the inmate on suicide watch. Based upon clinical findings, staff will either terminate the suicide watch when the inmate is no longer at imminent risk for suicide or arrange for the inmate's transfer to a medical referral center or contract health care facility. § 552.41 Program procedures.
(a)*Program Coordinator.* Each institution must have a Program Coordinator for the institution's suicide prevention program.
(b)*Training.* The Program Coordinator is responsible for ensuring that appropriate training is available to staff and to inmates selected as inmate observers.
(c)*Identification of at risk inmates.*
(1)Medical staff are to screen a newly admitted inmate for signs that the inmate is at risk for suicide. Ordinarily, this screening is to take place within twenty-four hours of the inmate's admission to the institution.
(2)Staff (whether medical or non-medical) may make an identification at any time based upon the inmate's observed behavior.
(d)*Referral.* Staff who identify an inmate to be at risk for suicide will have the inmate placed on suicide watch.
(e)*Assessment.* A psychologist will clinically assess each inmate placed on suicide watch.
(f)*Intervention.* Upon completion of the clinical assessment, the Program Coordinator or designee will determine the appropriate intervention that best meets the needs of the inmate. § 552.42 Suicide watch conditions.
(a)*Housing.* Each institution must have one or more rooms designated specifically for housing an inmate on suicide watch. The designated room must allow staff to maintain adequate control of the inmate without compromising the ability to observe and protect the inmate.
(b)*Observation.*
(1)Staff or trained inmate observers operating in scheduled shifts are responsible for keeping the inmate under constant observation.
(2)Only the Warden may authorize the use of inmate observers.
(3)Inmate observers are considered to be on an institution work assignment when they are on their scheduled shift.
(c)*Suicide watch log.* Observers are to document significant observed behavior in a log book.
(d)*Termination.* Based upon clinical findings, the Program Coordinator or designee will:
(1)Remove the inmate from suicide watch when the inmate is no longer at imminent risk for suicide, or
(2)Arrange for the inmate's transfer to a medical referral center or contract health care facility. [FR Doc. E7-4684 Filed 3-14-07; 8:45 am] BILLING CODE 4410-05-P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Parts 4022 and 4044 Benefits Payable in Terminated Single-Employer Plans; Allocation of Assets in Single-Employer Plans; Interest Assumptions for Valuing and Paying Benefits AGENCY: Pension Benefit Guaranty Corporation. ACTION: Final rule. SUMMARY: The Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans prescribe interest assumptions for valuing and paying benefits under terminating single-employer plans. This final rule amends the regulations to adopt interest assumptions for plans with valuation dates in April 2007. Interest assumptions are also published on the PBGC's Web site ( *http://www.pbgc.gov* ). DATES: Effective April 1, 2007. FOR FURTHER INFORMATION CONTACT: Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.) SUPPLEMENTARY INFORMATION: The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Three sets of interest assumptions are prescribed:
(1)A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to part 4044),
(2)a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to part 4022), and
(3)a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to part 4022). This amendment
(1)Adds to Appendix B to part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during April 2007,
(2)adds to Appendix B to part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during April 2007, and
(3)adds to Appendix C to part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during April 2007. For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 4.99 percent for the first 20 years following the valuation date and 4.66 percent thereafter. These interest assumptions represent a decrease (from those in effect for March 2007) of 0.23 percent for the first 20 years following the valuation date and 0.23 percent for all years thereafter. The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 2.75 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent a decrease (from those in effect for March 2007) of 0.25 percent in the immediate annuity rate and are otherwise unchanged. For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022). The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible. Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during April 2007, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication. The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866. Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2). List of Subjects 29 CFR Part 4022 Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements. 29 CFR Part 4044 Employee benefit plans, Pension insurance, Pensions. In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows: PART 4022—BENEFITS PAYABLE IN TERMINATED SINGLE-EMPLOYER PLANS 1. The authority citation for part 4022 continues to read as follows: Authority: 29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344. 2. In appendix B to part 4022, Rate Set 162, as set forth below, is added to the table. Appendix B to Part 4022—Lump Sum Interest Rates For PBGC Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate (percent) Deferred annuities (percent) *i* <sup>1</sup> *i* <sup>2</sup> *i* <sup>3</sup> *n* <sup>1</sup> *n* <sup>2</sup> * * * * * * * 162 4-1-07 5-1-07 2.75 4.00 4.00 4.00 7 8 3. In appendix C to part 4022, Rate Set 162, as set forth below, is added to the table. Appendix C to Part 4022—Lump Sum Interest Rates For Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate (percent) Deferred annuities (percent) *i* <sup>1</sup> *i* <sup>2</sup> *i* <sup>3</sup> *n* <sup>1</sup> *n* <sup>2</sup> * * * * * * * 162 4-1-07 5-1-07 2.75 4.00 4.00 4.00 7 8 PART 4044—ALLOCATION OF ASSETS IN SINGLE-EMPLOYER PLANS 4. The authority citation for part 4044 continues to read as follows: Authority: 29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362. 5. In appendix B to part 4044, a new entry for April 2007, as set forth below, is added to the table. Appendix B to Part 4044—Interest Rates Used to Value Benefits For valuation dates occurring in the month— The values of *i* t are: *i* t for *t* = *i* t for *t* = *i* t for *t* = * * * * * * * April 2007 .0499 1-20 .0466 >20 N/A N/A Issued in Washington, DC, on this 8th day of March 2007. Vincent K. Snowbarger, Interim Director Pension Benefit Guaranty Corporation. [FR Doc. E7-4680 Filed 3-14-07; 8:45 am] BILLING CODE 7709-01-P DEPARTMENT OF THE INTERIOR Minerals Management Service 30 CFR Part 250 RIN 1010-AD24 Oil and Gas and Sulphur Operations in the Outer Continental Shelf—Update of New and Reaffirmed Documents Incorporated by Reference AGENCY: Minerals Management Service (MMS), Interior. ACTION: Final rule. SUMMARY: This final rule incorporates 33 new editions and 37 reaffirmed editions of documents previously incorporated by reference in regulations governing oil and gas and sulphur operations in the Outer Continental Shelf (OCS). The new and reaffirmed editions of these documents will ensure that lessees use the best and safest technologies available while operating in the OCS. The final rule also updates citations for documents that were incorporated by reference in recent final rules. DATES: *Effective Date:* April 16, 2007. The incorporation by reference of publications listed in the regulation is approved by the Director of the Federal Register as of April 16, 2007. FOR FURTHER INFORMATION CONTACT: Wilbon Rhome at
(703)787-1587. SUPPLEMENTARY INFORMATION: The MMS uses standards, specifications, and recommended practices developed by standard-setting organizations and the oil and gas industry as a means of establishing requirements for activities on the OCS. This practice, known as incorporation by reference, allows us to incorporate the provisions of technical standards into the regulations. The legal effect of incorporation by reference is that the material is treated as if the entire document were published in the **Federal Register** . This material, like any other properly issued regulation, then has the force and effect of law. We hold operators/lessees accountable for complying with the documents incorporated by reference in our regulations. We currently incorporate by reference 93 private sector consensus standards into the offshore operating regulations. The regulations at 1 CFR part 51 govern how we and other Federal agencies incorporate various documents by reference. Agencies may only incorporate a document by reference by publishing the document title and affirmation/reaffirmation date in the **Federal Register** . Agencies must also gain approval from the Director of the Federal Register for each publication incorporated by reference. Incorporation by reference of a document or publication is limited to the specific edition, supplement, or addendum cited in the regulations. Under 5 U.S.C. 553, MMS may update documents without an opportunity for public comment when we determine that the revisions to a document result in safety improvements, or represent new industry standard technology and do not impose undue cost or burden on the affected parties. Accordingly, this final rule incorporates the new editions of 33 documents and 37 reaffirmed documents previously incorporated by reference in regulations governing oil and gas and sulphur operations in the OCS. These new and reaffirmed documents will ensure that lessees use the best and safest technologies available while operating in the OCS. The MMS has reviewed these documents and determined the new editions must be incorporated into the regulations to ensure the use of the best and safest technologies. Our review shows that changes between the old and new editions result in safety improvements, or represent new industry standard technology and will not impose undue cost or burden on the offshore oil and gas industry. The old editions are not readily available to the affected parties because they are out of publication; therefore, we are amending our regulations to incorporate the updated editions according to the authority in 30 CFR 250.198(a)(2). We are also amending those sections of the regulations where the title of the document has changed. In this final rule, reaffirmed means an action taken by the API standards committee, normally within a 5-year timeframe, confirming that the information contained within the standard is still applicable and requires no change at this time. Additionally, the edition number and date of the standard does not change as a result of reaffirmation by the standards committee. Revised Editions The revised editions of the documents previously incorporated by reference are: Title of documents ANSI/AISC 360-05, Specification for Reinforced Steel Buildings, March 9, 2005. ANSI/ASME Boiler and Pressure Vessel Code, Section I, Rules for Construction of Power Boilers; including Appendices 2004 Edition; and July 1, 2005 Addenda, Rules for Construction of Power Boilers, by ASME Boiler and Pressure Vessel Committee Subcommittee on Power Boilers; and all Section I Interpretations Volume 55. ANSI/ASME Boiler and Pressure Vessel Code, Section IV, Rules for Construction of Heating Boilers; including Appendices 1, 2, 3, 5, 6, and Non-mandatory Appendices B, C, D, E, F, H, I, K, L, and M, and the Guide to Manufacturers Data Report Forms, 2004 Edition; July 1, 2005 Addenda, Rules for Construction of Heating Boilers, by ASME Boiler and Pressure Vessel Committee Subcommittee on Heating Boilers; and all Section IV Interpretations Volume 55. ANSI/ASME Boiler and Pressure Vessel Code, Section VIII, Rules for Construction of Pressure Vessels; Divisions 1 and 2, 2004 Edition; July 1, 2005 Addenda, Divisions 1 and 2, Rules for Construction of Pressure Vessels, by ASME Boiler and Pressure Vessel Committee Subcommittee on Pressure Vessels; and all Section VIII Interpretations Volumes 54 and 55. ANSI/ASME B 16.5-2003, Pipe Flanges and Flanged Fittings. ANSI/ASME B 31.8-2003, Gas Transmission and Distribution Piping Systems. API 510, Pressure Vessel Inspection Code: In-Service Inspection, Rating, Repair, and Alteration, Downstream Segment, Ninth Edition, June 2006, API Stock No. C51009. API MPMS, Chapter 3-Tank Gauging, Section 1A—Standard Practice for the Manual Gauging of Petroleum and Petroleum Products, Second Edition, August 2005, API Stock No. H301A02. API MPMS, Chapter 3-Tank Gauging, Section 1B—Standard Practice for Level Measurement of Liquid Hydrocarbons in Stationary Tanks by Automatic Tank Gauging, Second Edition, June 2001, API Stock No. H301B2. API MPMS, Chapter 4—Proving Systems, Section 1—Introduction, Third Edition, February 2005, API Stock No. H04013. API MPMS, Chapter 4—Proving Systems, Section 2—Displacement Provers, Third Edition, September 2003, API Stock No. H04023. API MPMS, Chapter 4—Proving Systems, Section 4—Tank Provers, Second Edition, May 1998, API Stock No. H04042. API MPMS, Chapter 4—Proving Systems, Section 5—Master-Meter Provers, Second Edition, May 2000, API Stock No. H04052. API MPMS, Chapter 5—Metering, Section 1—General Considerations for Measurement by Meters, Measurement Coordination Department, Fourth Edition, September 2005, API Stock No. H05014. API MPMS, Chapter 5—Metering, Section 2—Measurement of Liquid Hydrocarbons by Displacement Meters, Third Edition, September 2005, API Stock No. H05023. API MPMS Chapter 5—Metering, Section 3—Measurement of Liquid Hydrocarbons by Turbine Meters, Fifth Edition, September 2005, API Stock No. H05035. API MPMS, Chapter 5—Metering, Section 4—Accessory Equipment for Liquid Meters, Fourth Edition, September 2005, API Stock No. H05044. API MPMS, Chapter 5—Metering, Section 5—Fidelity and Security of Flow Measurement Pulsed-Data Transmission Systems, Second Edition, August 2005, API Stock No. H50502. API MPMS, Chapter 7—Temperature Determination, Measurement Coordination, First Edition, June 2001, API Stock No. H07001. API MPMS, Chapter 9—Density Determination, Section 1—Standard Test Method for Density, Relative Density (Specific Gravity), or API Gravity of Crude Petroleum and Liquid Petroleum Products by Hydrometer Method, Second Edition, December 2002; reaffirmed October 2005, API Stock No. H09012. API MPMS, Chapter 9—Density Determination, Section 2—Standard Test Method for Density or Relative Density of Light Hydrocarbons by Pressure Hydrometer, Second Edition, March 2003, API Stock No. H09022. API MPMS, Chapter 10—Sediment and Water, Section 1—Standard Test Method for Sediment in Crude Oils and Fuel Oils by the Extraction Method, Second Edition, October 2002, API Stock No. H10012. API MPMS, Chapter 10—Sediment and Water, Section 3—Standard Test Method for Water and Sediment in Crude Oil by the Centrifuge Method (Laboratory Procedure), Second Edition, May 2003, API Stock No. H10032. API MPMS, Chapter 10—Sediment and Water, Section 4—Determination of Water and/or Sediment in Crude Oil by the Centrifuge Method (Field Procedure), Third Edition, December 1999, API Stock No. H10043. API MPMS, Chapter 10—Sediment and Water, Section 9—Standard Test Method for Water in Crude Oils by Coulometric Karl Fischer Titration, Second Edition, December 2002; reaffirmed 2005, API Stock No. H10092. API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 3—Concentric, Square-Edged Orifice Meters, Part 2—Specification and Installation Requirements, Fourth Edition, April 2000; reaffirmed March 2006, API Stock No. H30351. API RP 2D, Recommended Practice for Operation and Maintenance of Offshore Cranes, Fifth Edition, June 2003, API Stock No. G02D05. API RP 2SK, Recommended Practice for Design and Analysis of Stationkeeping Systems for Floating Structures, Third Edition, October 2005, API Stock No. G2SK03. API RP 14B, Recommended Practice for Design, Installation, Repair and Operation of Subsurface Safety Valve Systems, Fifth Edition, October 2005, also available as ISO 10417: 2004, (Identical) Petroleum and natural gas industries—Subsurface safety valve systems—Design, installation, operation and redress, API Stock No. GX14B05. API Spec. Q1, Specification for Quality Programs for the Petroleum, Petrochemical and Natural Gas Industry, ANSI/API Specification Q1, Seventh Edition, June 15, 2003; also available as ISO/TS 29001, Effective Date: December 15, 2003, Proposed National Adoption, API Stock No. GQ1007. API Spec. 2C, Specification for Offshore Pedestal Mounted Cranes, Sixth Edition, March 2004, Effective Date: September 2004, API Stock No. G02C06. API Spec. 6A, Specification for Wellhead and Christmas Tree Equipment, ANSI/API Specification 6A, Nineteenth Edition, July 2004; also available as ISO 10423:2003, (Modified) Petroleum and natural gas industries—Drilling and production equipment—Wellhead and Christmas tree equipment, Effective Date: February 1, 2005; Errata 1, September 1, 2004, API Stock No. GX06A19. API Spec. 6D, Specification for Pipeline Valves, Twenty-second Edition, January 2002; also available as ISO 14313:1999, MOD, Petroleum and natural gas industries—Pipeline transportation systems—Pipeline valves, Effective Date: July 1, 2002, Proposed National Adoption, includes Annex F, March 1, 2005, API Stock No. G06D22. Reaffirmed Documents The reaffirmed documents previously incorporated by reference are: Title of documents ACI 357R-84, Guide for the Design and Construction of Fixed Offshore Concrete Structures, 1984; reapproved 1997. API MPMS, Chapter 2—Tank Calibration, Section 2A—Measurement and Calibration of Upright Cylindrical Tanks by the Manual Tank Strapping Method, First Edition, February 1995; reaffirmed March 2002, API Stock No. H022A1. API MPMS, Chapter 2—Tank Calibration, Section 2B—Calibration of Upright Cylindrical Tanks Using the Optical Reference Line Method, First Edition, March 1989; reaffirmed March 2002, API Stock No. H30023. API MPMS, Chapter 4—Proving Systems, Section 6—Pulse Interpolation, Second Edition, July 1999; reaffirmed 2003, API Stock No. H06042. API MPMS, Chapter 4—Proving Systems, Section 7—Field Standard Test Measures, Second Edition, December 1998; reaffirmed October 2003, API Stock No. H04072. API MPMS, Chapter 6—Metering Assemblies, Section 1—Lease Automatic Custody Transfer
(LACT)Systems, Second Edition, May 1991; reaffirmed March 2002, API Stock No. H30121. API MPMS, Chapter 6—Metering Assemblies, Section 6—Pipeline Metering Systems, Second Edition, May 1991; reaffirmed March 2002, API Stock No. H30126. API MPMS, Chapter 6—Metering Assemblies, Section 7—Metering Viscous Hydrocarbons, Second Edition, May 1991; reaffirmed March 2002, API Stock No. H30127. API MPMS, Chapter 8—Sampling, Section 1—Standard Practice for Manual Sampling of Petroleum and Petroleum Products, Third Edition, October 1995; reaffirmed March 2006, API Stock No. H30161. API MPMS, Chapter 8—Sampling, Section 2—Standard Practice for Automatic Sampling of Liquid Petroleum and Petroleum Products, Second Edition, October 1995; reaffirmed June 2005, API Stock No. H08022. API MPMS, Chapter 10—Sediment and Water, Section 2—Determination of Water in Crude Oil by the Distillation Method, First Edition, April 1981; reaffirmed 2005, API Stock No. H30202. API MPMS, Chapter 11.1—Volume Correction Factors, Volume 1, Table 5A—Generalized Crude Oils and JP-4 Correction of Observed API Gravity to API Gravity at 60 °F, and Table 6A—Generalized Crude Oils and JP-4 Correction of Volume to 60 °F Against API Gravity at 60 °F, API Standard 2540, First Edition, August 1980; reaffirmed March 1997, API Stock No. H27000. API MPMS, Chapter 11.2.2—Compressibility Factors for Hydrocarbons: 0.350-0.637 Relative Density (60 °F/60 °F) and −50 °F to 140 °F Metering Temperature, Second Edition, October 1986; reaffirmed December 2002, API Stock No. H27307. API MPMS, Chapter 11—Physical Properties Data, Addendum to Section 2, Part 2—Compressibility Factors for Hydrocarbons, Correlation of Vapor Pressure for Commercial Natural Gas Liquids, First Edition, December 1994; reaffirmed December 2002, API Stock No. H27308. API MPMS, Chapter 12—Calculation of Petroleum Quantities, Section 2—Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Part 1—Introduction, Second Edition, May 1995; reaffirmed March 2002, API Stock No. 852-12021. API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 3—Concentric, Square-Edged Orifice Meters, Part 1—General Equations and Uncertainty Guidelines, Third Edition, September 1990; reaffirmed January 2003, API Stock No. H30350. API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 3—Concentric, Square-Edged Orifice Meters, Part 3—Natural Gas Applications, Third Edition, August 1992; reaffirmed January 2003, API Stock No. H30353. API MPMS, Chapter 14.5—Calculation of Gross Heating Value, Relative Density and Compressibility Factor for Natural Gas Mixtures from Compositional Analysis, Second Edition, revised 1996; reaffirmed March 2002, API Stock No. H14052. API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 6—Continuous Density Measurement, Second Edition, April 1991; reaffirmed February 2006, API Stock No. H30346. API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 8—Liquefied Petroleum Gas Measurement, Second Edition, July 1997; reaffirmed March 2002, API Stock No. H14082. API MPMS, Chapter 20—Section 1—Allocation Measurement, First Edition, August 1993; reaffirmed October 2006, API Stock No. H30701. API MPMS, Chapter 21—Flow Measurement Using Electronic Metering Systems, Section 1—Electronic Gas Measurement, First Edition, August 1993; reaffirmed July 2005, API Stock No. H30730. API RP 2A-WSD, Recommended Practice for Planning, Designing and Constructing Fixed Offshore Platforms—Working Stress Design, Twenty-first Edition, December 2000; Errata and Supplement 1, December 2002; Errata and Supplement 2, October 2005, API Stock No. G2AWSD. API RP 14E, Recommended Practice for Design and Installation of Offshore Production Platform Piping Systems, Fifth Edition, October 1, 1991; reaffirmed June 2000, API Stock No. G07185. API RP 14G, Recommended Practice for Fire Prevention and Control on Open Type Offshore Production Platforms, Third Edition, December 1, 1993; reaffirmed June 2000, API Stock No. G07194. API RP 53, Recommended Practices for Blowout Prevention Equipment Systems for Drilling Wells, Third Edition, March 1997; reaffirmed September 2004, API Stock No. G53003. API RP 500, Recommended Practice for Classification of Locations for Electrical Installations at Petroleum Facilities Classified as Class I, Division 1 and Division 2, Second Edition, November 1997; reaffirmed November 2002, API Stock No. C50002. API RP 505, Recommended Practice for Classification of Locations for Electrical Installations at Petroleum Facilities Classified as Class I, Zone 0, Zone 1, and Zone 2, First Edition, November 1997; reaffirmed November 2002, API Stock No. C50501. API RP 2556, Recommended Practice for Correcting Gauge Tables for Incrustation, Second Edition, August 1993; reaffirmed November 2003, API Stock No. H25560. API Spec. 6AV1, Specification for Verification Test of Wellhead Surface Safety Valves and Underwater Safety Valves for Offshore Service, First Edition, February 1, 1996; reaffirmed January 2003, API Stock No. G06AV1. API Standard 2551, Measurement and Calibration of Horizontal Tanks, First Edition, 1965; reaffirmed March 2002, API Stock No. H25510. API Standard 2552, USA Standard Method for Measurement and Calibration of Spheres and Spheroids, first Edition, 1966; reaffirmed February 2006, API Stock No. H25520. API Standard 2555, Method for Liquid Calibration of Tanks, First Edition, September 1966; reaffirmed March 2002; API Stock No. H25550. AWS D1.1:2000, Structural Welding Code—Steel. AWS D3.6M:1999, Specification for Underwater Welding. NACE Standard MR0175-2003, Item No. 21302, Standard Material Requirements, Metals for Sulfide Stress Cracking and Stress Corrosion Cracking Resistance in Sour Oilfield Environments. NACE Standard RP0176-2003, Item No. 21018, Standard Recommended Practice, Corrosion Control of Steel Fixed Offshore Structures Associated with Petroleum Production. Withdrawn Documents Some documents were combined as follows: API MPMS Chapter 4, sections 2 and 3 were combined; API MPMS Chapter 7, sections 2 and 3 were combined; and API MPMS Chapters 11.2.1 and 11.2.3 were combined. MMS is withdrawing six documents and replacing them with three documents as follows: Title of documents withdrawn Title of replacing documents API MPMS, Chapter 4, Section 2, Conventional Pipe Provers, Third Edition, September 2003, API Stock No. H30082. API MPMS, Chapter 4, Section 3, Small Volume Provers, First Edition, July 1988, reaffirmed March 2002, API Stock No. H30083. API MPMS, Chapter 4—Proving Systems, Section 2—Displacement Provers, Third Edition, September 2003, API Stock No. H04023. API MPMS, Chapter 7, Temperature Determination, Section 2, Dynamic Temperature Determination, Second Edition, March 1995, API Stock No. H07022. API MPMS, Chapter 7, Section 3, Static Temperature Determination Using Portable Electronic Thermometers, First Edition, July 1985, reaffirmed May 1996, API Stock No. H30143. API MPMS, Chapter 7—Temperature Determination, Measurement Coordination, First Edition, June 2001, API Stock No. H07001. API MPMS, Chapter 11.2.1, Compressibility Factors for Hydrocarbons: 0-90 ° API Gravity Range, First Edition, August 1984; reaffirmed May 1996, API Stock No. H27300. API MPMS, Chapter 11.2.3, Water Calibration of Volumetric Provers, First Edition, August 1984; reaffirmed May 1996, API Stock No. H27310. MPMS Measurement Standards Chapter 11.1, Volume Correction Factors, Volume 1 * * * First Edition, August 1980; reaffirmed March 1997, API Stock No. H27000. The purpose of this final rule is to incorporate the revision of some documents previously incorporated by reference into MMS regulations, and to acknowledge the reaffirmation of other documents previously incorporated by reference into MMS regulations. Procedural Matters Regulatory Planning and Review (Executive Order (E.O.) 12866) This final rule is not a significant rule as determined by the Office of Management and Budget
(OMB)and is not subject to review under E.O. 12866.
(1)The final rule will not have an annual effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This final rule will not have any new requirements.
(2)The final rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency because it does not affect how lessees or operators interact with other agencies, nor does it affect how MMS will interact with other agencies.
(3)The final rule will not alter the budgetary effects or entitlements, grants, user fees, or loan programs, or the rights or obligations of their recipients. The changes in this final rule will not impose undue cost on the offshore oil and gas industry.
(4)The final rule will not raise novel legal or policy issues. Regulatory Flexibility Act
(RFA)The Department certifies that this final rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 *et seq.* ). The changes proposed in this final rule would affect lessees and operators of leases and pipeline right-of-way holders on the OCS. This could include about 130 active Federal oil and gas lessees. Small lessees that operate under this rule fall under the Small Business Administration's
(SBA)North American Industry Classification System (NAICS) codes 211111, Crude Petroleum and Natural Gas Extraction, and 213111, Drilling Oil and Gas Wells. For these NAICS code classifications, a small company is one with fewer than 500 employees. Based on these criteria, an estimated 70 percent of these companies are considered small. This final rule, therefore would affect a substantial number of small entities. The changes proposed in the rule will not have a significant economic effect on a substantial number of small entities because it will not impose undue cost or burden on the offshore oil and gas industry. Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small businesses. If you wish to comment on the actions of MMS, call 1-888-734-3247. You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the DOI. Small Business Regulatory Enforcement Fairness Act (SBREFA) This final rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). This final rule: a. Will not have an annual effect on the economy of $100 million or more. The only costs will be the purchase of the new document and minor revisions to some operating and maintenance procedures. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Leasing on the U.S. OCS is limited to residents of the U.S. or companies incorporated in the U.S. This final rule will not change that requirement. Unfunded Mandates Reform Act
(UMRA)This final rule will not impose an unfunded mandate on State, local, and tribal governments or the private sector of more than $100 million per year. The rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the UMRA (2 U.S.C. 1531 *et seq.* ) is not required. This is because the rule will not affect State, local, or tribal governments, and the effect on the private sector is small. Takings Implication Assessment (Executive Order 12630) This final rule is not a governmental action capable of interference with constitutionally protected property rights. Thus, MMS did not need to prepare a Takings Implication Assessment according to E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Federalism (Executive Order 13132) With respect to E.O. 13132, this final rule will not have federalism implications. This rule will not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this rule will not affect that role. Civil Justice Reform (Executive Order 12988) With respect to E.O. 12988, the Office of the Solicitor has determined that the final rule will not unduly burden the judicial system and will meet the requirements of sections 3(a) and 3(b)(2) of the Order. Paperwork Reduction Act
(PRA)of 1995 The Department of the Interior has determined that this regulation does not contain information collection requirements pursuant to PRA (44 U.S.C. 3501 *et seq.* ). The MMS will not be submitting an information collection request to OMB. National Environmental Policy Act
(NEPA)of 1969 This rule does not constitute a major Federal action significantly affecting the quality of the human environment. MMS has analyzed this rule under the criteria of the NEPA and 516 Departmental Manual 6, Appendix 10.4C(1). MMS completed a Categorical Exclusion Review for this action and concluded that “the rulemaking does not represent an exception to the established criteria for categorical exclusion; therefore, preparation of an environmental analysis or environmental impact statement will not be required.” Energy Supply, Distribution, or Use (Executive Order 13211) Executive Order 13211 requires the agency to prepare a Statement of Energy Effects when it takes a regulatory action that is identified as a significant energy action. This rule is not a significant energy action, and therefore will not require a Statement of Energy Effects, because it: a. Is not a significant regulatory action under E.O. 12866, b. Is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and c. Has not been designated by the Administrator of the Office of Information and Regulatory Affairs, OMB, as a significant energy action. Consultation with Indian Tribes (Executive Order 13175) Under the criteria in E.O. 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. There are no Indian or tribal lands on the OCS. List of Subjects in 30 CFR Part 250 Continental shelf, Environmental impact statements, Environmental protection, Government contracts, Incorporation by reference, Investigations, Oil and gas exploration, Penalties, Pipelines, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements. Dated: February 5, 2007. C. Stephen Allred, Assistant Secretary—Land and Minerals Management. For the reasons stated in the preamble, Minerals Management Service
(MMS)amends 30 CFR part 250 as follows: PART 250—OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER CONTINENTAL SHELF 1. The authority citation for Part 250 continues to read as follows: Authority: 43 U.S.C. 1331 *et seq.* , 31 U.S.C. 9701. 2. In § 250.108, revise paragraph
(c)to read as follows: § 250.108 What requirements must I follow for cranes and other material-handling equipment?
(c)If a fixed platform is installed after March 17, 2003, all cranes on the platform must meet the requirements of American Petroleum Institute Specification for Offshore Pedestal Mounted Cranes (API Spec 2C), incorporated by reference as specified in 30 CFR 250.198. 3. In § 250.198, revise the table in paragraph
(e)to read as follows: § 250.198 Documents incorporated by reference.
(e)* * * Title of documents Incorporated by reference at ACI Standard 318-95, Building Code Requirements for Reinforced Concrete (ACI 318-95) and Commentary (ACI 318R-95) § 250.901(a)(1). ACI 357R-84, Guide for the Design and Construction of Fixed Offshore Concrete Structures, 1984; reapproved 1997 § 250.901(a)(2). ANSI/AISC 360-05, Specification for Structural Steel Buildings, March 9, 2005 § 250.901(a)(3). ANSI/ASME Boiler and Pressure Vessel Code, Section I, Rules for Construction of Power Boilers; including Appendices 2004 Edition; and July 1, 2005 Addenda, Rules for Construction of Power Boilers, by ASME Boiler and Pressure Vessel Committee Subcommittee on Power Boilers; and all Section I Interpretations Volume 55 § 250.803(b)(1), (b)(1)(i); § 250.1629(b)(1), (b)(1)(i). ANSI/ASME Boiler and Pressure Vessel Code, Section IV, Rules for Construction of Heating Boilers; including Appendices 1, 2, 3, 5, 6, and Non-mandatory Appendices B, C, D, E, F, H, I, K, L, and M, and the Guide to Manufacturers Data Report Forms, 2004 Edition; July 1, 2005 Addenda, Rules for Construction of Heating Boilers, by ASME Boiler and Pressure Vessel Committee Subcommittee on Heating Boilers; and all Section IV Interpretations Volume 55 § 250.803(b)(1), (b)(1)(i); § 250.1629(b)(1), (b)(1)(i). ANSI/ASME Boiler and Pressure Vessel Code, Section VIII, Rules for Construction of Pressure Vessels; Divisions 1 and 2, 2004 Edition; July 1, 2005 Addenda, Divisions 1 and 2, Rules for Construction of Pressure Vessels, by ASME Boiler and Pressure Vessel Committee Subcommittee on Pressure Vessels; and all Section VIII Interpretations Volumes 54 and 55 § 250.803(b)(1), (b)(1)(i); § 250.1629(b)(1), (b)(1)(i). ANSI/ASME B 16.5-2003, Pipe Flanges and Flanged Fittings § 250.1002(b)(2). ANSI/ASME B 31.8-2003, Gas Transmission and Distribution Piping Systems § 250.1002(a). ANSI/ASME SPPE-1-1994 and SPPE-1d-1996 Addenda, Quality Assurance and Certification of Safety and Pollution Prevention Equipment Used in Offshore Oil and Gas Operations § 250.806(a)(2)(i). ANSI Z88.2-1992, American National Standard for Respiratory Protection § 250.490(g)(4)(iv), (j)(13)(ii). API 510, Pressure Vessel Inspection Code: In-Service Inspection, Rating, Repair, and Alteration, Downstream Segment, Ninth Edition, June 2006, API Stock No. C51009 § 250.803(b)(1); § 250.1629(b)(1). API MPMS, Chapter 1—Vocabulary, Second Edition, July 1994, API Stock No. H01002 § 250.1201. API MPMS, Chapter 2—Tank Calibration, Section 2A—Measurement and Calibration of Upright Cylindrical Tanks by the Manual Tank Strapping Method, First Edition, February 1995; reaffirmed March 2002, API Stock No. H022A1 § 250.1202(l)(4). API MPMS, Chapter 2—Tank Calibration, Section 2B—Calibration of Upright Cylindrical Tanks Using the Optical Reference Line Method, First Edition, March 1989; reaffirmed March 2002, API Stock No. H30023 § 250.1202(l)(4). API MPMS, Chapter 3—Tank Gauging, Section 1A—Standard Practice for the Manual Gauging of Petroleum and Petroleum Products, Second Edition, August 2005, API Stock No. H301A02 § 250.1202(l)(4). API MPMS, Chapter 3—Tank Gauging, Section 1B—Standard Practice for Level Measurement of Liquid Hydrocarbons in Stationary Tanks by Automatic Tank Gauging, Second Edition, June 2001, API Stock No. H301B2 § 250.1202(l)(4). API MPMS, Chapter 4—Proving Systems, Section 1—Introduction, Third Edition, February 2005, API Stock No. H04013 § 250.1202(a)(3), (f)(1). API MPMS, Chapter 4—Proving Systems, Section 2—Displacement Provers, Third Edition, September 2003, API Stock No. H04023 § 250.1202(a)(3), (f)(1). API MPMS, Chapter 4—Proving Systems, Section 4—Tank Provers, Second Edition, May 1998, API Stock No. H04042 § 250.1202(a)(3), (f)(1). API MPMS, Chapter 4—Proving Systems, Section 5—Master-Meter Provers, Second Edition, May 2000, API Stock No. H04052 § 250.1202(a)(3), (f)(1). API MPMS, Chapter 4—Proving Systems, Section 6—Pulse Interpolation, Second Edition, July 1999; reaffirmed 2003, API Stock No. H06042 § 250.1202(a)(3), (f)(1). API MPMS, Chapter 4—Proving Systems, Section 7—Field Standard Test Measures, Second Edition, December 1998; reaffirmed 2003, API Stock No. H04072 § 250.1202(a)(3), (f)(1). API MPMS, Chapter 5—Metering, Section 1—General Considerations for Measurement by Meters, Measurement Coordination Department, Fourth Edition, September 2005, API Stock No. H05014 § 250.1202(a)(3). API MPMS, Chapter 5—Metering, Section 2—Measurement of Liquid Hydrocarbons by Displacement Meters, Third Edition, September 2005, API Stock No. H05023 § 250.1202(a)(3). API MPMS Chapter 5—Metering, Section 3—Measurement of Liquid Hydrocarbons by Turbine Meters, Fifth Edition, September 2005, API Stock No. H05035 § 250.1202(a)(3). API MPMS, Chapter 5—Metering, Section 4—Accessory Equipment for Liquid Meters, Fourth Edition, September 2005, API Stock No. H05044 § 250.1202(a)(3). API MPMS, Chapter 5—Metering, Section 5—Fidelity and Security of Flow Measurement Pulsed-Data Transmission Systems, Second Edition, August 2005, API Stock No. H50502 § 250.1202(a)(3). API MPMS, Chapter 6—Metering Assemblies, Section 1—Lease Automatic Custody Transfer
(LACT)Systems, Second Edition, May 1991; reaffirmed March 2002, API Stock No. H30121 § 250.1202(a)(3). API MPMS, Chapter 6—Metering Assemblies, Section 6—Pipeline Metering Systems, Second Edition, May 1991; reaffirmed March 2002, API Stock No. H30126 § 250.1202(a)(3). API MPMS, Chapter 6—Metering Assemblies, Section 7—Metering Viscous Hydrocarbons, Second Edition, May 1991; reaffirmed March 2002, API Stock No. H30127 § 250.1202(a)(3). API MPMS, Chapter 7—Temperature Determination, Measurement Coordination, First Edition, June 2001, API Stock No. H07001 § 250.1202(a)(3), (l)(4). API MPMS, Chapter 8—Sampling, Section 1—Standard Practice for Manual Sampling of Petroleum and Petroleum Products, Third Edition, October 1995; reaffirmed March 2006, API Stock No. H30161 § 250.1202(b)(4)(i), (l)(4). API MPMS, Chapter 8—Sampling, Section 2—Standard Practice for Automatic Sampling of Liquid Petroleum and Petroleum Products, Second Edition, October 1995; reaffirmed June 2005, API Stock No. H08022 § 250.1202(a)(3), (l)(4). API MPMS, Chapter 9—Density Determination, Section 1—Standard Test Method for Density, Relative Density (Specific Gravity), or API Gravity of Crude Petroleum and Liquid Petroleum Products by Hydrometer Method, Second Edition, December 2002; reaffirmed October 2005, API Stock No. H09012 § 250.1202(a)(3), (l)(4). API MPMS, Chapter 9—Density Determination, Section 2—Standard Test Method for Density or Relative Density of Light Hydrocarbons by Pressure Hydrometer, Second Edition, March 2003, API Stock No. H09022 § 250.1202(a)(3), (l)(4). API MPMS, Chapter 10—Sediment and Water, Section 1—Standard Test Method for Sediment in Crude Oils and Fuel Oils by the Extraction Method, Second Edition, October 2002, API Stock No. H10012 § 250.1202(a)(3), (l)(4). API MPMS, Chapter 10—Sediment and Water, Section 2—Determination of Water in Crude Oil by Distillation Method, First Edition, April 1981; reaffirmed 2005, API Stock No. H30202 § 250.1202(a)(3), (l)(4). API MPMS, Chapter 10—Sediment and Water, Section 3—Standard Test Method for Water and Sediment in Crude Oil by the Centrifuge Method (Laboratory Procedure), Second Edition, May 2003, API Stock No. H10032 § 250.1202(a)(3), (l)(4). API MPMS, Chapter 10—Sediment and Water, Section 4—Determination of Water and/or Sediment in Crude Oil by the Centrifuge Method (Field Procedure), Third Edition, December 1999, API Stock No. H10043 § 250.1202(a)(3), (l)(4). API MPMS, Chapter 10—Sediment and Water, Section 9—Standard Test Method for Water in Crude Oils by Coulometric Karl Fischer Titration, Second Edition, December 2002; reaffirmed 2005, API Stock No. H10092 § 250.1202(a)(3), (l)(4). API MPMS, Chapter 11.1—Volume Correction Factors, Volume 1, Table 5A—Generalized Crude Oils and JP-4 Correction of Observed API Gravity to API Gravity at 60°F, and Table 6A—Generalized Crude Oils and JP-4 Correction of Volume to 60°F Against API Gravity at 60°F, API Standard 2540, First Edition, August 1980; reaffirmed March 1997, API Stock No. H27000 § 250.1202(a)(3), (g)(3), (l)(4). API MPMS, Chapter 11.2.2—Compressibility Factors for Hydrocarbons: 0.350-0.637 Relative Density (60°F/60°F) and −50°F to 140°F Metering Temperature, Second Edition, October 1986; reaffirmed December 2002, API Stock No. H27307 § 250.1202(a)(3), (g)(4). API MPMS, Chapter 11—Physical Properties Data, Addendum to Section 2, Part 2—Compressibility Factors for Hydrocarbons, Correlation of Vapor Pressure for Commercial Natural Gas Liquids, First Edition, December 1994; reaffirmed December 2002, API Stock No. H27308 § 250.1202(a)(3). API MPMS, Chapter 12—Calculation of Petroleum Quantities, Section 2—Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Part 1—Introduction, Second Edition, May 1995; reaffirmed March 2002, API Stock No. 852-12021 § 250.1202(a)(3), (g)(1), (g)(2). API MPMS, Chapter 12—Calculation of Petroleum Quantities, Section 2—Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Part 2—Measurement Tickets, Third Edition, June 2003, API Stock No. H12223 § 250.1202(a)(3), (g)(1), (g)(2) API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 3—Concentric, Square-Edged Orifice Meters, Part 1—General Equations and Uncertainty Guidelines, Third Edition, September 1990; reaffirmed January 2003, API Stock No. H30350 § 250.1203(b)(2). API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 3—Concentric, Square-Edged Orifice Meters, Part 2—Specification and Installation Requirements, Fourth Edition, April 2000; reaffirmed March 2006, API Stock No. H30351 § 250.1203(b)(2). API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 3—Concentric, Square-Edged Orifice Meters, Part 3—Natural Gas Applications, Third Edition, August 1992; reaffirmed January 2003, API Stock No. H30353 § 250.1203(b)(2). API MPMS, Chapter 14.5—Calculation of Gross Heating Value, Relative Density and Compressibility Factor for Natural Gas Mixtures from Compositional Analysis, Second Edition, revised 1996; reaffirmed March 2002, API Stock No. H14052 § 250.1203(b)(2). API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 6—Continuous Density Measurement, Second Edition, April 1991; reaffirmed February 2006, API Stock No. H30346 § 250.1203(b)(2). API MPMS, Chapter 14—Natural Gas Fluids Measurement, Section 8—Liquefied Petroleum Gas Measurement, Second Edition, July 1997; reaffirmed March 2002, API Stock No. H14082 § 250.1203(b)(2). API MPMS, Chapter 20—Section 1—Allocation Measurement, First Edition, August 1993; reaffirmed October 2006, API Stock No. H30701 § 250.1202(k)(1). API MPMS, Chapter 21—Flow Measurement Using Electronic Metering Systems, Section 1—Electronic Gas Measurement, First Edition, August 1993; reaffirmed July 2005, API Stock No. H30730 § 250.1203(b)(4). API RP 2A-WSD, Recommended Practice for Planning, Designing and Constructing Fixed Offshore Platforms—Working Stress Design, Twenty-first Edition, December 2000; Errata and Supplement 1, December 2002; Errata and Supplement 2, October 2005, API Stock No. G2AWSD § 250.901(a)(4); § 250.908(a); § 250.920(a), (b), (c), (e). API RP 2D, Recommended Practice for Operation and Maintenance of Offshore Cranes, Fifth Edition, June 2003, API Stock No. G02D05 § 250.108(a). API RP 2FPS, Recommended Practice for Planning, Designing, and Constructing Floating Production Systems, First Edition, March 2001, API Stock No. G2FPS1 § 250.901(a)(5). API RP 2RD, Recommended Practice for Design of Risers for Floating Production Systems
(FPSs)and Tension-Leg Platforms (TLPs), First Edition, June 1998; reaffirmed May 2006, API Stock No. G02RD1 § 250.800(b)(2); § 250.901(a)(6); § 250.1002(b)(5). API RP 2SK, Recommended Practice for Design and Analysis of Stationkeeping Systems for Floating Structures, Third Edition, October 2005, API Stock No. G2SK03 § 250.800(b)(3); § 250.901(a)(7). API RP 2SM, Recommended Practice for Design, Manufacture, Installation, and Maintenance of Synthetic Fiber Ropes for Offshore Mooring, First Edition, March 2001, API Stock No. G02SM1 § 250.901(a)(8). API RP 2T, Recommended Practice for Planning, Designing, and Constructing Tension Leg Platforms, Second Edition, August 1997, API Stock No. G02T02 § 250.901(a)(9). API RP 14B, Recommended Practice for Design, Installation, Repair and Operation of Subsurface Safety Valve Systems, Fifth Edition, October 2005, also available as ISO 10417: 2004, (Identical) Petroleum and natural gas industries—Subsurface safety valve systems—Design, installation, operation and redress, API Stock No. GX14B05 § 250.801(e)(4); § 250.804(a)(1)(i). API RP 14C, Recommended Practice for Analysis, Design, Installation, and Testing of Basic Surface Safety Systems for Offshore Production Platforms, Seventh Edition, March 2001, API Stock No. C14C07 § 250.125(a); § 250.292(j); § 250.802(b), (e)(2); § 250.803(a), (b)(2)(i), (b)(4), (b)(5)(i), (b)(7), (b)(9)(v), (c)(2); § 250.804(a), (a)(6); § 250.1002(d); § 250.1004(b)(9); § 250.1628(c), (d)(2); § 250.1629(b)(2), (b)(4)(v); § 250.1630(a). API RP 14E, Recommended Practice for Design and Installation of Offshore Production Platform Piping Systems, Fifth Edition, October 1, 1991; reaffirmed June 2000, API Stock No. G07185 § 250.802(e)(3); § 250.1628(b)(2), (d)(3). API RP 14F, Recommended Practice for Design and Installation of Electrical Systems for Fixed and Floating Offshore Petroleum Facilities for Unclassified and Class I, Division 1 and Division 2 Locations, Fourth Edition, June 1999, API Stock No. G14F04 § 250.114(c); § 250.803(b)(9)(v); § 250.1629(b)(4)(v). API RP 14FZ, Recommended Practice for Design and Installation of Electrical Systems for Fixed and Floating Offshore Petroleum Facilities for Unclassified and Class I, Zone 0, Zone 1 and Zone 2 Locations, First Edition, September 2001, API Stock No. G14FZ1 § 250.114(c); § 250.803(b)(9)(v); § 250.1629(b)(4)(v). API RP 14G, Recommended Practice for Fire Prevention and Control on Open Type Offshore Production Platforms, Third Edition, December 1, 1993; reaffirmed June 2000, API Stock No. G07194 § 250.803(b)(8), (b)(9)(v); § 250.1629(b)(3), (b)(4)(v). API RP 14H, Recommended Practice for Installation, Maintenance, and Repair of Surface Safety Valves and Underwater Safety Valves Offshore, Fourth Edition, July 1, 1994, API Stock No. G14H04 § 250.802(d); § 250.804(a)(5). API RP 14J, Recommended Practice for Design and Hazards Analysis for Offshore Production Facilities, Second Edition, May 2001, API Stock No. G14J02 § 250.800(b)(1); § 250.901(a)(10). API RP 53, Recommended Practices for Blowout Prevention Equipment Systems for Drilling Wells, Third Edition, March 1997; reaffirmed September 2004, API Stock No. G53003 § 250.442(c); § 250.446(a). API RP 65, Recommended Practice for Cementing Shallow Water Flow Zones in Deep Water Wells, First Edition, September 2002, API Stock No. G56001 § 250.198; § 250.415(e). API RP 500, Recommended Practice for Classification of Locations for Electrical Installations at Petroleum Facilities Classified as Class I, Division 1 and Division 2, Second Edition, November 1997; reaffirmed November 2002, API Stock No. C50002 § 250.114(a); § 250.459; § 250.802(e)(4)(i); § 250.803(b)(9)(i); § 250.1628(b)(3), (d)(4)(i); § 250.1629(b)(4)(i). API RP 505, Recommended Practice for Classification of Locations for Electrical Installations at Petroleum Facilities Classified as Class I, Zone 0, Zone 1, and Zone 2, First Edition, November 1997; reaffirmed November 2002, API Stock No. C50501 § 250.114(a); § 250.459; § 250.802(e)(4)(i); § 250.803(b)(9)(i); § 250.1628(b)(3), (d)(4)(i); § 250.1629(b)(4)(i). API RP 2556, Recommended Practice for Correcting Gauge Tables for Incrustation, Second Edition, August 1993; reaffirmed November 2003, API Stock No. H25560 § 250.1202(l)(4). API Spec. Q1, Specification for Quality Programs for the Petroleum, Petrochemical and Natural Gas Industry, ANSI/API Specification Q1, Seventh Edition, June 15, 2003; also available as ISO/TS 29001, Effective Date: December 15, 2003, API Stock No. GQ1007 § 250.806(a)(2)(ii). API Spec. 2C, Specification for Offshore Pedestal Mounted Cranes, Sixth Edition, March 2004, Effective Date: September 2004, API Stock No. G02C06 § 250.108(c), (d). API Spec. 6A, Specification for Wellhead and Christmas Tree Equipment, ANSI/API Specification 6A, Nineteenth Edition, July 2004; also available as ISO 10423:2003, (Modified) Petroleum and natural gas industries—Drilling and production equipment—Wellhead and Christmas tree equipment, Effective Date: February 1, 2005; Errata 1, September 1, 2004, API Stock No. GX06A19 § 250.806(a)(3); § 250.1002 (b)(1), (b)(2). API Spec. 6AV1, Specification for Verification Test of Wellhead Surface Safety Valves and Underwater Safety Valves for Offshore Service, First Edition, February 1, 1996; reaffirmed January 2003, API Stock No. G06AV1 § 250.806(a)(3). API Spec. 6D, Specification for Pipeline Valves, Twenty-second Edition, January 2002; also available as ISO 14313:1999, MOD, Petroleum and natural gas industries—Pipeline transportation systems—Pipeline valves, Effective Date: July 1, 2002, Proposed National Adoption, includes Annex F, March 1, 2005, API Stock No. G06D22 § 250.1002(b)(1). API Spec. 14A, Specification for Subsurface Safety Valve Equipment, Tenth Edition, November 2000; also available as ISO 10432:1999, Petroleum and natural gas industries—Downhole equipment—Subsurface safety valve equipment, Effective Date: May 15, 2001, API Stock No. GG14A10 § 250.806(a)(3). API Spec. 17J, Specification for Unbonded Flexible Pipe, Second Edition, November 1999; Errata dated May 25, 2001; Addendum 1, June 2003, Effective Date: December 2002, API Stock No. G17J02 § 250.803(b)(2)(iii); § 250.1002(b)(4); § 250.1007(a)(4). API Standard 2551, Measurement and Calibration of Horizontal Tanks, First Edition, 1965; reaffirmed March 2002, API Stock No. H25510 § 250.1202(l)(4). API Standard 2552, USA Standard Method for Measurement and Calibration of Spheres and Spheroids, First Edition, 1966; reaffirmed February 2006, API Stock No. H25520 § 250.1202(l)(4). API Standard 2555, Method for Liquid Calibration of Tanks, First Edition, September 1966; reaffirmed March 2002; API Stock No. H25550 § 250.1202(l)(4). ASTM Standard C 33-99a, Standard Specification for Concrete Aggregates § 250.901(a)(11). ASTM Standard C 94/C 94M-99, Standard Specification for Ready-Mixed Concrete § 250.901(a)(12). ASTM Standard C 150-99, Standard Specification for Portland Cement § 250.901(a)(13). ASTM Standard C 330-99, Standard Specification for Lightweight Aggregates for Structural Concrete § 250.901(a)(14). ASTM Standard C 595-98, Standard Specification for Blended Hydraulic Cements § 250.901(a)(15). AWS D1.1:2000, Structural Welding Code—Steel § 250.901(a)(16). AWS D1.4-98, Structural Welding Code—Reinforcing Steel § 250.901(a)(17). AWS D3.6M:1999, Specification for Underwater Welding § 250.901(a)(18). NACE Standard MR0175-2003, Item No. 21302, Standard Material Requirements, Metals for Sulfide Stress Cracking and Stress Corrosion Cracking Resistance in Sour Oilfield Environments § 250.901(a)(19), § 250.490(p)(2). NACE Standard RP0176-2003, Item No. 21018, Standard Recommended Practice, Corrosion Control of Steel Fixed Offshore Structures Associated with Petroleum Production § 250.901(a)(20). 4. Section 250.490(p)(2) is revised to read as follows: § 250.490 Hydrogen sulfide.
(p)* * *
(2)Use BOP system components, wellhead, pressure-control equipment, and related equipment exposed to H 2 S-bearing fluids in conformance with NACE Standard MR0175-03 (incorporated by reference as specified in § 250.198). 5. In § 250.801, revise paragraph (e)(4) to read as follows: § 250.801 Subsurface safety devices.
(e)* * *
(4)All SSSV's must be inspected, installed, maintained, and tested in accordance with American Petroleum Institute Recommended Practice 14B, Recommended Practice for Design, Installation, Repair, and Operation of Subsurface Safety Valve Systems (incorporated by reference as specified in § 250.198). 6. In § 250.802, paragraph (d), the first sentence is revised to read as follows: § 250.802 Design, installation, and operation of surface production-safety systems.
(d)*Use of SSVs and USVs.* All SSVs and USVs must be inspected, installed, maintained, and tested in accordance with API RP 14H, Recommended Practice for Installation, Maintenance, and Repair of Surface Safety Valves and Underwater Safety Valves Offshore (incorporated by reference as specified in § 250.198). * * * 7. In § 250.803, revise the last sentence in paragraph (b)(1), to read as follows: § 250.803 Additional production system requirements.
(b)* * *
(1)* * * Pressure and fired vessels must have maintenance inspection, rating, repair, and alteration performed in accordance with the applicable provisions of API Pressure Vessel Inspection Code: In-Service Inspection, Rating, Repair, and Alteration, API 510 (except Sections 6.5 and 8.5) (incorporated by reference as specified in § 250.198). 8. In § 250.806, revise paragraph (a)(2)(ii) to read as follows: § 250.806 Safety and pollution prevention equipment quality assurance requirements.
(a)* * *
(2)* * *
(ii)API Spec Q1, Specification for Quality Programs for the Petroleum, Petrochemical and Natural Gas Industry (incorporated by reference as specified in § 250.198). 9. In § 250.901, revise paragraph (a)(3) to read as follows: § 250.901 What industry standard must your platform meet?
(a)* * *
(3)ANSI/AISC 360-05, Specification for Structural Steel Buildings, (incorporated by reference as specified in § 250.198); 10. In § 250.1002, paragraph
(a)is amended by revising the first sentence following the formula and (b)(2) is amended by revising the first sentence to read as follows: § 250.1002 Design requirements for DOI pipelines.
(a)* * * For limitations see section 841.121 of American National Standards Institute
(ANSI)B31.8 (incorporated by reference as specified in 30 CFR 250.198) where—* * * (b)(1)* * *
(2)Pipeline flanges and flange accessories shall meet the minimum design requirements of ANSI B16.5, API Spec 6A, or the equivalent (incorporated by reference as specified in 30 CFR 250.198). * * * 11. In § 250.1629, revise the last sentence in paragraph
(b)to read as follows: § 250.1629 Additional production and fuel gas system requirements.
(b)* * * Pressure and fired vessels must have maintenance inspection, rating, repair, and alteration performed in accordance with the applicable provisions of the American Petroleum Institute's Pressure Vessel Inspection Code: In-Service Inspection, Rating, Repair, and Alteration, API 510 (except §§ 6.5 and 8.5) (incorporated by reference as specified in § 250.198). [FR Doc. E7-4440 Filed 3-14-07; 8:45 am] BILLING CODE 4310-MR-P DEPARTMENT OF COMMERCE National Telecommunications and Information Administration 47 CFR Part 301 [Docket Number: 0612242667—7051—01] RIN 0660-AA16 Rules to Implement and Administer a Coupon Program for Digital-to-Analog Converter Boxes AGENCY: National Telecommunications and Information Administration, Commerce. ACTION: Final rule. SUMMARY: In this document, the National Telecommunications and Information Administration
(NTIA)adopts regulations to implement and administer a coupon program for digital-to-analog converter boxes. This rule implements provisions of section 3005 of Public Law 109-171, known as the Digital Television Transition and Public Safety Act of 2005. This action amends 47 CFR Chapter III by adding part 301. DATES: These rules become effective April 16, 2007. ADDRESSES: A complete set of comments filed in response to the Notice of Proposed Rulemaking is available for public inspection at the Office of the Chief Counsel, National Telecommunications and Information Administration, Room 4713, U.S. Department of Commerce, 1401 Constitution Avenue, N.W., Washington, D.C. The responses can also be viewed electronically at http://www.ntia.doc.gov. FOR FURTHER INFORMATION CONTACT: Milton Brown, NTIA
(202)482-1816. SUPPLEMENTARY INFORMATION: TABLE OF CONTENTS Heading Paragraph No. I. Background 001 II. Discussion 004 A. Eligible U.S. Households 004 B. Coupon Value and Use Restrictions 012 C. Application Process 019 D. Coupon Expiration 023 E. Coupon-Eligible Converter Box 026 F. Manufacturer Certification 096 G. Retailer Participation 103 H. Consumer Education 125 III. Procedural Matters I. Background 1. The Digital Television Transition and Public Safety Act of 2005 (the Act), among other things, directs the Federal Communications Commission
(FCC)to require full-power television stations to cease analog broadcasting and to broadcast solely digital transmissions after February 17, 2009. 1 The returned analog television spectrum is to be auctioned, and the Act directs the FCC to deposit receipts from that auction into a new Treasury Fund to be known as the Digital Television Transition and Public Safety Fund (the Fund). 2 1 *See* Title III of the Deficit Reduction Act of 2005, Pub. L. 109-171, 120 Stat. 4, 21 (Feb. 8, 2006) (the Act). Section 3002(a) of the Act amends Section 309(j)(14)(A) of the Communications Act of 1934 so that analog full-power television licenses will terminate on February 17, 2009. Section 3002(b) of the Act directs the FCC to terminate analog television licenses for full-power stations by February 18, 2009. 2 Section 3004 of the Act. 2. Recognizing that consumers may wish to continue receiving broadcast programming over the air using analog-only televisions not connected to cable or satellite service, the Act authorizes NTIA to create a digital-to-analog converter box assistance program (Coupon Program). Specifically, Section 3005 of the Act directs NTIA to implement and administer a program through which eligible U.S. households may obtain via the United States Postal Service a maximum of two coupons of $40 each to be applied towards the purchase of a Coupon-Eligible Converter Box (CECB). 3 To implement the Coupon Program, the Act authorizes NTIA to use up to $990 million from the Fund for the program, including up to $100 million for program administration (Initial Funds). 4 A contingent level of $510 million in additional funds is authorized upon a 60-day notice and certification to the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate that the initial funding level is insufficient to fulfill coupon requests for eligible U.S. households (Contingent Funds). 5 NTIA is, therefore, authorized to expend up to a total of $1.5 billion for the program, including up to $160 million for administration. Assuming the entire administrative amount is taken into account, $1.34 billion would be available for distributing up to 33.5 million coupons. This section also authorizes NTIA, beginning on October 1, 2006, to borrow not more than $1.5 billion from the Treasury to implement the program. NTIA must reimburse the Treasury for this amount, without interest, as recovered analog television spectrum auction proceeds are deposited into the Fund. 6 3 *See* subsections 3005(c)(1)(A), (c)(4) of the Act. 4 NTIA intends to enter into a contract for services to administer the Coupon Program through a separate program acquisition plan. The contractor will be responsible for establishing and managing the systems and processes through which some of the final rules may be applied. In this document, “NTIA” should be understood to be either NTIA or its contractor. 5 Section 3005(c)(3) of the Act. 6 Section 3005(b) of the Act. 3. On July 25, 2006, NTIA published a Notice of Proposed Rulemaking
(NPRM)and Request for Comment in the **Federal Register** on ways to implement and administer such a program pursuant to the Act. 7 NTIA also held meetings on November 14 and 15, 2006, to afford interested parties the opportunity to clarify comments submitted in response to the NPRM. 8 7 *Request for Comment and Notice of Proposed Rules to Implement and Administer a Coupon Program for Digital-to-Analog Converter Boxes,* Notice of Proposed Rulemaking, 71 FR 42,067 (July 25, 2006). 8 Summaries of these *ex parte* meetings are posted on NTIA's website at *http://www.ntia.doc.gov* . II. Discussion A. Eligible U.S. Households 4. After February 17, 2009, households may make one or more of several consumer choices to achieve digital-to-analog conversion, such as via cable or satellite service (where available), or through a converter device. 9 In the NPRM, NTIA proposed to define those U.S. households eligible to participate in the Coupon Program as “those households that only receive over-the-air television signals using analog-only television receivers.” 10 NTIA further proposed to make households that receive cable or satellite television service, even if those households have one or more analog television signals not connected to such service, ineligible for the Coupon Program. 9 Not all local television signals are uplinked and delivered to satellite homes today. The extent to which satellite subscribers will have digital-to-analog conversion of local signals available to them after February 17, 2009, will depend on the availability of “local-into-local” offerings from satellite providers. 10 NTIA proposed to define a “television household” as a “household with at least one television . . . consisting of all persons who currently occupy a house, apartment, mobile home, group of rooms, or single room that is occupied as separate living quarters and has a separate U.S. postal address.” *See* NPRM, 71 FR at 42,068. 5. Many commenters disagreed with NTIA's proposed definition and argued that all consumer households should be eligible to receive coupons. 11 Given the funding level and the possibility that many households with cable or satellite service may wish to purchase a converter box, commenters expressed concern about excluding any household. 12 Commenters also expressed concern about those consumers that may need to rely on over-the-air capabilities in times of emergency. Some commenters argued that the Act and the legislative history do not support NTIA's proposed definition and that the Agency lacks the statutory authority to limit the eligibility requirements. 13 For example, in Joint Industry Comments, the commenters argued that the Act and the legislative history, as well as practical considerations, “preclude any implementation of the program that would exclude from coupon eligibility analog sets in cable or satellite-served homes not connected to those services.” 14 Likewise the Consumer Electronics Retailer Coalition
(CERC)argued that there is no basis in the Act or the legislative history to support the standard proposed in the NPRM. 15 11 *See* Association for Maximum Service Television, Consumer Electronics Association, and National Association of Broadcasters (Joint Industry) Comments at 5-11; Thomson Comments at 2; Archway Marketing Service Comments at 2; LG Electronics Comments at 5; Community Broadcasters Association Comments at 3; Consumer Electronics Retailers Coalition
(CERC)Comments at 5; AARP Comments at 5; MTVA Comments at 3; Joint Consumer Comments at 2-8; APTS Comments at i; RadioShack Corporation Comments at 3-6; Sodexho Comments at 4. 12 *See* Letter to Hon. John M. R. Kneuer from Hon. John D. Dingell, Hon. Edward J. Markey, Hon. Henry A. Waxman, Hon. Frank Pallone, Jr., Hon. Bart Gordon, Hon. Eliot L. Engel, Hon. Ted Strickland, Hon. Lois Capps, Hon. Tom Allen, Hon. Rick Boucher, Hon. Sherrod Brown, Hon. Bart Stupak, Hon. Gene Green, Hon. Diana Degette, Hon. Mike Doyle, Hon. Jan Schakowsky, (Letter from Members of the House Energy and Commerce Committee) (Nov. 15, 2006) at 2. 13 Joint Consumer Comments at 2-8; Richard Brittain Comments; Joint Industry Comments at 5. 14 Joint Industry Comments at i. 15 CERC Comments at 5. 6. Several comments raised other points in favor of expanding eligibility beyond that proposed in the NPRM. For example, some commenters noted that even cable and satellite households may need the ability to receive signals over the air in times of emergency or severe weather. 16 Others noted that limiting coupons to over-the-air-only households could disadvantage satellite customers who receive their local broadcast signals over the air. 17 Operators of Class A and LPTV stations noted that these facilities will continue to broadcast in analog after February 17, 2009, that most of these facilities are not eligible for cable or satellite must carry and that NTIA should not deny converter-box subsidies to households that rely on analog receivers to watch Class A and LPTV stations over the air, even if they have another means to view digital full-power stations. 18 Consumers Union contended that denying converter boxes to all households would cause disruptions in service that could undermine consumer support for the digital television transition. 19 RadioShack suggested that limiting eligibility could reduce demand for converter boxes, thus raising their costs and potentially harming low-income households. 20 16 *See, e.g.,* Marvin Clegg Comments at 1; Richard Brittain Comments at 1; Thomson Comments at 2. 17 *See, e.g.,* Richard Brittain Comments at 1. 18 Community Broadcasters Association Comments at 5. Section 3002 of the Act permits Class A and LPTV facilities to broadcast in analog after February 17, 2009. Moreover, a cable system must carry a LPTV facility only if it meets certain limited requirements. 47 U.S.C. § 534(h)(2). 19 Joint Consumer Comments at 9. 20 RadioShack Comments at 7. 7. NTIA recognizes that limiting eligibility as proposed in the NPRM would be difficult to enforce. There are no lists of households that only receive over-the-air television broadcasts. Moreover, as the Government Accountability Office
(GAO)recognized, it would be a highly challenging task to obtain a list of cable and satellite subscribers in order to identify over-the-air-reliant homes by the process of elimination. 21 In fact, it would be difficult for NTIA to determine which U.S. households currently have, or plan to obtain, an analog television set requiring a CECB. Moreover, efforts to confirm eligibility would likely delay reasonable and timely distribution of coupons. 22 Unless NTIA devoted substantial resources to review applicants'certifications of eligibility, there would be potential for waste, fraud and abuse. 23 Such efforts could also substantially increase the costs of administering the program. 24 21 *See* “Digital Broadcast Television Transition: Several Challenges Could Arise in Administering a Subsidy Program for DTV Equipment,” GAO-05-623T (May 26, 2005) at 11-13 (GAO Challenges Report). In addition to the cable industry's reluctance to give the government access to its subscriber lists, GAO noted that it would be difficult to merge information across the more than 1,100 cable and satellite companies in the United States. GAO Challenges Report at 12. 22 *See, e.g.,* RadioShack Comments at 8. 23 *See, e.g.,* Thomson Comments at 2. 24 *See, e.g.,* Archway Marketing Services Comments at 2. 8. Upon careful consideration of all arguments raised in the comments for and against limiting household eligibility criteria, NTIA has decided *not* to initially limit household eligibility in the Coupon Program to households reliant exclusively on over-the-air broadcasts for television service. Accordingly, the Final Rule permits coupons to be distributed initially to all U.S. households. As proposed in the NPRM and consistent with the definition used by the U.S. Census Bureau, a “household” consists of all persons who currently occupy a house, apartment, mobile home, group of rooms, or single room that is occupied as a separate U.S. postal address. 25 NTIA received a comment from SunBelt Multimedia Company that requested the household definition to be expanded to allow multiple families residing at a single address to each count as a household, based on the community or income criteria. 26 NTIA recognizes that multiple families may exist in households as defined by this Final Rule, however, it would be administratively difficult to determine the number and location of these households and to establish a definition based on community or income criteria. 25 *See* U. S. Census Bureau, *http://www.census.gov* (Current Population Survey — Definitions and Explanations). 26 Sunbelt Multimedia Company Comments at 11. 9. Recognizing that funds allocated for this program are limited and the possibility that over-the-air reliant television households may lose television service as a result of this decision, NTIA will permit open eligibility on a first-come, first-served basis while the Initial Funds are available ( *i.e.,* until coupons valuing $890,000,000 have been redeemed and issued but not expired, in accordance with Section 3005(c)(2)(B) of the Act). 27 The Act permits funding of the program to increase by $510,000,000 to a total of $1,500,000,000 upon certification to Congress that the initial allocated amount of $990,000,000, the Initial Funds, is insufficient to fulfill coupon requests. 28 If such Contingent Funds are available for the Coupon Program, the eligibility for those coupons provided from Contingent Funds will be limited to over-the-air-only television households (Contingent Period). Consumers requesting those coupons during the Contingent Period must certify to NTIA that they do not subscribe to a cable, satellite, or other pay television service. NTIA makes this decision balancing the demand uncertainty and funding limitations with the need to prioritize contingency funds for over-the-air reliant households which will lose total access to television broadcasts after the transition date. 27 *See supra,* para 2. 28 *See* Section 3005(c)(3)(ii) of the Act. 10. NTIA did not propose to consider “economic need” as part of the eligibility requirement, but solicited comment on whether it should be considered and, if so, how it should be determined. NTIA received comments opposing adoption of eligibility criteria encompassing economic need because of the complications involved in such an analysis. Some commenters also asserted that NTIA lacks such statutory authority. 29 Other commenters, however, supported the idea of adopting a means test and suggested that NTIA use income or participation in other federally supported programs as a basis of determining eligibility. For example, the American Association of People with Disabilities suggested that NTIA adopt a program similar to the FCC Lifeline-Linkup phone subsidy program which uses 135 percent of the poverty level or persons who are beneficiaries of other federal assistance programs as a basis for eligibility. 30 29 *See* Carolyn McMahon Comments; Stored Value Systems, Inc. Comments at 4; Consumer Union, Consumer Federation of America, and Free Press Comments at 9-10; Sodexho Comments at 5; Letter from Members of the House Energy and Commerce Committee at 2. 30 *See* American Association of People with Disabilities Comments at 8 (the federal programs cited by AAPD include Medicaid, Food Stamps, Supplemental Security Income, Federal Public Housing Assistance, Low-Income Home Energy Assistance Program, Temporary Assistance to Needy Families, The National School Lunch Program's Free Lunch Program, Bureau of Indian Affairs General Assistance, Tribally Administered Temporary Assistance for Needy Families, Head Start, Tribal National Lunch Program). 11. NTIA agrees that including economic need as an eligibility factor in the Coupon Program would be a complicated process. Furthermore, because this is a one-time program, it would not be cost effective to develop eligibility requirements and verification systems such as those used by other federal assistance programs, such as Food Stamps. NTIA noted in the NPRM that neither the Act nor the legislative history suggests such a requirement. Accordingly, NTIA will not consider economic need as part of an eligibility requirement for the coupon program. Moreover, the Agency will only make the Coupon Program available to individual U.S. households, as proposed in the NPRM, not businesses, schools, or other entities as suggested by one commenter. 31 The Act states that a “household” may obtain coupons, and there is nothing in the legislative history or the comments that suggests that Congress intended to extend eligibility beyond households. 31 *See* Jon Kaps Comments (arguing that schools should be eligible to participate in the Coupon Program). B. Coupon Value and Use Restrictions 12. Consistent with the Act, NTIA proposed in the NPRM to issue $40 coupons to be redeemed only at certified retailers when purchasing a CECB. The Agency also proposed to place identifying serial numbers on the coupons to keep track of the number of coupons issued to and redeemed by consumers as well as to minimize fraud, such as counterfeiting. NTIA did not propose a specific form of the coupon, but requested comment on whether the Agency should issue a paper coupon or an electronic coupon card. 13. NTIA proposed to restrict each individual coupon to the purchase of one CECB. Consistent with the Act, NTIA also proposed to prevent coupon holders from using two coupons in combination toward the purchase of a single CECB. To prevent fraud, NTIA also proposed to prohibit coupon holders from returning a converter box to a retailer for a cash refund or for credit towards the purchase of another item. However, the Agency did propose to permit the even exchange for another CECB in the event of defective or malfunctioning equipment. 14. One commenter argued that a buyer should be able to use the $40 coupon to buy a converter box with deluxe features. 32 Best Buy supported only “even” exchanges of devices and opposed allowing consumers to return converters for a cash refund or for credit towards the purchase of an upgraded device. 33 RadioShack recommended that statements such as “No Cash Value” or “Exchange Only for Eligible Converter” be clearly printed on the coupon and in accompanying consumer material. 34 32 Robert Diaz Comments. 33 Best Buy Comments at 4. 34 RadioShack Comments at 13. 15. Consistent with the Act, the value of the coupons issued will be $40. In no case may consumers receive any cash value for the coupon. 35 If the cost of a CECB is less than $40, retailers will only be reimbursed for the retail price of the box. Likewise, consumers cannot receive a refund or credit towards the purchase of another item if the price of the CECB is less than the $40 value of the coupon. Retailers and consumers are also prohibited from using two coupons in combination towards the purchase of a single CECB. NTIA recognizes the opportunities for fraud and abuse by permitting consumers to receive a cash refund for the value of the coupon or for credit towards another item outside of the program. Therefore, NTIA will permit an exchange only for another converter box certified under these regulations. 36 35 To further prevent fraud, the Final Rule states that consumers may not sell, duplicate or tamper with the coupon. 36 However, if a consumer returns a CECB to a retailer, the retailer may refund to the consumer that portion of the purchase price not covered by the coupon. 16. Some commenters supported the use of a paper coupon. For example, one commenter stated that it was Congressional intent to issue a paper coupon with UPC coupon-type barcode, which brick-and-mortar retailers and clearinghouses could handle in the same fashion as manufacturers' cents-off coupons because this would minimize the cost of the overall program. 37 Another commenter stated that the paper coupon was both straightforward to use and provides for a fast and economical means to mail eligible applicants their coupons in a short time frame. 38 Moreover, paper coupons could have several security features, including unique serial numbers, barcodes, security paper and consumer identification. 39 Many of the comments, however, addressed the problems associated with paper coupons including the potential for fraud, delay in retailer reimbursement and increased administrative costs. 40 37 *See* Richard Brittain Comments. 38 *See* Poorman-Douglas & Hilsoft Notifications Comments. 39 *Id* . 40 *See* CERC Comments at 7-8; Archway Marketing Services at 5-6. 17. Other commenters, particularly retailers, supported the use of an “electronic coupon card”
(ECC)on which the $40 value can be credited towards the purchase of a CECB. Many commenters agreed that use of the ECC was the most efficient way to administer the program as well as the best way to reduce fraud. 41 CERC stated that an ECC should
(a)bear a “use by” date on its surface and should be coded to expire after the time indicated on its surface;
(b)carry a unique serialized number (encoded in a magnetic strip and printed in human-readable form on the card) that can be transmitted to a central database immediately upon submission for on-line verification; and
(c)provide clear and succinct rules concerning coupon use. 42 CERC also noted that the use of ECCs would permit more consumer friendly converter exchanges. 43 It was also noted that the use of ECCs would facilitate real-time transmission of information on redemption rates which is important because transmission delays may limit NTIA's ability to monitor performance or to request additional congressional funding. 44 There were, however, concerns expressed about the use of ECCs. For example, ORC Macro noted that these cards may not be compatible with electronic scanning devices used by participating retailers, and that the requirement for electronic systems may eliminate small retailers from participating. 45 NTIA also received conflicting comments on whether ECCs could be encoded to limit use to a specific product. 46 Retailers suggested that ECCs may require significant up-front costs for software, payment processing and employee training. 47 41 *See* Joint Industry Commenters at 22; CERC Comments at 7-8; Samsung Electronics Comments at 2; Joint Consumer Comments at 17; Best Buy Comments at 2; RadioShack Corporation Comments at 10. 42 CERC Comments at 6-9. 43 *Id* . at 8. 44 Joint Consumer Comments at 17. 45 ORC Macro Comments at 3. 46 Archway Marketing Services Comments at 6; Sodexho Comments at 9; Best Buy Comments at 2: CERC Comments at 7; Stored Value Systems, Inc. Comments at 8. 47 Best Buy Comments at 2; CERC Comments at 6. 18. The coupons will not carry any “stored value,” but the appropriate amount will be identified on the cards and authorized for redemption when matched to the central database to verify each transaction. In light of the comments received, particularly those from retailers, NTIA will provide coupons that are capable of electronically encoding information that is necessary for the program to run efficiently and permit electronic tracking of transactions. NTIA also believes that electronically encoded coupons will reduce opportunities for fraud in the program. NTIA notes that electronic information may be encoded on paper coupons as well as plastic cards. 48 48 An example of a paper card with electronic tracking capability would be a MetroCard, used in the Washington D.C.-area Metro system. C. Application Process 19. NTIA proposed to require coupon applicants to submit the following information:
(1)name;
(2)address (no Post Office Box);
(3)the number of coupons required, not to exceed two coupons;
(4)a certification that they only receive over-the-air television signals using an analog-only
(NTSC)television receiver; and
(5)a certification that no other member of the household has or will apply for a coupon. Furthermore, consistent with the Act, NTIA proposed to commence the application period on January 1, 2008 and conclude on March 31, 2009. If an applicant does not specify the number of coupons needed, NTIA proposed sending the applicant one coupon. Also consistent with the Act, NTIA proposed sending the requested coupon(s) via the United States Postal Service. 20. Few of the comments raised concerns about the information NTIA proposed to require consumers to provide as part of the application process. CERC, however, argued that certifications that a household receives only over-the-air television signals and that no one else in the household will apply is neither consistent with the Act, nor practical nor fair. 49 Council Tree Communications Inc. argued that NTIA should allow for “alternative methods of delivering the coupons to Indian Reservations and Alaskan Native Villages.” 50 Some commenters encouraged the Agency to make applications available in foreign languages. 51 With respect to the application period, one commenter suggested that the time period be extended to December 31, 2009, because consumers may not understand the need for a converter box until their televisions go dark after February 17, 2009. 52 49 CERC Comments at 9. 50 Council Tree Communications Inc. Comments at 1. 51 Sunbelt Multimedia Co. Comments at 12. 52 Robert Diaz Comments. 21. The Final Rule requires applicants to provide NTIA with only the information necessary for NTIA to fulfill a coupon request. Accordingly, applicants for coupons must provide the following:
(1)name;
(2)address;
(3)the number of coupons that they require; and
(4)a certification as to whether they receive cable, satellite, or other pay televison service. NTIA is sensitive to privacy concerns and is not requesting unnecessary personal identification information, such as social security numbers. Multifamily residences (i.e., a residence occupied by more than one family unit) will not be eligible for more than two coupons unless each household is occupied as separate living quarters and has a separate U.S. postal address. Coupons will be mailed via the U.S. postal service along with the terms and conditions of use. Given the sensitivity of commenters to the prevalence of Post Office Boxes in rural America, NTIA will make allowances for households on Indian Reservations, Alaskan Native Villages and other rural areas where Post Office Boxes are the only means of mail delivery. Residents of Indian reservation, Alaskan Native Villages and other rural areas without home postal delivery may be requested to supply additional information to identify the physical location of the household. With respect to the application period, NTIA will adhere to the period provided in the legislation; thus NTIA will accept applications only between January 1, 2008 and March 31, 2009. 53 53 Section 3005(c)(1)(A) of the Act. 22. Commenters agreed with NTIA's proposal to make application forms widely available. 54 NTIA will administer the program to make it accessible particularly to those in need of coupons. As part of the consumer education program, consumers will be made aware of the various ways to access and submit applications for the Coupon Program. NTIA will ensure that applications and accompanying materials are available in other languages consistent with its obligations under Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” (Aug. 11, 2000). 55 The Final Rule provides that coupons may be requested by mail, by phone and electronically ( *e.g.,* by email or through a website). 54 AARP Comments at 9-10. 55 The Department of Commerce Limited English Proficiency guidelines are provided on the Department's website at *http://www.osec.doc.gov/ocr/doclepplan2003.pdf* . D. Coupon Expiration 23. According to the Act, coupons issued under this program are to expire three months after issuance. Accordingly, NTIA proposed to print an expiration date on each coupon and proposed that the expiration date be three months after the coupon's issuance date. NTIA defined issuance date as the date upon which the coupon is placed in the U. S. mail. 24. Although commenters agreed with NTIA's proposal to print an expiration date on the coupon, many thought that the proposed expiration date of three months after the coupon's issuance should be extended. The time that commenters suggested the date be extended varied from three to ten days after issuance to take into consideration such matters as the rural location of the consumers, homebound or disabled consumers, slow mail delivery and coupons lost in the mail. 56 56 Susan Stanke Comments; Richard Brittain Comments; AARP Comments at 10; Best Buy Comments at 3; RadioShack Comments at 9; Sunbelt Multimedia Co. Comments at 11. *See also* Ralph L. Mlaska Comments (coupons issued in first 6 months of the year should expire in December; coupons issued in the last 6 months should expire in July of the following year); George McLam Comments (program should last all of 2009). 25. As stated above, the Act requires NTIA to issue coupons that expire three months after issuance. NTIA believes that three months is reasonable and allows ample time for consumers to receive and use the coupons. The expiration date will encourage consumers to use coupons promptly and will permit NTIA to use funds from expired coupons to issue coupons to other households. Accordingly, NTIA adopts a rule that coupons will be issued with an expiration date of three months after the issuance date. Three months will further be defined as 90 calendar days to provide a uniform redemption period for all coupon recipients. The issuance date will be the date the coupon is placed in the U. S. Mail. E. Coupon-Eligible Converter Box 26. The Act defines the term “digital-to-analog converter box” (a CECB) as “a stand-alone device that does not contain features or functions except those necessary to enable a consumer to convert any channel broadcast in the digital television service into a format that the consumer can display on television receivers designed to receive and display signals only in the analog television service, but may also include a remote control device.” 57 NTIA's Final Rule adopts technical specifications and features required for a CECB to qualify for the Coupon Program. Manufacturers are free to market converter boxes which do not comply with the requirements of the Final Rule, although such devices would not be eligible for the Coupon Program. 57 *See* Section 3005(d) of the Act. 27. NTIA acknowledges that many sections of the NPRM incorporate standards or rules adopted by the FCC regarding digital television transmission or receiver requirements, and also incorporate industry standards and guidelines adopted by the Advanced Television Systems Committee (ATSC), CEA or other organizations. 58 NTIA's incorporation of these industry standards and guidelines or FCC standards and rules into its regulations is intended to assist converter-box manufacturers by gathering NTIA's basic converter-box requirements in a single place. NTIA's regulations do not supercede the FCC's authority, affect any FCC requirement or revise any of the industry standards and guidelines discussed in this document. In these regulations, NTIA adopts technical specifications and features required for a CECB. NTIA recognizes that CECBs are not currently available to consumers, and that manufacturers will have barely 12 months to bring converter boxes compliant with NTIA specifications to market, less than the typical 18-month manufacturing cycle. 59 58 FCC receiver standards are set forth at 47 CFR 15.117; FCC transmission standards are set forth at 47 CFR 73.682. Examples of industry standards and guidelines incorporated in this Final Rule are ATSC A/74 and CEA 909. 59 Thomson Comments at 8. 28. NTIA underscores that the converter boxes that will be eligible for this program are in development and are not yet commercially available. NTIA cannot warrant the performance, suitability or usefulness of any CECB. 29. The NPRM requested comment on NTIA's proposed rule to define the converter box eligible for the Coupon Program. The NPRM presented several guidelines which NTIA used in developing the proposed rule and analyzing the comments submitted by the public. These guidelines include the ability of consumers to continue receiving broadcast programming in the same receiving configuration ( *e.g.,* same household antenna, same location) as used for the existing analog reception; that the CECBs be inexpensive but meet a minimum performance level; and that they should be easy to install and operate. 60 60 NPRM, 71 FR at 42,069-70. 30. The NPRM requested comment on several related issues, including the appropriate minimum technical capabilities for CECBs, their features; and the extent to which NTIA should consider certain standards, such as energy efficiency, in determining the type of converter box that would be eligible for the Coupon Program. Comment was also sought on how NTIA can determine whether a converter box meets the requirements of the Coupon Program and how the CECBs should be identified so the public is informed that a specific box is eligible for a coupon. Comments were received on each of these issues as well as additional areas. Each of these is discussed in the following sections. **a. Minimum Technical Specifications: ATSC Guidelines A/74 and FCC Part 73** 31. The NPRM stated that “[f]or purposes of the coupon program, NTIA proposed certain standards for a minimum-capabilities converter box that simply converts an ATSC terrestrial digital broadcasting signal to the analog National Television Standards Committee
(NTSC)format.” 61 The NPRM proposed that the converter box should be capable of receiving, decoding and presenting video and audio from digital television transmissions as specified in FCC Part 73 (47 CFR Part 73) and that meet the ATSC Recommended Practice: Receiver Performance Guidelines ATSC A/74 (A/74). 61 *Id* . at 42,069. 32. NTIA received many comments regarding the technical specifications proposed in the NPRM. All the comments agreed that A/74 should form the basis of the technical specifications for the CECB. 62 One commenter, Zoran, urged NTIA to adopt, but not exceed, the A/74 guideline. Zoran stated that “[e]xceeding A/74 on a basic set top box calls for over engineering and the use of non-commodity parts that increase cost exponentially.” 63 Many of the commenters recommended that NTIA adopt performance specifications for the converter box that go beyond the receiver guidelines contained in A/74. The Joint Industry Comments noted that there have been ongoing improvements in technology since the A/74 guidelines were adopted in 2004 that would enable NTIA to set reasonable requirements exceeding A/74 performance levels in some areas and also to fill in some requirements for performance levels where A/74 only specified test procedures. 64 MTVA, an association of television stations that serve the New York City metropolitan area, echoed the Joint Industry Comments and indicated that it may be possible to improve on the A/74 performance levels with the fifth generation of VSB decoder chips and new RF tuners that have been developed since A/74 was adopted. 65 Charles Rhodes, former Chief Scientist of the Advanced Television Test Center, that tested the DTV systems adopted by the FCC in 1996, stated that A/74 was just a guideline and was never intended to serve as a minimum performance standard. 66 62 *See* e.g., Funai Comments at 7; Microtune Comments at 1; Motorola Comments at 2. 63 Zoran Comments at. 2. 64 Joint Industry Comments at i. *See also* LG Electronics Comments at 10; Samsung Comments at 2; Thomson Comments at 4. 65 MTVA Comments at 9-10. 66 Charles W. Rhodes Comments at 1. 33. The New America Foundation *et al*
(NAF)also recommended that NTIA establish performance specifications beyond those contained in A/74. 67 NAF's concerns regarding NTIA converter-box specifications extend beyond the delivery of digital television to those who currently depend on analog television. NAF argued that the quality of the converter boxes NTIA mandates will affect the utility of the white spaces within TV channels 2-51 and noted that, in an FCC NPRM on “Unlicensed Operation in the Broadcast Bands” (Docket 04-186), the FCC expressed concern that low-quality DTV receivers could severely impact the utility of the white spaces within TV channels 2-51.” 68 NAF suggested that desensitization performance of the converter boxes should be considered and should be equivalent to most of the stand-alone TV sets presently marketed. NAF also proposed that detailed engineering measurements be made of the susceptibility of current DTV receiver designs to interference from out of band signals. 69 NAF noted that the FCC was conducting tests that will not be available until mid-2007, but presented preliminary results of the three receiver tests it funded at the University of Kansas. 70 Raising another issue regarding interference, MTVA recommended that NTIA adopt MTVA specifications for NTSC into DTV taboo channels (television channels that cannot be used because of interference with other channels). 71 MTVA did not provide laboratory or real world measurements supporting its recommendation or information on whether manufacturers can currently build DTV equipment capable of meeting proposed specifications. 67 *See* Comments from New America Foundation, Media Access Project Consumer Federation of America, Wireless Internet Service Providers Association (Wispa), Acorn Active Media Foundation Community Technology Centers' Network, Champaign Urbana Community Wireless Network (Cuwin), The Ethos Group, and Freenetworks.org (collectively, referred to hereafter as NAF Comments). 68 NAF Comments at 2; *See also* Charles W. Rhodes Comments at 1. 69 NAF Comments at 5. 70 NAF 2nd Comments (November 16, 2006). 71 MTVA Comments at 17. 34. The comments filed by these organizations all highlight areas where the commenters believe the A/74 Receiver Performance Guidelines of June 18, 2004, do not provide a sufficient level of performance for the CECB. The technical comments and thoughtful recommendations of these commenters prompted NTIA to reexamine the NPRM proposal that the A/74 guidelines be adopted as the performance specifications for the CECBs. 35. While all of these commenters recommend that NTIA adopt specifications or tests to qualify a CECB that go beyond those in the A/74 guidelines, they each present differing technical recommendations. 72 NTIA shares the concern of the commenters that CECBs perform at a level to meet the reception needs of the American public. NTIA has carefully analyzed the recommendations presented by the commenters, and has seen no scientific data that any proposed set of technical specifications will ensure any given level of performance of converter boxes in real-world environments. Many of the commenters recommend that further tests be performed. 73 Given the requirements of the Act that coupons be available for CECBs early in 2008, there is time neither for additional analysis testing as proposed by the commenters nor for the establishment of industry-accepted standards following such tests. 74 72 For example, while A/74 does not require any specific number of field ensembles to be successfully demodulated, the Joint Industry Comments recommended that a converter box successfully demodulate 30 of the 50 field ensembles included in A/74. Joint Industry Comments at Appendix 4. Rhodes recommends that “tests of ACI [adjacent channel interference] should be carried out over the full range of D [desired] signal powers that will exist within the coverage area of the transmitter,” while A/74 only specifies three desired signal power levels. Rhodes Comments at 4. MTVA stated that multiple interfering signal tests are important but said that reasonable interference levels are not yet known. MTVA Comments at 15. NAF indicated that in addition to the A/74 guidelines, tests must also include desensitization performance. NAF Comments at 5. 73 For example, the MTVA noted that “reasonable interference values are not yet known at this time, but should be investigated (with lab testing) in the near future recognizing current tuner technology.” MTVA Comments at 15. *See also* Charles Rhodes Comments at 7 (“testing should cover the same desired signal power range as in single Taboo testing above....It is my intention to actually perform these tests in my own laboratory in the next few months”); NAF Comments at 5 (“detailed engineering measurements as to the susceptibility of current DTV receiver designs to interference from out-of-band signals are needed.”). 74 “[A]ssuming NTIA adopts final rules by January 1, 2007, manufacturers will have barely 12 months to bring compliant converter boxes to market-less than the typical 18-month manufacturing cycle.” Thompson Comments at 8. 36. While NTIA cannot guarantee the performance of the CECBs, NTIA intends that coupons be used for converter boxes using current technology available in the marketplace. To this end, NTIA recognizes that digital reception technology has advanced in the two years since the adoption of A/74. Further, NTIA recognizes that in order to qualify a converter box to meet minimum specifications, it must, in the words of the Joint Industry Comments “fill in some requirements for performance levels where ATSC A/74 only specified test procedures.” 75 75 Joint Industry Comments at 1. 37. Having reviewed the comments filed by many parties, NTIA has accepted the technical recommendations of the Joint Industry Comments as the basis for the minimum technical specifications of the CECB. The Joint Industry Comments represent a collaboration by the broadcast industry and the consumer electronics industry to present a set of technical specifications which both industries believe can provide the American consumer with a high-quality, low-cost and easy-to-use CECB. The Joint Industry Comments use the A/74 guidelines as the basis for their proposal, but propose several revisions to reflect advances in technology in the two years since the A/74 standard was adopted. Further, they propose target performance levels in several areas where A/74 only specifies test procedures. The NAB and MSTV have funded the development of converter-box prototypes from two manufacturers which they state demonstrate that the technical specifications they propose are “clearly achievable in practical products designed to be amenable to production in mass manufacturing quantities. Further, the project results provide tangible evidence that a high-quality, low-cost converter box can be built with measured performance that exceeds the levels specified in the ATSC A/74 Recommended Practice on Receiver Performance in several important areas and consequently can provide reliable reception under a variety of real-world conditions.” 76 76 *Id* . at 13. 38. NTIA believes that CECBs should be produced according to specifications currently accepted by major manufacturers. It would be contrary to the public interest if coupons were used to purchase converters designed with obsolete or poorly performing components. 77 On the other hand, some commenters suggested technical specifications that have not been widely agreed upon nor quantified; and products in widespread commercial deployment have not been tested to these specifications. The technical specifications adopted by NTIA should provide American consumers with an economical CECB containing state-of-the-art technology available today from manufacturers within the time frame required by the Act. 77 Letter from Members of the House Energy and Commerce Committee at 2 (stating that converter boxes should, at a minimum, replicate the picture and audio quality consumers experience today when watching their analog televisions). 39. Therefore, NTIA adopts the required minimum features and technical specifications in Technical Appendix 1 of the Final Rule. In addition, NTIA specifies permitted and prohibited features of a CECB in Technical Appendix 2. **b. Converter-Box Antenna Inputs** *i* . Smart Antenna 40. The NPRM proposed that the only input to the converter box shall be for an external antenna. The NPRM stated that “[a] single input (Type F connector) ensures that only an antenna can be connected to eligible boxes thus ensuring use of such boxes as for over-the-air television reception only.” 78 The F-type connector is the standard antenna input in most television receivers. While the F-type connector was supported by all who commented on antenna inputs, many commenters requested that an additional antenna input be permitted in the CECB. Most of the comments proposing an additional antenna input requested the flexibility to include an interface for a technology known as a smart antenna. 79 A smart antenna allows for automatic electronic steering and signal-level control so a consumer can receive the best signal for each channel. The Joint Industry Comments stated that in many markets, television stations' transmitters are located on different sides of the population center due to separation requirements or other practical considerations outside their control. In these instances, consumers can achieve the best reception using electronically steered smart antennas. 80 78 NPRM, 71 FR at 42,070. 79 A standard for smart antenna interfaces is defined by the CEA-909 Antenna Control Interface standard, which is included in the A/74 guidelines, Section 4.2. 80 Joint Industry Comments at 17. 41. MTVA stated that in difficult reception environments, the DTV video and audio is either perfect or nonexistent and the use of a smart antenna can mean the difference between having good DTV service or no service. 81 CERC noted that a smart antenna would “better allow consumers to adjust for propagation characteristics and set capabilities. This may minimize consumer disappointment and post-sale product exchanges.” 82 81 MTVA Comments at 5-6. 82 Zoran Comments at 3; *but see* CERC Comments at 10. 42. Zoran, however, opposed the use of a smart antenna and only supported the use of a passive antenna. RadioShack supported the option of a smart antenna interface in a CECB. In its comments, RadioShack did not propose that a smart antenna interface be mandated as it will add unnecessary cost for many consumers, but recommended that it should be an option in a certified converter box for those consumers who seek it. 83 83 Radio ShackComments at 20. 43. NTIA recognizes that DTV reception can be difficult in many regions of the country. The NPRM stated that “[i]deally, a converter box should be able to receive digital broadcast signals in the same receiving configuration ( *e.g.,* same household antenna, same location) as used for the existing analog reception.” 84 NTIA notes, however, recent GAO congressional testimony indicating that antenna reception of digital signals may vary based on a household's geography and other factors. 85 In addition, antennas configured for primarily VHF service may not be as effective as many stations switch to UHF frequencies. 84 NPRM, 71 FR at 42,069. 85 *See* GAO Challenges Report at 6. 44. After reviewing the comments from Joint Industry Comments, MTVA and others, as well as the GAO congressional testimony, NTIA concludes that many consumers may wish to use smart antennas. While NTIA expects that the industry will continue to work on improving the performance and reduce the cost of both passive and active smart antennas, NTIA believes that many consumers will benefit from smart-antenna technology to receive over-the-air digital television broadcasts. It is clear, however, that a smart-antenna interface will add to the cost of the converter box and will not be needed by many households. 45. In order to permit the inclusion of a smart antenna, but not add to the cost of the converter box for those who do not require this capability, the Final Rule will *permit* , but not require, manufacturers to include in their CECBs the circuitry and connectors associated with the so-called smart-antenna interface. *ii* . Bundling 46. In its comments, Funai supported the use of a smart antenna and recommended that “the ‘bundling' of such an antenna with a DTA box should not preclude eligibility for the subsidy.” 86 Funai suggested that “[a]lthough prices may fluctuate due to market conditions, we conservatively estimate that it is possible to price a DTA and Smart-Antenna bundle at less than $100.” 87 NTIA does not believe that the bundling of a smart antenna with a converter box meets the requirement of the Act which defines a CECB as a “stand-alone” device. 88 The purchase of a smart antenna at the same time a consumer purchases a converter box equipped with a smart-antenna interface will ease the installation and operation of the converter box for many people. Manufacturers or retailers may wish to offer combined purchases of converter boxes with smart antenna interfaces and smart antennas at promotional prices. The CECB, however, must be presented for sale at all outlets as a stand-alone single unit and cannot be sold conditioned on the purchase of any other items. 86 Funai Comments at 10. 87 Funai 2 nd Comments at 1-2. 88 *See* Section 3005(d) of the Act. *iii* . CEA-909 47. CEA-909 is the current industry standard for a smart antenna interface. MTVA stated that “eligibility should not be limited to only devices that comply with this standard (CEA-909) since such a requirement could preclude or delay technological advances in this area that are now being considered.” 89 NTIA recognizes that technological advances are being made in many areas of digital television broadcasting. In order for this program to proceed so converter boxes can be available to the public in 2008, however, NTIA must establish a Final Rule to specify CECBs which manufacturers will build during 2007. A reference to this standard will be included in the Final Rule for the program. 89 MTVA Comments at 5. *iv* . 300 Ohm Inputs 48. The Community Broadcasters Association
(CBA)did not object to NTIA's proposal that a CECB have an RF input, but recommended that “manufacturers who choose to add a 300-ohm input with screw terminals should not be penalized for doing so.” 90 The CBA comments included no further explanation or information supporting this recommendation. NTIA recognizes that use of 300-ohm antenna inputs is old technology and has no information on the number of television receivers in use today that are equipped only with 300-ohm antenna inputs. NTIA also recognizes that many inexpensive indoor “rabbit-ear” antennas have 300-ohm connectors. NTIA notes that manufacturers of television receivers commonly include inexpensive matching transformers to connect 300-ohm ribbon leads to Type F inputs rather than including built-in 300-ohm antenna inputs, and that such transformers are commonly available where television receivers are sold. We believe that the use of these inexpensive transformers is the most economical method of meeting the needs of those consumers who have television receivers which only contain 300-ohm inputs. The Final Rule, therefore, will *permit* , but not require, manufacturers to include matching transformers to connect 300-ohm ribbon leads to the required Type F connectors. The Final Rule will also permit manufacturers to provide connectors for 300-ohm inputs on the CECB. 90 CBA Comments at 6. Richard Brittain also noted that older sets still have 300-ohm ribbon leads and screw terminals instead of Type F connectors. *See* Richard Brittain Comments. **c. Analog Signal Pass Through** 49. The National Translator Association recommended that the CECBs pass analog signals directly through without processing or modification. 91 The CBA also requested that NTIA require that CECBs pass through an analog signal, either actively or passively. CBA noted that Class A and LPTV stations are not subject to the February 17, 2009 end-of-transition deadline, applicable to full-power stations. It indicated that it was important that the converter box not block the analog signal. 92 LPTV licensee Island Broadcasting noted that thousands of LPTV stations in the United States will remain analog after the transition and are not carried on a cable system or other multi-channel video delivery service. Island recommended that the converter box contain a feature to pass through the analog signal from the antenna to the TV receiver, either when the box is shut off, the signal is passed, or by means of a built in by-pass switch. 93 Funai, however, noted that “[a]n analog pass through, while conveniently retaining legacy analog TV support, would degrade the RF noise performance of all so-equipped DTA tuners by 3dB-a penalty that could not be recovered by any consumer with such a unit.” Funai recommended that a consumer purchase a separate switch and/or external splitter to receive analog television. 94 91 National Translator Association Comments at 1. 92 CBA Comments at 3. 93 Island Broadcasting Comments at 2. Similar comments were filed by the Association of Public Television Stations (APTS), which recommended “that NTIA allow eligible converter boxes to contain a built-in and easily workable A/B switch.” APTS Comments at 30. Richard Brittain recommended a pass through of analog signals if the box is turned off. *See* Brittain Comments. 94 Funai, 2 nd Comments at 2 (Nov. 17, 2002). 50. NTIA is sensitive to the needs of consumers who will wish to continue to view over-the-air analog television during and after the digital transition. Not only will many consumers continue to rely on analog television reception of Class A stations, LPTV stations and translators after the transition, many consumers who purchase the CECB will require the ability to receive analog television signals during the transition period as not all full-power television stations in the United States have completed their digital build-out. NTIA, however, is reluctant to require an analog pass through feature because it will result in a reduction in received signal level and in increased cost to all consumers who purchase a CECB. The amount of reduction in receiver sensitivity and increased cost is dependent on how the analog pass through feature is implemented. This reduction may not be noticeable to consumers who receive strong signals in urban areas, but may mean that consumers who receive marginal digital and analog signals will be unable to receive television signals via the CECB. NTIA notes that switches and external splitters are commonly available where television sets are sold. A single A/B switch will not fully bypass a CECB, however, creating a difficult wiring scenario for the consumers. Splitters and their inherent loss as well as additional cabling makes their use less than optimal in fringe reception areas. NTIA strongly urges manufacturers to take into consideration the needs of consumers to receive analog television along with digital television in the development of CECBs and to investigate minimal signal loss solutions that would ensure an acceptable analog signal pass-through. In the Final Rule, NTIA *permits* that the converter box to pass through the analog signal from the antenna to the TV receiver. **d. Converter-Box Outputs** *i* . RF and Composite Video Outputs 51. The NPRM proposed that the converter box contain the following outputs: Composite video and stereo audio (all three RCA connectors) and Channel 3 or 4 switchable
(NTSC)RF (Type F connector) output. RadioShack recommended that NTIA permit the inclusion of an RF modulator output as an option, but not require this feature. RadioShack stated that “there are only a limited number of households with televisions requiring RF modulators, and of those households, many have already purchased RF modulators in order to connect such devices as DVD players and game consoles, etc. Thus, mandating that *all* consumers pay extra for a product they do not need or may already have in order to satisfy the needs of a smaller number of consumers seems inconsistent with Congress' desire to subsidize a reasonably priced converter box.” 95 95 RadioShack Comments at 19. 52. Most commenters on the subject supported the inclusion of both composite video/audio and RF outputs in the converter box. THAT Corporation (THAT Corp.) noted in its comments that “[t]o utilize these (composite video) outputs, consumers must be able to connect three separate cables from these converter box outputs to three corresponding inputs on the TV monitor. . . such a hookup requires a degree of technical competence lacking in many consumers.” 96 All receiver manufacturers supported the inclusion of both RF and composite outputs as did comments received from other members of the public. A few commenters suggested that NTIA permit the converter box to include an S-video output. 97 S-video is an analog output which delivers standard definition video to the television receiver. 96 THAT Corp. Comments at 8-9. 97 For example, Zoran, Brittain, and Diaz recommended that NTIA permit S-video as an output. *See* Zoran Comments at 1; Richard Brittain Comments; Diaz Comments at 1. 53. As noted earlier, NTIA seeks to ensure that the CECB will be easy to install and operate. The RF output is very easy to use as it only requires the consumer to connect a single cable between the converter box and the analog television. The Final Rule, therefore, *requires* that the CECB include an RF output and also *requires* that the CECB include composite outputs for those consumers who wish to continue to use the features provided by this technology. NTIA will also *permit* a S-video output which provides a better standard definition picture using a simple and inexpensive hookup with one cable. 54. In its comments, Funai recommended that NTIA clarify the types of outputs that would not be permitted in a CECB. Funai commented that “we feel that it is inappropriate to extend Coupon Program eligibility to devices that support high-definition
(HDTV)viewing, *i.e* ., a display with higher-than-standard definition video resolution.” 98 Funai then listed a series of connectors which it felt should not be permitted in the NTIA supported converter box. Funai requested that the following connectors be excluded from the converter box program: Digital Video Interface (DVI), high-definition multimedia interface (HDMI), analog component video (YPbPr), computer video (VGA), as well as USB IEEE-1394 (sometimes trademarked as iLink or Firewire), or IEEE-802.3 (Ethernet) or IEEE-802.11 (wireless). 99 Funai further recommended that “any device that includes an integrated display intended for use as the primary video presentation should be ineligible for the Subsidy.” 100 98 Funai Comments at 11. 99 *Id* . at 11-12. 100 *Id* . 55. In the NPRM, NTIA proposed that “the converter box would not be required to render pictures and sound at more than standard definition quality.” 101 This proposal follows from the definition of a converter box contained in the Act, which limits the converter box to a unit so “the consumer can display on television receivers designed to receive and display signals only in the analog television service.” 102 If NTIA were to permit any digital output to the CECB, then it would cease to be a digital-to-analog converter and would become a digital tuner capable of providing a digital signal to a television monitor. This would clearly be beyond the plain language of the Act which states that the CECB shall “convert any channel broadcast in the digital television service into a format that the consumer can display on television receivers designed to receive and display signals only in the analog television service.” 103 101 NPRM, 71 FR at 42,069-70. 102 *See* Section 3005(d) of the Act. 103 *Id* . 56. Therefore, NTIA specifies in the Final Rule those connectors that will not be permitted in a CECB. Likewise, NTIA clarifies in the Final Rule that CECBs are *prohibited* from containing items such as display screens, recorders or storage devices that go beyond the simple task of converting a digital television signal to an analog signal for display on analog television receivers. *ii* . Audio outputs 57. Two organizations, the WGBH National Center for Accessible Media
(NCAM)and THAT Corp., commented on NTIA's proposal that the outputs include stereo audio. The NPRM proposed that “[t]he outputs shall be channel 3 or 4 (NTSC modulated signals), composite video (NTSC baseband), and audio (stereo).” 104 104 NPRM, 71 FR at 42,070. 58. THAT Corp. requested that NTIA clarify the stereo requirement proposed in the NPRM. They noted that the proposed output with “composite video (NTSC baseband), and audio (stereo)” will provide the analog television receiver with a stereo audio signal. THAT Corp. continued stating that the proposed output on “channel 3 or 4 (NTSC modulated signals)” does not, by itself, provide a stereo signal to the analog television receiver. THAT Corp. notes that “the RF output will contain stereo (left/right) audio information if, and *only* if, the output contains BTSC stereo audio information.” 105 They recommended that NTIA specify that the RF output must contain BTSC stereo audio information. 105 THAT Corp. at 13. “BTSC” derives from the Broadcast Television Systems Committee, an industry group convened in the late 1970s that, primarily, added additional audio channels to NTSC, allowing stereo (left and right) audio and a second audio program
(SAP)channel to be broadcast. In 1984, the FCC developed rules and specified a pilot tone for BTSC. *See* Second Report and Order, Docket No. 21323, Rad. Reg. 2d (P&F) 1642 (1984). *See* Multichannel Television Sound Transmission and Audio Processing Requirements for the BTSC System in OET Bulletin No. 60, Revision A (Feb. 1986). 59. NCAM recommended that the converter boxes' audio outputs support the Secondary Audio Program
(SAP)service where video description for blind individuals is provided. NCAM indicated that video description within digital television signals will be delivered via multiple ancillary audio services (including alternate language audio) and these additional audio channels should be available via the subsidized converter box. 106 NTIA notes that television stations are not required to broadcast video descriptions. 107 None of the commenters provided information regarding the number of digital television stations providing video description services, the number of people served by such services, or the number of manufacturers currently building digital television equipment capable of processing such services. NTIA believes that it would be desirable for manufacturers to include a capability in CECBs that will enable the use of SAP type services, including video description. 108 We note that because digital television encodes audio in a different manner than the encoding used in analog television, digital television does not utilize the SAP channel present in analog television. Standards and guidelines for digital television audio are contained in ATSC publications A/52, A/53 and A/54. 109 Section 6.6 of A/54 provides for two types of main audio service and six types of associated services, including associated services for the visually impaired (VI). The A/54 standard also permits the transmission of secondary language programming and reserves associated audio services for the hearing impaired
(HI)and for emergencies (E). Because of the important public services that may be provided by these associated audio services, NTIA will *permit* CECBs to be capable of processing these associated audio services broadcast by a digital television station, particularly as more stations provide them in the coming years. 106 Combined Comments of NCAM, American Association of People with Disabilities, and Information Technology and Accessible Interface Rehabilitation Engineering Research Center, Trace Center-University of Wisconsin-Madison Comments at 2 (hereafter NCAM Comments). The secondary audio program channel is provided under the BTSC standard and the FCC does not require nor restrict the use of the SAP channel. 107 *See Motion Picture Ass'n of Am. v. FCC* , 309 F.3d 796 (D.C. Cir. 2002) (holding that the FCC did not have statutory authority to issue video description regulations). 108 Congress enacted this coupon program “[t]o help consumers who wish to continue receiving broadcast programming over the air using analog-only televisions.” H.R. Rep. No. 109—362, at 201
(2005)(Conf. Rep.). Consistent with that guidance, NTIA encourages manufacturers to incorporate features that enhance accessibility. 109 Audio standards for digital television are contained in ATSC A/52, Digital Audio Compression Standard, (AC-3); ATSC A/53, and ATSC Digital Television Standard; guidelines for implementation of ATSC audio are contained in ATSC A/54, Recommended Practice: Guide to the Use of the ATSC Digital Television Standard. 60. Manufacturers may provide output for the main channel audio service and associated audio services on the RF Type F connector by using either of the following two methods. NTIA will *permit* manufacturers to follow current industry practice regarding RF outputs for audio/video equipment which provides a mono RF output which is switchable between a station's main channel audio and other associated audio services. In this instance, consumers could use a button on the converter box remote control to select the RF output for a station's monaural main channel audio or toggle through a station's visually impaired
(VI)or other associated audio services. NTIA will also permit manufacturers to provide BTSC Multichannel Television Sound (stereo audio) in the RF output. The BTSC stereo audio signal and included SAP carrier will provide stereo main channel or visually impaired or other associated audio service to the television receiver as selected by the consumer. Consumers will also have the option of receiving stereo audio through the converter box's left/right audio outputs (RCA connectors). *iii* . Multicast Reception 61. Funai asked NTIA to clarify its interpretation of the Act which defines the converter box in part, as a device “to enable a consumer to convert *any channel* broadcast in the digital television service.” Funai stated that the converter box “should provide access to all ‘sub-channels’ of a DTV transmission, i.e., the so-called ‘major and minor' channels that may be transmitted as a ‘multicast' by the broadcast operator.” 110 NTIA believes that multicast capability is an integral feature of digital television transmission and the Act clearly intends that the CECB convert all channels, including those that are multicast. NTIA notes that the Act's definition requires the converter box to “enable a consumer to convert any channel broadcast in the digital television service into a * format that the consumer can display on television receivers designed to receive and display signals only in the analog television service * .” 111 The Act, therefore, does not permit the output to another device such as a computer which might be required to capture streams of data included on the digital television transport stream. The Final Rule will clarify that a CECB is *required* to receive, decode and display all channels, including multicast channels, broadcast by digital television station that can be displayed on an analog television receiver. 110 Funai Comments at 7. 111 *See* Section 3005(d) of the Act (emphasis added). **e. Requirements for Closed Captioning, Emergency Alert System
(EAS)and Parental Controls (V-Chip)** 62. NTIA proposed in the NPRM that CECBs comply with FCC requirements for Closed Captioned, Emergency Alert System
(EAS)and the required parental controls (V-chip). 112 Several commenters noted that the FCC Rules require that television tuners decode Captioning and Parental Control (V-Chip) and, therefore, NTIA regulations are not required in this regard. 113 112 NPRM, 71 FR at 42,070. 113 The FCC's Closed Captioning receiver requirements are contained in 47 CFR 15.122 and incorporate the CEA 708 standard “Digital Television
(DTV)Closed Captioning” which was developed from the CEA 608 standard. The FCC's Parental Control (V-Chip) receiver requirements are contained in 47 CFR 15.120 and incorporate the EIA/CEA-766-A standard. “U.S. and Canadian Region Rating Tables
(RRT)and Content Advisory Descriptors for Transport of Content Advisory Information using ATSC A/65-A Program and System Information Protocol (PSIP).” FCC requirements for Closed Captioning and Parental controls were noted by Thomson, Funai and Brittain. Thomson Comments at 3; Funai Comments at 7; Richard Brittain Comments at 5. 63. Several commenters state that there are no FCC-imposed specific EAS requirements on television receivers at this time. 114 NTIA notes that the FCC requires that all digital television stations participate in the Emergency Alert System after December 31, 2006. 115 The Emergency Alert System is an important way that national, state and local emergency management personnel reach the public with emergency messages. It is, therefore, in the public interest that all television viewers be able to receive and display EAS messages. The Final Rule will include a requirement that, in order to be eligible to participate in the NTIA Coupon Program, a CECB must be capable of receiving, decoding and displaying EAS messages broadcast by digital television stations as required by the FCC Rules. 116 114 Funai, Thomson and Richard Brittain noted that there were no FCC rules regarding EAS applicable to television receivers. Funai Comments at 7; Thomson Comments at 3; Richard Brittain Comments at 5. 115 *In the Matter of Review of the Emergency Alert System,* First Report an Order and Further Notice of Proposed Rulemaking, FCC 05-191, November 3, 2005. 116 47 CFR Part 11. 64. NTIA believes that it is helpful to manufacturers that the Final Rule provide a comprehensive listing of features required for a CECB. With regard to Closed Captioning and Parental Controls, NTIA will require that CECBs comply with the FCC receiver requirements for Closed Captioning and Parental Controls and NTIA will not impose any requirements beyond those contained in the FCC Rules. 117 117 47 CFR 15.120, 15.122. **f. Tuning Capability to All Television Channels 2-69** 65. There was no opposition to the NPRM proposal that the converter box tune to all television channels, 2-69. This proposed rule reaffirmed the FCC Rules that “TV broadcast receivers shall be capable of adequately receiving all channels allocated by the Commission to the television broadcast service.” 118 NTIA clarifies that the CECB is required to receive signals for those television channels that will be “out of core” (channels 52-69) once the digital transition is complete. 118 47 CFR 15.177(b). 66. In its comments, CBA notes that it is important that the tuning capability of boxes not stop at channel 51 because Class A and LPTV stations are permitted to operate on channels 52-69 on a secondary basis even after the February 17, 2009 deadline when full power stations must broadcast within the FCC's “core” channels, 2-51. Moreover, operation on temporary companion digital channels will be permitted on channels 52-59, even after the end of the full-power transition; and temporary flash-cut digital operations is permitted on channels 60-69 when no other channel is available. 119 119 CBA Comments at 6; *see also* MTVA Comments at 11; Joint Industry Comments at Appendix 1. 67. NTIA did not receive comments opposing the action. The Final Rule contains the requirement that the CECB receive all television channels 2-69. **g. Remote Control** 68. In the NPRM, NTIA proposed that the CECB be operable by and include a remote control. The Act specifically permits NTIA to require a remote control, and remote control units are now standard with almost all consumer video equipment such as television receivers, VCR and DVD players and recorders. There were few comments on the requirement to include a remote control. Brittain noted that there may be “real-world reasons for requiring a remote (such as to provide the minimum ATSC functionality).” 120 120 Richard Brittain Comments at 5. 69. NCAM called NTIA's attention to the difficulty the blind and visually handicapped have in using remote controls. NCAM recommended that the CECB's remote control contain dedicated keys which provide direct access to the closed captioning function and the SAP/video description function. 121 To that extent NCAM directed NTIA's attention to Section 508 related to products purchased by the Federal government. Section 508 applies to all Federal agencies when they develop, procure, maintain or use electronic and information technology. 122 Although converter boxes may fall under the definition of electronic and information technology, NTIA is not developing, procuring, maintaining or using CECBs; therefore, Section 508 is not applicable to CECBs in NTIA's program. Nevertheless, NTIA strongly urges manufacturers to take into consideration the needs of consumers with disabilities in the development of CECBs. 121 NCAM Comments at 3. NCAM also suggested the inclusion of a “talking menu” which can read out the functions that are highlighted on an on-screen menu. *Id* . 122 *See* 29 U.S.C. 794d. 70. In order to ease customer use of the remote control, the Final Rule will *require* that the remote control is supplied with batteries and uses standard technology and codes commonly used by television manufacturers as part of remote controls provided with television receivers. The standard codes for the remote control will be included in the CECB instructions so consumers can, at a minimum, program an existing remote control to turn on and off both the converter box and their existing analog television receiver. The Final Rule will also *permit* the manufacturer to provide a programmable remote control which can accept the code of the consumer's existing analog receiver and related video/audio equipment. **h. Program Information Displays (Electronic Program Guide)** 71. Many commenters raised the issue of whether the inclusion of an electronic program guide would disqualify a converter from being eligible for the Coupon Program. The Joint Industry Comments stated that the requirement that broadcasters transmit program content information is included in the FCC's adoption of the ATSC A/65 standard regarding transmission of Program System Information Protocol (PSIP), including program content details in digital television broadcast signals. They felt that this requirement “is premised on the FCC's conviction that a mechanism for locating digital channel and program content, including multicast channels, is an integral feature of the digital television experience.” 123 123 Joint Industry Comments at 16-17; *see also* 47 CFR 73.682. 72. The inclusion of an electronic program guide was supported by television receiver manufacturers Samsung, Thomson and LG Electronics. LG Electronics noted that “[e]ase of use is particularly important given the ability of digital broadcasters to transmit multiple program streams ( *i.e,* multicast) via their DTV signals.” 124 CERC recommended that the converter boxes contain program guides and the capability to process PSIP data because such features may be of assistance to consumers that are inexperienced in finding and tuning digital channels. They also note that the components and software for displaying PSIP data are commonly included in the manufacture of televisions. 125 124 LG Comments at 7. 125 CERC Comments at 10. 73. Gemstar-TV Guide International (“Gemstar”) requested that NTIA permit the inclusion of hardware and software that would enable a consumer to receive Gemstar's TV Guide On Screen electronic program guide or other third-party guides. Gemstar notes that distribution of television program information is required by the A/65 standard, which defines the PSIP. The PSIP also includes information about the multicast channels and contains the parental control (V-chip) information required by the FCC. Gemstar further notes that many televisions are equipped with built-in capability to receive and display Gemstar's TV Guide On Screen service. Gemstar stated that it is working with the Society of Cable Telecommunications Engineers regarding the Digital Video Standard 706 “VBI-in-MPEG” which will allow carriage of existing analog standard definition video VBI signals in digital broadcast transmissions. 126 126 Gemstar Comments at 6-8. 74. RadioShack sought clarification that it would be permissible to include full PSIP capability and noted that over-the air television viewers will see the number of broadcast channels increase fourfold and thus having the television appropriately display the channels is an important feature for these viewers. RadioShack also noted that because the functionality is imbedded in chips already, providing this functionality adds no cost to the box. 127 127 RadioShack Comments at 20. 75. After reviewing the comments received on the NPRM, NTIA *requires* that the converter box receive, decode and display information contained in the PSIP broadcast pursuant to the A/65 standard. NTIA notes that television receivers must decode the PSIP in order to display the parental controls required by the FCC. The basic capability of decoding PSIP information, therefore, is already required of all converter boxes. Moreover, with PSIP functionality incorporated in ATSC tuner chips, it would be costly and impractical to require manufacturers to build converters without such functionality. 76. Further, NTIA will *permit* , but not require, a CECB to display other electronic program information. As noted by many of the commenters, this capability will assist the consumer in navigating through the many channels that will be provided by digital broadcasters. NTIA believes the means to achieve such electronic program information should be left to the judgment of individual receiver manufacturers who will be *permitted* to make hardware and software modifications necessary to display electronic program information. **i. Software Upgrades** 77. Several commenters recommended that NTIA require that a CECB be capable of receiving software updates from an over-the-air terrestrial broadcast distribution service. 128 Update Logic noted that the converter boxes are essentially small computers which contain a set of software programs, software that has bugs and needs updates. They also noted that in everything from PCs to cell phones to ATMs, routine and multiple software upgrades have been installed to fix errors, improve quality and maintain functionality. The converter box will be no different. 129 128 Letter from Members of the House Energy and Commerce Committee at 2 (CECBs should have the capability to be updated, modified, or repaired in circumstances where problems arise). 129 Update Logic Comments at 1. 78. CBA noted that digital television technology is likely to advance in the not-too-distant future, as equipment manufacturers seek to make the system more robust and efficient. If upgrade capability is forbidden, then the boxes that qualify for subsidies may become obsolete and may be discarded before the end of the useful life of their electronic components. In no event should the program impose a restriction that will shorten the useful life of the product. 130 130 CBA Comments at 6-7. 79. NCAM echoed these comments and added that over-the-air software download mechanisms are available to assure the continuing successful operation of the boxes and should be required as part of the maintenance program that should also be put in place by manufacturers of the devices. Software downloads will accommodate any potential future changes to emergency alerting, closed captioning or V-chip parental control ratings as they may develop. 131 Both the NAF and the National Council of Women's Organizations reiterated that converter boxes should have the capability of receiving software downloads to repair problems and make necessary updates. 132 131 NCAM Comments at 4-5. 132 NAF Comments at 7; NCWO Comments at 1. 80. National Datacast indicated that an industry standard for software downloads exists. “The broadcast and CD industry anticipated the need for firmware updates and created the ATSC ‘Software Data Download Specification' (A-97) which was ratified in 2004.” 133 133 National Datacast Comments at 1. 81. After reviewing these comments, NTIA believes that the automatic software download and upgrade capability proposed by the commenters is a desirable feature that could materially ease the consumer's use of the CECB. The use of automatic software upgrades could benefit both manufacturers in updating software and the users in upgrading a CECB's authorized features. It is NTIA's understanding that this automatic software update feature was only recently field tested and is not currently commercially available, even in expensive television receivers 134 NTIA is reluctant to require that manufacturers include in a CECB this new technology which is just emerging from field tests. The Final Rule will, therefore, *permit* a CECB to receive and decode software pursuant to ATSC Standard A-97. 134 Field tests were completed of the “UpdateTV” technology in July 2006 and the service is expected to be commercially available in 2007. Update Logic Comments at 5. **j. Energy Specifications** 82. In response to its request for comments on whether and to what extent NTIA should consider energy usage in determining eligibility criteria, 135 several comments urged NTIA to either adopt minimum requirements or, on a permissive basis, encourage manufacturers to incorporate certain energy efficiency features. In addition to several comments generally urging NTIA to address energy usage, three areas of specific recommendations emerged from the comments:
(1)an automatic power down feature and maximum power level for converters in “sleep” or standby mode;
(2)a maximum power level in the “on” or operating mode; and
(3)the effect of an NTIA energy specification on various state regulations and proposals. 135 NPRM, 71 FR at 42,070. 83. The majority of comments support adoption of some type of energy usage requirement into the eligibility criteria for CECBs. 136 With respect to NTIA's proposal to consider the CECB's cost, comments advised NTIA to consider that energy costs could raise the box's overall cost. According to the American Council for an Energy-Efficient Economy (ACEEE), a converter without energy usage limits of any kind would cost “more than two times more to operate over its estimated 5 year life than its estimated $40-$50 purchase cost.” 137 Comments assert that energy standards for CECBs would reduce the energy cost for U.S. consumers, thereby lowering the overall cost of ownership. 136 Natural Resources Defense Council
(NRDC)Comments at 4; American Council for an Energy-Efficient Economy (ACEEE) Comments at 1; Letter from Members of the House Energy and Commerce Committee at 2. 137 ACEEE Comments at 1. 84. The record suggests that significant operating cost and energy savings could be achieved by requiring CECBs to include an auto power-down feature and standby power limits. The Environmental Protection Agency
(EPA)estimated that televisions are not in use in typical households for 18-20 hours per day, yet converter boxes may remain on during that time if no one turns them off or if there is no automatic power-down feature. 138 The EPA urged NTIA to require an auto power-down feature, to mandate that products be shipped with the feature enabled, and also suggested an auto power down feature after four hours of user inactivity, combined with a one watt power limit in standby mode. 138 EPA Comments at 2. 85. A supplementary comment was received from the Joint Industry Comments with the additional support of the Natural Resources Defense Council
(NRDC)and the CERC 139 requesting NTIA adopt two energy use performance specifications:
(a)converters shall use no more than two watts of electricity in a “Sleep” state, and
(b)converters shall meet an automatic power-down requirement after four hours of inactivity. 140 The Joint Industry Energy Comment also recommended these settings be enabled at the factory as default settings that could be changed by the consumer. 141 139 Letter of CERC, The Association for Maximum Service Television, Inc., National Association of Broadcasters, and Natural Resources Defense Council to Honorable John M.R. Kneuer, (Joint Industry Energy Comments) (Oct. 25, 2006). 140 This measurement is in accordance with industry standard, CEA 2013-A. 141 Joint Industry Energy Comments at 4. 86. Walmart also supported an automatic standby mode after four hours with a maximum allowable standby level of two watts. 142 The standby energy level of two watts is also consistent with the CEA's voluntary standard CEA-2013 and is appropriate for the narrow purposes of the converter coupon program. 143 No comments opposed adoption of a four-hour standby trigger or a two watt standby energy level. NTIA believes that consumers will benefit significantly from an automatic power-down feature triggered after four hours of inactivity and a “sleep” state operating power level of two watts. Therefore, NTIA will *require* these performance capabilities for eligible converters. 142 Walmart Comments at 2; *see also* NRDC Comments at 4; ACEEE Comments at 1. 143 CEA Standard 2013, Digital STB Background Power Consumption. 87. ACEEE calculated that significant cost savings could be realized through capping a CECB's operating power limits at eight watts, a reduction from an estimated 17 or 18 watts. 144 No other comments suggested an operating limit be imposed. Walmart stated that while it is “very supportive of efforts to reduce the ‘On-mode' power use due to the additional energy savings they can provide, we are deferring such discussions to other policy forums such as ENERGY STAR and state standard setting procedures.” 145 144 *See* EPA Comments at 2; ACEEE Comments at 1. 145 Walmart Comments at 2. 88. We are aware that, on January 31, 2007, the EPA's ENERGY STAR program adopted voluntary specifications for converter boxes. The EPA's voluntary specifications include one watt power consumption during the “sleep” mode and also include eight watt power consumption during the “on” mode. 146 NTIA's requirements for a CECB include two watt power consumption during the “sleep” mode, and does not include a specification for power consumption during the “on” mode. NTIA urges manufacturers participating in the Coupon Program to adopt those ENERGY STAR specifications. 146 The EPA ENERGY STAR specifications are available on the Internet at *http://www.energystar.gov/ ia/partners/product_specs/ eligibility/dtas_elig.pdf* . 89. Some comments assert that cost savings could be achieved by adopting a single, national pre-emptive energy consumption standard. 147 These parties are concerned that by permitting states to enact their own energy efficiency standards for converter boxes, the cost would rise for all converter boxes as manufacturers attempt to design, manufacturer, test and distribute boxes that comply with varying requirements of individual states. Motorola generally opposed including energy standards into the regulations, but said that to the extent that an energy requirement is considered, it should be instituted at the Federal level and not the state level to avoid inconsistent and costly requirements. 148 147 Joint Industry Energy Comments at 20; LG Comments at 11; Walmart Comments at 2; CERC Comments at 11; APTS Comments at 30. 148 Motorola Comments at 3. 90. NTIA is adopting these performance capabilities solely for the purpose of implementing the Coupon Program and does not intend to influence any other Federal or state agency activity regarding energy efficiency guidelines or requirements for CECBs. Converter boxes are not yet commercially available and manufacturers are willing to design and produce them as new products with these energy efficiency requirements. 149 NTIA is also persuaded by those comments regarding the cost savings that can be achieved by converter boxes that incorporate energy efficient standards. 149 LG Comments at 11-12; Thomson Comments at 6. **k. Other proposals regarding the converter box specifications.** 91. KTech, a manufacturer of DTV equipment, provided several recommendations regarding features of the CECB. KTech recommended that the CECB contain a LED power light to allow users to determine if the external power is connected to the unit. KTech noted that “a ‘power-good' display function [should be] allowed on the converter as a possible health and status display of the unit.” 150 NTIA has determined that a power light LED will be useful to consumers in the operation of the CECB, and the Final Rule will *require* a power light indicating when the unit is turned on. 150 KTech Comments at 4. 92. KTech believes that, as written, the NPRM only permits an antenna input and does not state that an external AC/DC power input connector is allowed on the CECB. In the Final Rule, NTIA clarifies the power input connections and also responds to several comments regarding the use of battery power. Brittain noted that, as a safety measure, “many people have a second, battery-operated TV for use if the power goes out; virtually all of these are analog, and it will likely be years before similar DTVs are available at an affordable price.” He recommended that the Final Rule “should be written so as not to prohibit battery-powered boxes, which would be a necessity for battery-powered TVs.” 151 Because of the public interest benefit, the Final Rule, therefore, *permits* , but does not require, manufacturers to provide converter boxes that operate on battery power as well as those which use an external AC/DC power input. 151 *See* Richard Brittain Comments. 93. KTech also recommends that NTIA require that the CECB display a variety of technical measurements to assist consumers in improving television reception. KTech notes a variety of possible reception impairments ( *e.g.,* multi-path interference and signal blockage). KTech recommends that the CECB display test measurement results for RF power level expressed in dBm, measured Signal-to-Noise Ratio number expressed in dB, measured Bit Error Rate and other technical measurements that could aid the consumer in taking steps to improve signal reception. 152 152 KTech Comments at 4. 94. NTIA recognizes that television signal reception for some consumers will present challenges, whether analog or digital. As discussed earlier, to assist consumers in improving signal reception, the Final Rule permits the inclusion of a smart antenna interface in the signal box. NTIA notes that the A/74 guidelines states that “[t]he capability to display received signal quality conditions on a quasi-real time basis is a feature that should be included in all digital broadcast receivers.” To further assist consumers in improving signal reception, we include in the Final Rule provisions that *require* manufacturers to include software which will display on the television receiver signal strength and *permit* the display of other operating parameters chosen by the manufacturer. Display of signal information on the television receiver will provide information to the consumer at minimal cost. NTIA will not, however, specify exactly what such signal-quality information should contain. NTIA will follow the guideline of A/74, that “[m]eans to achieve such signal quality indications should be left to the judgment of individual receiver manufacturers.” 153 153 Advanced Television Standard Committee, Standard A/74, section 4.7 “Consumer Interface-Received Signal Quality Indicator.” 95. Brittain recommends that the CECB come with a Type F cable to connect the RF output of the converter box to the RF input of the television receiver. 154 Because most consumers who purchase a CECB will require at least a cable of this type, we believe that such an RF cable is integral to the use of the converter and should be required. The Final Rule will, therefore, *require* that manufacturers supply an RF cable and also *permit* manufacturers to supply additional cables, such as a cable with three RCA connectors, if they desire. 154 Richard Brittain Comments. F. Manufacturer Certification 96. In the NPRM, NTIA proposed that manufacturers self-certify that their CECBs meet NTIA's performance specifications and reserved the right to test CECBs that have been self-certified to ensure that they meet NTIA's technical eligibility requirements. 155 NTIA sought comment on this proposal and other compliance testing and verification procedures that could be used for the Coupon Program. 155 NPRM, 71 FR at 42,070. 97. Several commenting parties referred to the FCC's well-established three-tiered approach for Equipment Authorization. 156 Most supported NTIA's proposal that, after successful testing, manufacturers self-certify that their CECBs meet the NTIA eligibility features and functionality; some recommended that the manufacturer's test results be submitted to a third party for an independent level of review. 157 Most parties felt that “certification,” the most stringent level of FCC technical approval, applicable to new technology, computers, cell phones and other non-television products, was inapplicable to CECBs. Motorola said that a third-party certification process would decrease the amount of time available for product development and would increase the costs of bringing the device to market. 158 RadioShack opposed government testing of each model certified as it would burden manufacturers and delay product introduction. 159 156 “Verification” or self-certification; “Declaration of Conformity” which requires testing by third-party laboratories selected from an accredited list; and “Certification” under which the FCC itself tests products prior to approval. The procedures are described at *http://www.fcc.gov/oet/ea/procedures.html#sec1* . 157 Thomson Comment at 7; LG Comments at 10; CERC Comments at 10-11; Funai Comments at 12-13. 158 Motorola Comments at 2. 159 RadioShack Comments at 21. 98. Most commenters supported an approval process proposed by the Joint Industry Comments, termed “ *verification plus* .” The Joint Industry Comments stated the following: Rather than developing a new and untested conformity assessment program, the Joint Industry Commenters urge that NTIA leverage the existing resources of the FCC, the longstanding expert agency in this area, to conduct an efficient and accurate conformity assessment process. Specifically, NTIA should adopt a “verification plus” process, based on the FCC's present, well-established and well-understood verification procedures. Under these procedures, manufacturers would be responsible for conducting compliance testing at their own facilities or through an independent laboratory contracted by the manufacturer. This process would ensure efficiency and avoid delays that would occur if the FCC or any other third-party entity were required independently to test every converter box. To ensure the integrity of the program, however, the FCC, most likely through its Office of Engineering and Technology, should have the ability to be involved in the approval process before the devices are released to market. To this end, manufacturers should be required to submit their test results, along with appropriate samples of the tested equipment, to the FCC. The FCC should then review test results to ensure conformity between the converter boxes and the NTIA's performance standards which themselves are based on standards endorsed by or known to the FCC. If the FCC does not alert NTIA and the manufacturer of any problem within 15 days of when the data were submitted, the device should automatically qualify for the program. If the FCC does issue notification of a problem, however, it should expedite its own testing and rapidly notify NTIA and the manufacturer of any noncompliance. 160 160 Joint Industry Comments at 21-22. 99. NTIA will adopt the FCC's verification process as the core of its technical acceptance plan to identify CECBs. As noted, several stakeholders in the Coupon Program, including manufacturers, retailers and broadcasters, support this proposal. This approval process will not unduly burden manufacturers and will not add significant costs or delay to the development and production of CECBs. 100. NTIA believes it is not procedurally sound for converters to become “automatically” eligible for the Coupon Program without agency confirmation. While manufacturers may market any converter or other device including digital-to-analog decoding functionality outside of the Coupon Program, NTIA intends to use a central electronic tracking database to track retailers' point-of-sale
(POS)transactions including authorization of coupon redemptions and sales data of CECBs. 161 Action is required, therefore, by NTIA to load and update eligibility data ( *e.g.,* product SKU) for each model approved by NTIA. 161 Letter from Members of the House Energy and Commerce Committee at 3 (coupon program should be designed so that retailers can provide updated information concerning the inventory of converter boxes in order to remedy supply difficulties promptly). 101. Therefore, the Final Rule requires manufacturers to conduct tests or have independent laboratories conduct tests to demonstrate that each converter model meets the features and performance specifications set forth in our regulations for CECBs. It also requires manufacturers to provide detailed certified test results along with a sample of the tested equipment to NTIA and its designee. NTIA has entered into an agreement with the FCC by which the FCC may review the manufactures' converter box test results submitted to NTIA. The FCC may test converter boxes, if necessary. NTIA will base its decision to approve each converter box upon its consultation with the FCC. A Public Notice will be published subsequent to issuance of the Final Rule to provide manufacturers with specific address and contact information regarding the required submission of these materials. NTIA will record the date test results and sample models are received and will notify the manufacturer of the date by which the agency intends to make a determination of eligibility. In general, NTIA will attempt to ensure that the review of test results and any additional testing are completed within the 15-day period proposed by the Joint Industry Comments. As promptly as possible, NTIA will issue a statement of eligibility or non-eligibility for each converter model submitted by a manufacturer. The agency will attempt to meet demand, although the pacing of manufacturer submissions may be uneven. Because it is impossible to determine at this time how many manufacturers will submit test results and equipment, whether multiple models will be built by each manufacturer, and when converters will be proposed for inclusion in the Coupon Program, NTIA must allow flexibility to establish the appropriate time frame for agency review. As noted above, NTIA will promptly include make and model number information in its POS data, consumer education materials and other files used to identify CECBs. 102. Finally, NTIA reserves the right to test CECBs. As an additional means to ensure that converters made available to the public as part of the Coupon Program meet NTIA's technical specifications, NTIA may select converters to test at any time during the course of the Coupon Program. If a converter box appears not to meet NTIA's technical specifications, NTIA will follow a process similar to that used by the FCC in consulting with the manufacturer. If a converter box model is subsequently found not to meet the features and performance specifications set forth in the Final Rule, that model will no longer be eligible for the Coupon Program. G. Retailer Participation 103. In the NPRM, NTIA noted that participation by retailers in this program would be voluntary, and that NTIA would not compensate retailers that choose to participate. Given the nature of the program, NTIA proposed to permit consumers to redeem coupons at retailers that have established production and distribution channels and who have demonstrated that they can redeem coupons expeditiously and efficiently. 162 NTIA proposed to require retailers to adhere to and enforce coupon restrictions such as prohibiting coupon holders from using two coupons in combination towards the purchase of a single CECB and prohibiting consumers from using coupons to purchase any device other than an eligible converter box, pursuant to these regulations. NTIA proposed to reimburse retailers within 60 days after receiving sales information related to CECBs. 163 162 NPRM, 71 FR at 42,070. 163 *Id* . 104. Several comments were received from retail companies, organizations and members of the public addressing these proposals and raising other issues affecting retailers. NTIA believes that the regulations of this one-time program should not discourage retailer participation. Some comments noted that there has not been a government-sponsored program involving retailers quite like the Coupon Program, but that other government programs such as the USDA's Food Stamps and Women, Infants and Children's benefits may provide examples for NTIA to follow. 164 164 RadioShack Comments at 2-3. 105. Commenters made recommendations and asked NTIA for clarification with respect to
(a)retailer obligations to predict or meet demand for CECBs;
(b)legal liability and additional operating costs for retailers who voluntarily participate in the program;
(c)the timing for retailers to be ready to redeem coupons;
(d)need for confidential treatment of sales data;
(e)retailer certification criteria and procedures;
(f)payment terms to retailers; and
(g)consumer and retailer appeals. **a. Retailer Obligations to Predict or Meet Demand** 106. CERC stated that retailers and manufacturers should not be subject to sanction for an inability to predict or meet demand. They pointed out that the demand for converters may peak in the millions and then drop toward zero, all within a period as short as 90 days. At the end of the Coupon Program, excess inventory may be unsellable at any price. 165 RadioShack opposed an obligation on the part of the retailer to maintain inventory in all stores at all times because it would be burdensome and perhaps impossible to meet such a requirement. 166 165 CERC Comments at 4. 166 RadioShack Comments at 16. 107. NTIA recognizes that the product cycle for converters is unknown and perhaps atypical of consumer electronics products generally. Furthermore, NTIA does not want retailers to decline to participate because they feel that our requirements are too burdensome or unrealistic. Therefore, NTIA will clarify that retailers are expected to follow commercially reasonable practices in ordering and managing inventories of CECBs. 108. CERC raised a related point in response to NTIA's proposal that retailers accept the obligation “to honor all valid coupons that are tendered in the authorized manner.” 167 A reasonable interpretation, according to CERC, is that a retailer will honor valid coupons “if the retailer is offering subsidized Converters for sale at the time the coupon is presented by the consumer.” 168 NTIA agrees and will not expect retailers to attempt to redeem coupons if they have no CECBs available for sale. 167 *See* NPRM, 71 FR at 42,070. 168 CERC Comments at 11. **b. Legal Liability and Additional Cost for Retailer Participation** 109. CERC described NTIA's statement in the NPRM that retailers must certify “under penalty of law” as “insufficiently vague to offer guidance yet daunting in their possible consequence.” 169 CERC stated that any interested retailer would reasonably want to be fully aware of the potential for liability, to third parties as well as to the government, before agreeing to participate. 170 Similarly, RadioShack asked us to clarify what was meant that retailer certification statements would be made “under penalty of law.” They suggested that penalties “would only apply to intentional efforts to defraud the program and that unintentional non-compliance or error would not be subject to penalties.” 171 169 CERC Comments at 12 ( *quoting* NPRM, 71 FR at 42,070). 170 *Id* . 171 RadioShack Comments at 16. 110. The Act did not include any specific government remedies or civil or criminal penalties for violations or non-compliance with the statute or the regulations promulgated by NTIA thereunder. Retailers should be aware, however, that other statutes provide for civil or criminal penalties for wrongdoing in connection with federal programs such as the Coupon Program. 172 For example, the False Claims Act establishes penalties for “any person who knowingly presents, or causes to be presented, to an officer of employee of the United States Government . . . a false or fraudulent claim for payment or approval.” 173 NTIA clarifies that it does not intend to sanction retailers for unintentional non-compliance or error. NTIA encourages retailers and other participants in the Coupon Program to familiarize themselves with the laws that impose liability for making false statements to the Federal government, for making false claims, or engaging in other activities that violate Federal law. 172 *See e.g.,* 18 U.S.C. 1001 (“False Statement Statute”); 31 U.S.C. 3729 (False Claims Act). 173 31 U.S.C. 3729(a). 111. CERC and other commenters expressed concern that they may incur substantial costs to participate in the program. CERC stated that the “[c]onverter is a unique, limited occasion product that is likely to be subject to unique laws of supply, demand, and subsidy. As a matter of public policy, there are simply too many novel costs and risk factors, and imponderables, for NTIA to place these investments, expenses, and risks solely on the backs of retail vendors who come forward to participate in this program.” 174 The electronically trackable coupon will necessitate custom changes to retailers' point of purchase systems. RadioShack added that “[i]n a normal retail environment, a retailer would likely consider this cost as an investment, amortized against the sales life of the many products sold in its stores. . .[But] there is nothing against which to amortize this cost - - the shelf life of the eligible converter box is as short as the 18 months of the program and the system upgrade is only required for the purchase of the few models of eligible converter boxes.” 175 Best Buy also pointed out that their “current electronic processing systems are not able to limit an Electronic Coupon Card to a single product purchase.” 176 174 CERC Comments at 11. 175 RadioShack Comments at 17. 176 Best Buy Comments at 2. 112. CERC stated that it would be prudent to use some of the administrative funds authorized for the Coupon Program for “NTIA's contract(s) with its vendor(s) to provide—in light of the apparent inadequacy of existing commercial channels—for the distribution of the necessary software and other system support to participating retailers as an included cost of the program.” 177 RadioShack said such payments could be “considered analogous to the manufacturers' common payment to retailers of fees for the handling of their manufacturing coupons.” 178 In the NPRM, NTIA stated that it will not compensate retailers for participating in the program. NTIA maintains that it does not intend to compensate retailers directly for participation in the program. NTIA, however, fully intends to distribute and process coupons consistent with reasonable commercial practices that do not place undue burdens on participating retailers. 177 CERC Comments at 11. 178 RadioShack Comments at 17. **c. Timing of Retailers to be Ready to Redeem Coupons** 113. Best Buy urged NTIA and its contractor to “avoid the holiday months of October, November, December and January to require participating retailers to implement or upgrade any POS systems.” 179 Best Buy stated that because these months include the heaviest shopping traffic and volume of transactions of the year, it could not risk any costly down time of its systems or employees caused by complicated upgrades. 180 CERC said that “once into the holiday shopping season, it would be very difficult for retailers to modify their point of sale and other hardware and software systems so as to be ready by January 1, 2008.” 181 179 Best Buy Comments at 2. 180 *Id* . 181 CERC Comments at 4. 114. NTIA reiterates that it is its intent to establish regulations and procedures that are reasonable and practical in light of commercial constraints. The Act requires NTIA to accept requests for coupons between January 1, 2008 and March 31, 2009, and thus, it proposed that retailers be ready to redeem coupons starting January 1, 2008, consistent with the statutory guidance. NTIA expects widespread retailer POS system modifications to occur in the first quarter of 2008. **d. Confidential Treatment of Sales and Inventory Data** 115. Consistent with the legislative history regarding measures to reduce fraud and abuse, NTIA intends to establish a system for coupon redemption that is easily audited. 182 NTIA will need to ensure that only valid coupons are redeemed by those actually requesting them, how many CECBs are being sold, how many are available in the market, and how demand is pacing for the program's initial and contingent funding. NTIA will need cooperation from retailers to provide reports of that nature. CERC pointed out that NTIA will receive “sales data, pertaining to individual retailers and manufacturers, that ordinarily would be held confidential by these entities. Accordingly, it will be necessary to protect the non-aggregate sale data of particular retailers and their vendors, as highly confidential.” 183 RadioShack urged NTIA to clarify that its vendor “will retain such proprietary information confidentially” and that it will “not be released to the public or to other retailers or manufacturers.” 184 182 *See* Conf. Rep. at 202. 183 *Id* . at 12. 184 RadioShack Comments at 15. 116. Again, because NTIA wishes to encourage participation by a wide range of retail entities in the Coupon Program, competitively sensitive or proprietary information provided by retailers in non-aggregated form to NTIA will be treated confidentially consistent with federal law and regulations, including Freedom of Information Act requests and court orders. **e. Retailer Certification and Procedures** 117. Commenting parties generally supported NTIA's proposal that retailers comply with specific requirements by certifying that they will:
(1)provide information to customers about the necessity for and the installation of a CECB;
(2)have in place systems that can be easily audited as well as systems that have the ability to prevent fraud and abuse in the Coupon Program;
(3)are willing to be audited at any time during the course of the Coupon Program;
(4)have the ability to electronically provide NTIA with sales information related to coupons used in the purchase of CECBs, specifically tracking each serialized coupon by number with a corresponding certified converter box purchase; and
(5)will only submit coupons for redemption as a result of purchases of CECB models certified by NTIA. 185 185 NPRM, 71 FR at 42,070. 118. CERC stated that certification should entail representations by retailers that they have “established production and distribution channels and have demonstrated that they can redeem coupons expeditiously and efficiently.” 186 Radio Shack urged NTIA to require participating retailers “to demonstrate that they have experience in consumer electronics retail.” 187 186 CERC Comments at 11. 187 RadioShack Comments at 15. 119. NTIA agrees that retailers must have experience in consumer electronics retail sales sufficient to support the sale of CECBs as an additional CE product. We do not think that this program is appropriate for brand new ventures, either of the bricks and mortar type or online sellers. NTIA agrees with CERC that demonstrated capabilities as to staff, training, capacity to carry inventory and to order and take delivery of CECBs through commercial channels is important. 188 As a result, retailers will need to certify that they have been engaged in the consumer electronics business for at least one year prior to their application. This requirement may be waived by NTIA upon a showing of good cause. A determination of “good cause” will be based on a showing of what is the best interest of the coupon program. This application process will provide NTIA with information well in advance of the 2008 launch of which retailers will participate and what markets will be served. 188 CERC Comments at 11. 120. The comments from retailers were unanimous that NTIA should dispense with the proposed consumer certifications regarding eligibility. CERC said that the two per household limit “can be complied with by the simply electronic means of not allowing the system to allocate more than two coupons to any specific household address.” 189 RadioShack said that “fraud would be minimized by use of an electronic coupon card” with several suggestions on how the request, distribution, and redemption system would work. 190 NTIA agrees that an electronically trackable system will enable NTIA to reduce the chance that no more than two coupons are sent to a given household. NTIA agrees that retail employees should not be placed in the position of having to judge whether a particular customer is eligible to purchase the product. However, NTIA expects retailers to report suspicious patterns of customer behavior to NTIA. Recognizing that many scenarios may exist for fraudulent activity, NTIA will leave it to the retailer's discretion as to the type of behavior that requires notification to NTIA. 189 CERC Comments at 9. 190 RadioShack Comments at 10-11. 121. Some commenters addressed the need for retailers to provide information to customers about converter boxes. In support of NTIA's proposal, RadioShack said that retailers should be required to demonstrate that their sales people have received “specific training on the necessity for and use of the converter box so that consumers can ask questions and receive accurate answers. [B]ecause the need for specific features and capabilities will vary based on the age and location of televisions, knowledgeable sales people are essential to the success of the converter box program.” 191 Best Buy said that “[w]hile it is reasonable to expect participating retailers to inform consumers on which converter boxes are eligible for the coupon subsidy, they should not be legally required to invest in displays, placards, or advertisements. Retailers should be allowed flexibility to incorporate the list of eligible converters into existing consumer education and communications plans and materials at their own discretion.” 192 NTIA agrees and will not specify how retailers are to market or promote CECBs. 191 RadioShack Comments at 15. 192 Best Buy Comments at 3. **f. Payment Terms.** 122. NTIA proposed that retailers participating in the Coupon Program would be required to present to the Government coupons for payment within 30 days of the redemption transaction and retain hard copies of sale information for one year, and that payment from the Government would be made to the retailer for all validly redeemed coupons within 60 days of receipt by the Government. 193 Commenting parties asserted that if an electronic system is used, there would be no need for a records retention requirement, and that the proposed 60-day payment would be unnecessarily long. 193 NPRM, 71 FR at 42,070. 123. RadioShack said that “a retailer may be reluctant to participate in the program, knowing that they are in effect lending the government $40 for each sale for at least 60 days.” 194 Instead, RadioShack suggested that “reimbursement should occur immediately upon a transaction. . . [W]ith an electronic coupon card system, the reimbursement would be automatic with the transaction, saving an endless amount of time in the transaction settlement process.” 195 194 RadioShack Comments at 16. 195 *Id* . 124. Payments from program funds to retailers will be accomplished in a commercially reasonable manner. While it may be possible for payment to occur within a day or two if an electronically trackable system is used, payments will typically be processed no later than 3 business days after the retailer submits an authorized transaction to NTIA or its contractor. For purposes of these payments to retailers, “business day” means a calendar day other than a Saturday, Sunday or a federal holiday. To ensure that vendors are paid promptly, they will be required to complete a Central Contractor Registration (CCR). CCR validates the registrant information and electronically shares the secure and encrypted data with the federal agencies' finance offices to facilitate paperless payments through electronic funds transfer (EFT). To ensure payment to the retailer and provide a closed loop audit trail, NTIA will require retailers to provide positive verification that payment has been received for authorized coupon redemption transactions. With respect to retaining hard copies of sales information for one year, in view of the decision to allow the use of ECCs, NTIA will not require retailers to retain hard copies of this information. However, for auditing purposes, sales information must be retained for at least one year and to the extent that retailers choose to retain it electronically, they should be prepared to convert it to a hard copy format if requested by NTIA. H. Consumer Education 125. Many commenters offered suggestions about effective means of educating consumers about the Coupon Program. While the program regulations will not directly address consumer education issues, NTIA will carefully consider the many commenters' advice as it develops a comprehensive consumer education campaign. In addition, the comments demonstrated the link between consumer education and other aspects of the proposed Rule, such as coupon eligibility, application process and certification of eligible boxes and participating retailers. Commenters offered many useful suggestions about educating consumers about the Coupon Program. Mindful of the need to manage our consumer education resources effectively and to work cooperatively with the consumer electronics and broadcast industry, community organizations, and the FCC, NTIA will build on the commenters' suggestions to develop a comprehensive consumer education effort. III. Procedural Matters Paperwork Reduction Act The Paperwork Reduction Act (PRA), 44 U.S.C. Chapter 35, requires federal agencies to seek and obtain OMB approval before undertaking a collection of information directed to ten or more persons. Under the PRA, a rule creates a “collection of information” where ten or more persons are asked to report, provide, disclose, or record “information” in response to “identical questions.” In the NPRM, NTIA invited comment on three information collections required for the implementation of the Coupon Program. To successfully administer the Coupon Program, NTIA requested approval on three collection requirements and reporting requirements for:
(1)The applications that households must submit to receive coupons;
(2)the certification form for retailers that will sell the converter boxes and submit coupons for redemption; and
(3)the certification form and recordkeeping and reporting requirements for manufacturers regarding converter boxes eligible for the coupon program. Specifically, comments were invited on
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility; and clarity of the information collected; and
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. NTIA received over 100 comments in response to the NPRM. There were no comments submitted specifically with respect to the information collection and recordkeeping requirements. The comments to the NPRM and the analysis to the NPRM, however, resulted in changes or modifications from the proposed rule to the Final Rule. Accordingly, NTIA has modified certain aspects of the information collection and reporting requirements. These modifications are discussed below.
(1)*Title:* Application for the Digital-to-Analog Converter Box Coupon *Type of Request* : New Collection *Estimate of Burden* : Public reporting burden for this collection of information is estimated to average .25 hours (15 minutes) per transaction *Respondents:* U.S. households *Estimated Number of Respondents:* 110 million *Estimated Number of Responses per Respondent:* 1 *Estimated Total Annual Burden on Respondents:* 27,500,000 hours This new information collection is for the application required to request and receive a coupon to purchase a digital-to-analog converter box. This collection of information is necessary for NTIA to provide the benefit to U.S. households as directed in the Act. In the NPRM, NTIA estimated the public reporting burden for this collection to average .25 hours (15 minutes) per respondent. The NPRM identified the respondents affected by this information collection as U.S. television households that receive over-the-air television in an analog format. The estimated number of respondents was 21 million U.S. television households. Because the Final Rule has been changed to include all U.S. households, the estimated number of respondents is 110 million. This estimate assumes that all U.S. households with analog television sets will apply for a coupon. The Final Rule requires consumers to submit the following:
(1)name;
(2)address;
(3)the number of coupons requested; and
(4)a certification as to whether they receive cable, satellite, or other pay televison service. The OMB Approval Number of the information collection will be provided in a subsequent *Federal Register* notice.
(2)*Title:* Certification for Retailer to Accept and Redeem Coupons for the purchase of a Digital-to-Analog Converter Box Coupon *Type of Request:* New Collection *Estimate of Burden:* Public reporting burden for this collection of information is estimated to average .25 hours per respondent *Respondents:* Retailers that accept coupons for digital-to-analog converter boxes *Estimated Number of Respondents:* 10,000 *Estimated Number of Responses per Respondent:* 1 *Estimated Total Annual Burden on Respondents:* 2,500 hours As part of the coupon program, retailers that choose to participate in the program by selling converter boxes must accept the coupons from consumers and then seek reimbursement from the Federal Government. The Final Rule requires retailers that wish to participate in the program to submit a form to the agency which requires them to self-certify to that they:
(1)have been engaged in the consumer electronics retail business for at least one year;
(2)have completed a Central Contractor Registration;
(3)have in place systems that can be easily audited as well as systems that can provide adequate data to minimize fraud and abuse in retail redemption and government payment for coupons;
(4)agree to have coupons box sales audited at any time during the term of participation in the coupon program by the U. S. Government or an independent auditor at no expense to the retailer;
(5)will provide NTIA electronically with redemption information and payment receipts related to coupons used in the purchase of converter boxes, specifically tracking each serialized coupon by number with a corresponding converter box purchase;
(6)agree only to accept coupons for, and receive payment from authorized purchases made for CECBs. The OMB Approval Number of the information collection will be provided in a subsequent *Federal Register* notice.
(3)*Title:* Certification of Digital to Analog Converter Box *Type of Request:* New Collection *Estimate of Burden:* Public reporting burden for this collection is estimated at 1.25 hour per respondent *Respondents:* Companies that manufacture digital to analog converter boxes who request NTIA certification *Estimated Number of Respondents:* 10 *Estimated Number of Responses per Respondent:* 1 *Estimated Total Annual Burden on Respondents:* 12.5 hours Manufacturers that wish to participate in the program must submit a notice of intent to NTIA at least three months prior to submitting test results and sample models of converter boxes. The notice shall include a brief description of the proposed converter box, including permitted as well as required features, and the date which the proposed converter box is expected to be available for testing. The notice of intent shall supply the name, title and address and phone number of an individual responsible for the manufacturer's submission. When the manufacturer submits its converter box to NTIA, it shall also provide test results along with a certification of the testing supervisor as to their authenticity, completeness, and accuracy. The OMB Approval Number of the information collection will be provided in a subsequent *Federal Register* notice. Executive Order 12866 This Final Rule has been determined to be economically significant for purposes of Executive Order 12866; and therefore, has been reviewed by the Office of Management and Budget (OMB). In accordance with Executive Order 12866, and Economic Analysis was completed outlining the costs and benefits of implementing this program. The complete analysis is available from NTIA upon request. Executive Order 12988 This Final Rule has been reviewed under Executive Order 12988, Civil Justice Reform. NTIA has determined that the rule meets the applicable standards provided in section 3 of the Executive Order, to minimize litigation, eliminate ambiguity, and reduce burden. Congressional Review Act This rule has been determined to be major under the Congressional Review Act, 5 U.S.C. 801 *et seq* . Regulatory Flexibility Analysis As required by the Regulatory Flexibility Act, an Initial Regulatory Flexibility Analysis
(IRFA)was prepared and published with the NPRM. 196 A copy of the IRFA was provided to the Chief Counsel for Advocacy of the Small Business Administration. Although NTIA specifically sought comment on the costs to small entities of complying with the Final Rule, no commenters provided specific cost information. NTIA has carefully considered whether to certify that the Final Rule will not have a significant impact on a substantial number of small entities. NTIA continues to believe the Final Rule's impact will not be substantial in the case of small entities. However, NTIA cannot quantify the impact the Final Rule will have on such entities. Therefore, in the interest of thoroughness, NTIA has prepared the following Final Regulatory Flexibility Analysis
(RFA)with this Final Rule in accordance with the Regulatory Flexibility Act. 197 196 *See* NPRM, 71 FR at 42,072, Appendix A. 197 *See* 5 U.S.C. § 604. *1. Succinct Statement of the Need for, and Objectives of the Rule:* NTIA is issuing this Final Rule because of a statutory mandate to create and implement a coupon program that will affect the public under Section 3005 of the Digital Television Transition and Public Safety Act of 2005. 198 The Act requires the Federal Communications Commission
(FCC)to require full-power television stations to cease analog broadcasting after February 17, 2009. After that date, households using analog-only televisions will no longer be able to receive over the air television broadcasts unless the television is connected to a converter box that converts the digital signal to analog format. As a result, the Act authorizes NTIA to create a program whereby U.S. households can apply for $40 coupons to be used towards the purchase of digital-to-analog converter boxes. 198 *See* Title III of the Deficit Reduction Act of 2005, Pub. L. 109-171, 120 Stat. 4, 21 (Feb. 8, 2006). The Final Rule sets forth a framework to implement the coupon program as authorized by the Act. The Final Rule also provides clear guidance for consumers, manufacturers, and retailers regarding eligibility, responsibilities, and certifications. *2. Summary of the Significant Issues Raised by the Public Comments in Response to the IRFA; Summary of the Assessment of the Agency of Such Issues; and Statement of Any Changes Made in the Rule as a Result of Such Comments:* The only comments that directly responded to the IRFA were those submitted by Stored Value Systems, Inc. (Stored Value), although other comments submitted in response to the NPRM addressed issues raised in the IRFA. 199 Stored Value commented on the IRFA section regarding “Alternatives to Minimize Burdens.” In that section, NTIA stated that the proposed self-certification by retailers for certain compliance requirements was less burdensome than other alternatives such as requiring third-party compliance, or instituting a process whereby NTIA certified compliance. 200 NTIA stated that either of those options would involve additional steps in the certification process and would therefore increase time and cost. 201 Although Stored Value agreed with our analysis, it added that “not pursuing either option would not necessarily relieve the program or associated stakeholders with conducting similar additional steps and most likely would add even increased time and cost, or possible program delay.” 202 NTIA maintains that a third-party certification of retailer credentials would add costs and delay implementation of the program. The Final Rule, therefore, permits retailers to provide self-certification as to the program requirements. 199 *See* Stored Value Comments at 46. 200 *See* NPRM, 71 FR at 42,074, Appendix A. 201 *Id.* 202 Stored Value Comments at 46. *3. Description and Estimate of the Number of Small Entities to Which the Rule will Apply Or an Explanation of Why no Such Estimate is Available:* The RFA requires agencies to provide a description and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available. 203 Under the RFA, the term “small entity” has the same meaning as the terms “small business,” “small organization” and “small governmental jurisdiction.” 204 To the extent that this rule affects small businesses, the affect would be on businesses in the retail or manufacture of digital-to-analog converter boxes. The Small Business Administration defines small entities in the “radio, television and other electronic stores” sector as those organizations with less than $8 million in annual revenue. 205 With respect to equipment manufacturers, the SBA defines those small entities as those with less 750 employees. 203 5 U.S.C. 604(a)(3). 204 5 U.S.C. 601. 205 *See* U.S. Small Business Administration Table of Small Business Size Standards Matched to North American Industry Classifications Systems Codes, *http://www.sba.gov/size* . As stated in the IRFA, NTIA does not have precise information on the number of qualifying small businesses that are in the manufacturing or electronic retailing sectors that would be affected by the Final Rule. The digital-to-analog converter box is not commercially available today and the life of this particular product is limited. Thus, there is no readily available data that would assist NTIA in making an estimate as to the number of “small business” retailers or manufacturers that would be affected by the regulations. Moreover, none of the comments submitted in response to the NPRM addressed the number of small entities to which these regulations will apply. According to data from the U.S. Census Bureau, there were 1014 U.S. companies in 2002 that manufactured radio and television communications equipments, and approximately 1010 of these firms were classified as small entities having fewer than 750 employees. 206 Specific figures for the number of firms that manufacture television equipment are unavailable, however, NTIA believes that some of these companies are capable of manufacturing a converter box pursuant to the standards provided in the Final Rule. In fact, several electronic equipment manufacturers submitted comments in this proceeding. There was no indication that any of these manufacturers were small businesses. To the extent that there exist small entities capable of manufacturing a converter box pursuant to the standards provided in the Final Rule, the extent to which they choose to participate in the coupon program will be a business decision and not based on any mandatory action resulting from this Final Rule. Therefore, NTIA is unable to predict with any certainty the number of small entities that will consider the coupon program an advantageous business opportunity. Moreover, the comments submitted in response to the proposed rule did not provide data that would assist NTIA in making such an estimate. 206 *See* U. S. Census Bureau, 2002 Economic Census, Industry Statistics by Employment Size, Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing (NAICS Code 334220), Table 4, available at *http//www.census.gov/econ/census02* . Likewise, it is not possible to ascertain the number of consumer electronic retailers that qualify as small entities for the purpose of this program. Certain data from trade associations, however, provide a glimpse of the type of small businesses that may participate in the coupon program. For example, the Professional Audio-Video Retailers Association
(PARA)division of the Consumer Electronics Association
(CEA)has more than 250 professional audio, video, home theater, and custom electronics specialty dealers. 207 CEA has also formed a partnership with the North America Retailers Association (NARDA), a group of independent retailers that include consumer electronics retailers that represent approximately 3,500 storefronts and accounts for over $11 billion in annual sales. 208 However, not all NARDA members may be interested in participating in the digital-to-analog converter box coupon program. In addition to consumer electronics, NARDA's members also sell and service kitchen and laundry appliances, consumer mobile electronics, computers and other home and small office products, furniture, sewing machines, vacuum cleaners, room air conditioners, and other consumer products. Moreover, NARDA's members are not limited to retailers, but also include manufacturers, suppliers and vendors. PARA and NARDA members may be specialty electronic dealers not interested in selling converter boxes. The comments submitted in response to the IRFA did not provide data that would assist NTIA in making an estimate of “small entities.” 207 *See http://www.ce.org/Membership/Divisions/98.asp* . 208 *See http://www.narda.com* . *4. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements of the Rule, Including an Estimate of the Classes of Small Entities That Will Be Subject to the Requirement and the Type of Profession Skills Necessary for Preparation of the Report or Record:* It should be noted again here that this coupon program is for a limited amount of time so there will not be any long term or recurring reporting, recordkeeping and other compliance requirements. Moreover, participation in this program is voluntary, thus any requirements would only occur if a retailer or manufacturer chooses to participate. As stated above, there is no readily available data to assist NTIA is making an estimate as to the number of “small entities” that will be subject to the requirements of the rule, and comments submitted in response to the proposed rule did not address such an estimate. A. Manufacturers The Final Rule requires manufacturers that wish to participate in the program to submit a notice of intent to NTIA at least three months prior to submitting test results and sample models of converter boxes. The notice shall include a brief description of the proposed converter box, including permitted as well as required features, and the date which the proposed converter box is expected to be available for testing. As part of this notice of intent, the manufacturer shall supply the name, title, address and phone number of an individual responsible for the manufacturer's submission. When the manufacturer submits its converter box to NTIA, it shall also provide test results along with a certification of the testing supervisor as to their authenticity, completeness, and accuracy. Because these certification and recordkeeping requirements should be a part of a manufacturer's normal course of business, NTIA does not anticipate that a particular type of professional skill is necessary beyond that already incorporated into the manufacturer's existing business operations. It should be noted that most of the comments submitted in response to the NPRM, supported the approach adopted in the Final Rule whereby the manufacturer would conduct its own testing and submit the converter box to NTIA for “verification plus.” No comments submitted in this proceeding indicated that the compliance requirements of this Rule would require a particular type of professional skill. B. Retailers The Final Rule requires retailers to have in place systems that are capable of electronically processing coupons for redemption and payment, tracking each transaction and generating reports that are auditable. The Final Rule also requires retailers to provide transaction reports to NTIA and to retain such reports for at least one year. Retailers are required to provide NTIA redemption information and payment receipts related to coupons used in the purchase of converter boxes. To participate in the program, retailers must have engaged in electronic retailing for at least one year and must register in the Central Contractor Registration database. Because these certification and recordkeeping requirements are typically part of a retailer's normal course of business, NTIA does not anticipate that a particular type of professional skill is necessary beyond that already incorporated into a retailer's existing business operations. No comments submitted in this proceeding indicated that the compliance requirements of this Rule would require a particular type of professional skill. The recordkeeping requirements for reports are necessary for NTIA to monitor the program to ensure that coupons are being utilized and redeemed. This information is necessary in the event NTIA is required to request additional program funding. Moreover, because this is a federal government program, NTIA must ensure that it can be audited as necessary. There were comments received that the use of coupons may not be compatible with electronic scanning devices used by participating retailers and that the requirement for electronic systems may eliminate small retailers from participating. Moreover, some retailers suggested that the use of electronic coupon cards may require significant up-front costs for software, payment processing and employee training. NTIA notes again that this program is voluntary, thus any costs incurred are a result of retailers choosing to participate. With respect to limiting small retailers, NTIA did not receive comments from any small retailers that the use of electronic systems would somehow discourage them from participating. On the other hand, most of the retailers stated that incorporating electronically encoded information on the coupons was necessary for the program to run efficiently. There was no data submitted in this proceeding indicating that small retailers would not have electronic systems in place. As for those retailers that state that electronic systems would require significant up front cost, NTIA reiterates that retailers are free to set the retail price of the converter boxes. Thus, any up-front costs incurred by a retailer can be recouped. *5. Description of the Steps the Agency Has Taken to Minimize the Significant Economic Impact on Small Entities Consistent with the Stated Objectives of Applicable Statutes, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each of the Other Significant Alternatives to the Rule Considered by the Agency That Affect the Impact on Small Entities Was Rejected:* The IRFA proposed and solicited a number of alternatives to minimize the economic impact on small entities. It should be noted, as it was in the IRFA, that any significant economic impact would not be caused by the Final Rule because participation in this program is voluntary on all levels—consumers, retailers and manufacturers. Likewise, there is no significant economic impact if a small entity chooses not to participate in the program. Nonetheless the Final Rule includes steps to minimize any adverse economic impact on all participants. a. No Limits on Pricing of the Converter Boxes The Final Rule does not restrict the wholesale or retail price of the converter box. Thus, to the extent that manufacturers and retailers incur certain costs to provide the converter boxes, these costs may be recouped through the retail or wholesale price established by them. The alternative would have been to limit the retail price of the converter box. That alternative may cause a hardship on small entities because it would limit the ability of small entities to recoup costs involved in making the converter box available. Because this program is new and the demand for the converter box is uncertain, NTIA's decision to allow manufacturers and retailers to price the box as they deem appropriate should minimize economic burdens. Moreover, NTIA does not have the statutory authority to determine the price for the set top boxes. b. Retaining Hard Copies of Sales Data In the NPRM, NTIA proposed to require retailers to retain hard copies of sales information for at least one year. Retailers submitted comments asserting that if electronic systems were used, there would be no need for such a records retention requirement. Accordingly, the Final Rule dispensed with the requirement that retailers retain hard copies of sales information for one year, however, retailers are still required to retain such information electronically for one year and to convert it to a hard copy format if requested by NTIA. c. Electronic Processing of Coupons The comments from retailers overwhelmingly recommended the use of an electronic coupon card system. Retailers were concerned that unless an electronic system was utilized, reimbursement from the government would be delayed. As a result of these comments, NTIA intends to use retailer point of sale electronic tracking systems to authorize coupon redemptions and to track sales transactions of eligible devices. To ensure that retailers are reimbursed in a timely manner, the Final Rule permits retailers to register in Central Contractor Registration which facilitates paperless payments though electronic funds transfer. Alternatively, retailers would have to wait a longer period of time to be reimbursed by the Federal Government. List of Subjects in 47 CFR Part 301 Antennas, Broadcasting, Cable television, Communications, Communications equipment, Electronic products, Telecommunications, Television. For the reasons set forth in the preamble, NTIA adds 47 CFR Part 301, which is currently reserved, with the following: PART 301 DIGITAL-TO-ANALOG CONVERTER BOX COUPON PROGRAM 301.1 Program Purposes 301.2 Definitions 301.3 Household Eligibility and Application Process 301.4 Coupons 301.5 Manufacturers' Technical Approval Process 301.6 Retailer Participation Technical Appendix 1 Technical Appendix 2 Authority: Title III of the Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4, 21 (Feb. 8, 2006) (the “Act”). § 301.1 Program Purposes. Pursuant to section 3005 of the Act, (The Deficit Reduction Act of 2005), the purpose of the Digital-to-Analog Converter Box Coupon Program is to provide $40 coupons that can be applied towards the purchase price of eligible digital-to-analog converter boxes. After February 17, 2009, the Federal Communications Commission will require that all full-power television stations in the United States broadcast using digital television technology. Consumers who wish to continue to receive local broadcast television programming over-the-air using analog televisions not connected to cable or satellite service may wish to purchase digital-to-analog converter boxes in order to do so. § 301.2 Definitions. *Act* means Title III of the Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4, 21 (Feb. 8, 2006). *Agency* means the National Telecommunications and Information Administration of the United States Department of Commerce or its contractor. *Certified Retailer* means a seller of Coupon-Eligible Converter Boxes directly to consumers that has met the requirements for certification and has been identified by NTIA as certified to redeem coupons. *Contingent Funds* means those funds referenced in Section 3005 (c)(3) of the Act. *Coupon* means a voucher provided by the Agency to Eligible Households which only may be used to purchase a Coupon-Eligible Converter Box from a Certified Retailer. *Coupon-Eligible Converter Box*
(CECB)means a stand-alone device that does not contain features or functions except those necessary to enable a consumer to convert any channel broadcast in the digital television service into a format that the consumer can display on a television receiver designed to receive and display signals only in the analog television service. CECBs may also include remote control devices. CECBs must have the features required by, and meet the technical performance specifications listed in Technical Appendix 1. *Department* means the United States Department of Commerce. *Eligible Household* means those Households in the United States and its territories that make a valid request for a coupon pursuant to Rule 301.3 within the time period specified by NTIA, but no later than March 31, 2009. *FCC* means the Federal Communications Commission. *State* includes each of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. *Household* consists of all persons who currently occupy a house, apartment, mobile home, group of rooms, or single room that is occupied as separate living quarters and has a separate U.S. Postal address. A household does not mean a Post Office Box. § 301.3 Household Eligibility and Application Process.
(a)To apply for and receive a coupon, an Eligible Household must:
(1)provide the name of the person submitting the request
(2)provide a United States Postal Service mailing address
(A)a Post Office Box will not be considered a valid mailing address unless (2)(B) applies
(B)residents of Indian reservations, Alaskan Native Villages and other rural areas without home postal delivery may be requested to supply additional information to identify the physical location of the household, as required.
(3)indicate the number of coupons requested, but no more than two coupons.
(b)As of January 1, 2008, requests for coupons may be submitted by mail, telephone or the Internet on forms provided by the Agency.
(c)Requests for coupons must be submitted to the Agency no later than March 31, 2009.
(d)Once Contingent Funds are available for the Coupon Program, only over-the-air households will be eligible. During the period in which Contingent Funds are available, households must certify that they do not receive cable, satellite, or other pay television service.
(e)If an applicant does not meet the above eligibility requirements, the request will be denied. § 301.4 Coupons.
(a)The coupon value will be $40 or the price of the CECB, whichever is less.
(b)Each Eligible Household will be limited to a total of two coupons.
(c)Two coupons may not be used in combination toward the purchase of a single CECB.
(d)Coupons will be sent to Eligible Households via the United States Postal Service.
(e)Coupons will expire 90 days after the issuance date. Issuance date means the date upon which the coupon is placed with the United States Postal Service.
(f)Consumers may not return a CECB to a retailer for a cash refund for the coupon amount or make an exchange for another item unless it is another CECB.
(g)The coupon has no cash value. It shall be illegal to sell, duplicate or tamper with the coupon. § 301.5 Manufacturers' Technical Approval Process.
(a)Manufacturers wishing to participate in the coupon program must submit a notice of intent to NTIA at least three months prior to submitting test results and sample models of converter boxes. Notices should be sent to DTV Converter Coupon Program, NTIA/OTIA, U.S. Department of Commerce, Room 4809, Washington, DC 20230, Fax Number 202-482-4626 and provide the name, title, address, and phone number of an individual responsible for the manufacturer's submission. The notice shall also include a brief description of the proposed converter box, including permitted as well as required features, and the date which the proposed converter box is expected to be available for testing.
(b)NTIA shall treat the notices of intent received as business confidential and proprietary information and will not release information from the notices of intent to the public unless otherwise required by law.
(c)The manufacturer will supply two production sample converter boxes to NTIA. NTIA will provide the manufacturer with mailing information in a letter of acknowledgment after NTIA receives the notice of intent.
(d)Each model proposed to be a CECB shall meet the performance specification and features set forth in Technical Appendix 1 of this Section. Each model proposed may also include “permitted” features set forth in Technical Appendix 2, but shall not include “disqualifying” features set forth therein. (e ) NTIA may issue other guidance or test-bed conditions and it is the manufacturer's responsibility to conduct tests pursuant to any guidance so provided. A manufacturer shall conduct its own tests or have a qualified independent third party conduct the tests.
(f)Reports of test conditions and test results must be clear and comprehensive so that they can be easily interpreted by NTIA and others reviewing them. The FCC may test converter boxes, if requested by NTIA.
(g)Test results shall be submitted to NTIA along with a certification of the testing supervisor as to their authenticity, completeness and accuracy based on personal knowledge.
(h)NTIA will provide prompt notice to the individual submitting test results whether the model has met technical approval and is or is not a CECB. NTIA will base its decision whether to approve each converter box upon consultation with the FCC.
(i)A list of CECBs, including make and model number, will be maintained by NTIA and regularly distributed to participating retailers for use in electronic Point-of-Sale
(POS)systems.
(j)It is the responsibility of the manufacturers to resolve any performance or product defect issues with consumers and retailers.
(k)NTIA shall not warrant the performance, suitability, or usefulness of any CECB for any use. § 301.6 Retailer Participation. Retailer participation is voluntary. NTIA encourages retailers to participate in the Coupon Program and to cooperate with NTIA and its contractor in the administration of an effective and efficient program resulting in high customer satisfaction with a minimum of waste, fraud and abuse.
(a)Retailer Obligations: Certified Retailers are required to redeem valid coupons toward the purchase of CECBs, and
(1)Must have systems in place that are capable of electronically processing coupons for redemption and payment, tracking each and every transaction, and generating reports that are easily auditable.
(2)Must train employees on the purpose and operation of the Coupon Program. NTIA or its contractor will provide training material.
(3)Will not be responsible for checking consumer or household eligibility but shall report to NTIA suspicious patterns of customer behavior.
(4)Use commercially reasonable methods to order and manage inventory to meet customer demand for CECBs.
(5)Must provide transaction reports based on NTIA's requirements. Reports must be maintained by the retailer for at least one year. Business confidential and proprietary information shall not be disclosed to the public unless otherwise required by law.
(b)Retailer Certification:
(1)Retailers seeking to participate in the Coupon Program must apply for certification by contacting NTIA between June 1, 2007 and March 31, 2008.
(2)Retailers must complete the form provided by the Agency which requires the retailers to self certify that they:
(A)Have been engaged in the consumer electronics retail business for at least one year unless waived for good cause by NTIA. Good cause will be determined upon a showing by the retailer that participation would be in the best interest of the program. NTIA will issue a written determination as to whether a retailer has made a sufficient showing of good cause to waive this requirement;
(B)Have completed a Central Contractor Registration (www.ccr.gov);
(C)Have in place systems or procedures that can be easily audited as well as systems that can provide adequate data to minimize fraud and abuse in retail redemption and government payment for coupons;
(D)Agree to have coupon box sales audited at any time during the term of participation in the coupon program by the U.S. Government or an independent auditor at no expense to the retailer;
(E)Will provide NTIA electronically with redemption information and payment receipts related to coupons used in the purchase of converter boxes, specifically tracking each serialized coupon by number with a corresponding CECB purchase; and
(F)Agree only to accept coupons for, and receive payment resulting from authorized purchases made for CECBs.
(3)Retailer Certification may be revoked by NTIA if a Certified Retailer fails to comply with these regulations, with the terms of any agreement made between the Certified Retailer and NTIA, or for other actions inconsistent with the Coupon Program.
(4)NTIA will not revoke retailer certification for unintentional non-compliance or error.
(5)Retailers may contact NTIA for late application or dispute resolution for problems such as denial or revocation of certification. Such issues will be resolved on a case-by-case basis. TECHNICAL APPENDIX 1 NTIA Coupon-Eligible Converter Box
(CECB)Required Minimum Performance Specifications and Features REFERENCE DOCUMENTS ATSC A/74, Receiver Performance Guidelines, June 2004 ATSC A/53E, ATSC Digital Television Standard, Revision E with Amendments No. 1 and No. 2, September 2006 ATSC A/65C, Program and System Information Protocol for Terrestrial Broadcast and Cable (Revision C) With Amendment No. 1, May 2006 Recommendation ITU-R BT.500-11, Methodology for the subjective assessment of the quality of television pictures ATSC A/69, PSIP Implementation Guidelines for Broadcasters, June 2002 ELIGIBLE CONVERTER BOXES SHALL COMPLY WITH THE FOLLOWING MINIMUM PERFORMANCE SPECIFICATIONS AND FEATURES: 1. Decoder Equipment shall be capable of receiving and presenting for display program material that has been encoded in any and all of the video formats contained in Table A3 of ATSC A/53E. The image presented for display need not preserve the original spatial resolution or frame rate of the transmitted video format. 2. Output Formats Equipment shall support 4:3 center cut-out of 16:9 transmitted image, letterbox output of 16:9 letterbox transmitted image, and a full or partially zoomed output of unknown transmitted image. 3. PSIP Processing Equipment shall process and display ATSC A/65C Program and System Information Protocol
(PSIP)data to provide the user with tuned channel and program information. See ATSC A/69 for further guidance. 4. Tuning Range Equipment shall be capable of receiving RF channels 2 through 69 inclusive. 5. RF Input Equipment shall include a female 75 ohm F Type connector for VHF/UHF antenna input. 6. RF Output Equipment shall include a female 75 ohm F Type connector with user-selectable channel 3 or 4 NTSC RF output. 7. Composite Output Equipment shall include female RCA connectors for stereo left and right audio (white and red) and a female RCA connector for composite video (yellow). Output shall produce video with ITU-R BT.500-11 quality scale of Grade 4 or higher. 8. RF Dynamic Range (Sensitivity) Equipment shall achieve a bit error rate
(BER)in the transport stream of no worse than 3×10 ^6 for input RF signal levels directly to the tuner from -83 dBm to -5 dBm over the tuning range. Subjective video/audio assessment methodologies could be used to comply with the bit error rate requirement. 1 1 Subjective evaluation methodologies use the human visual and auditory systems as the primary measuring “instrument.” These methods may incorporate viewing active video and audio segments to evaluate the performance as perceived by a human observer. For subjective measurement, the use of an expert viewer is recommended. The viewer shall observe the video and listen to the audio for at least 20 seconds in order to determine Threshold of Visibility
(TOV)and Threshold of Audibility (TOA). Subjective evaluation of TOV should correspond with achievement of transport stream error rate not greater than a BER of 3×10 ^6 . If there is disagreement over TOV performance evaluation, it will be resolved with a measurement of actual BER. Test conditions are for a single RF channel input with no noise or channel impairment. Refer to ATSC A/74 Section 4.1 for further guidance. (Note the upper limit specified here is different than that in A/74 4.1). 9. Phase Noise Equipment shall achieve a bit error rate in the transport stream of no worse than 3×10 ^6 for a single channel RF input signal with phase noise of -80 dBc/Hz at 20 kHz offset. The input signal level shall be - 28 dBm. Subjective video/audio assessment methodologies described above could be used to comply with the bit error rate requirement. Refer to ATSC A/74 Section 4.3 for further guidance. 10. Co-Channel Rejection The receiver shall not exceed the thresholds indicated in Table 1 for rejection of co-channel interference at the given desired signal levels. Refer to ATSC A/74 Section 4.4.1 for further guidance. Table 1—Co-Channel Rejection Thresholds. Type of Interference Co-Channel D/U Ratio
(dB)Weak Desired (−68 dBm) Moderate Desired (−53 dBm) DTV interference into DTV +15.5 +15.5 NTSC interference into DTV +2.5 +2.5 *Notes:* NTSC split 75% color bars with pluge bars and picture to sound ratio of 7 dB should be used for video source. ATSC high definition moving video should be used for video source. All NTSC values are peak power; all DTV values are average power. 11. First Adjacent Channel Rejection The receiver shall not exceed the thresholds indicated in Table 2 for rejection of adjacent channel interference at the given desired signal levels. Refer to ATSC A/74 Section 4.4.2 for further guidance. Table 2—Adjacent Channel Rejection Thresholds Type of Interference Adjacent Channel D/U Ratio
(dB)Weak Desired (−68 dBm) Moderate Desired (−53 dBm) Strong Desired (−28 dBm) Lower DTV interference into DTV ≥−33 −33 −20 Upper DTV interference into DTV ≥−33 −33 −20 Lower NTSC interference into DTV ≥−40 −35 −26 Upper NTSC interference into DTV ≥−40 −35 −26 *Notes:* NTSC split 75% color bars with pluge bars and picture to sound ratio of 7 dB should be used for video source. ATSC high definition moving video should be used for video source. All NTSC values are peak power; all DTV values are average power. 12. Taboo Channel Rejection The receiver shall not exceed the thresholds indicated in Table 3 for rejection of taboo channel interference at the given DTV desired and undesired signal levels. Refer to ATSC A/74 Section 4.4.3 for further guidance. Table 3—Taboo Channel Rejection Thresholds for DTV Interference into DTV Channel Taboo Channel D/U Ratio
(dB)Weak Desired (−68 dBm) Moderate Desired (−53 dBm) Strong Desired (−28 dBm) N+/−2 ≥−44 −40 −20 N+/−3 ≥−48 −40 −20 N+/−4 ≥−52 −40 −20 N+/−5 ≥−56 −42 −20 N+/−6 to N+/−13 ≥−57 −45 −20 N +/−14 and N+/−15 ≥−46 −45 −20 *Notes:* ATSC high definition moving video should be used for video source. All DTV values are average power. 13. Burst Noise Equipment shall tolerate a noise burst of at least 165 μs duration at a 10 Hz repetition rate without visible errors. The noise burst shall be generated by gating a white noise source with average power -5 dB, measured in the 6 MHZ channel under test, referenced to the average power of the DTV signal. The input DTV signal level shall be -28 dBm. Refer to ATSC A/74 Section 4.4.4 for further guidance. 14. Field Ensembles Equipment shall demonstrate that it can successfully demodulate, with two or fewer errors, 30 of the 50 field ensembles available from ATSC in conjunction with ATSC A/74. Error counts are not expected to include inherent errors associated with the start and end or looping of field ensembles for playback. Refer to ATSC A/74 Section 4.5.2 for further guidance. 15. Single Static Echo Equipment shall comply with either CRITERIA A or CRITERIA B , below. CRITERIA A: Equipment shall tolerate a single static echo with the magnitude, relative to a desired DTV signal power of -28 dBm, and delay defined in Table 4 . CRITERIA B: Equipment may demonstrate compliance by tolerating a single static echo with the magnitude, relative to a desired DTV signal power of -28 dBm, and delay defined in Table 5 , if the equipment also demonstrates that it can receive 37 of the 50 field ensembles. See Field Ensembles requirement. CRITERIA A: Table 4—Maximum Single Static Echo Delay Echo Delay Desired to Echo Ratio −50 μs 16 dB −40 μs 12 dB −20 μs 6 dB −10 μs 5 dB −5 μs 2 dB 0 μs 1 dB 10 μs 2 dB 20 μs 3 dB 40 μs 10 dB 50 μs 16 dB CRITERIA B: Table 5—Minimum Single Static Echo Delay Echo Delay Desired to Echo Ratio −50 μs 16 dB −40 μs 16 dB −20 μs 7.5 dB −10 μs 5 dB −5 μs 2 dB 0 μs 1 dB 10 μs 2 dB 20 μs 3 dB 40 μs 16 dB 50 μs 16 dB 16. Channel Display Equipment must display all channels, including multicast channels, broadcast by a digital television station that can be displayed on an analog TV receiver. 17. Closed Captioning, Emergency Alert System
(EAS)and Parental Controls (V-Chip) Equipment must display
(1)EAS message broadcast pursuant to 47 CFR § 11.11 of the FCC Rules;
(2)parental control information as required by the FCC Rules in 47 CFR § 15.120 and incorporate the EIA/CEA-766-A standard; and
(3)Close Captioning information as required by the FCC Rules in 47 CFR § 15.122 and incorporate the CEA 708/608 standard. 18. Remote Control A remote control to operate the equipment shall be provided with batteries. Standard codes will be used and provided so the consumer can program an existing remote control to, at a minimum, change channels and turn on and off the converter box and the consumer's existing analog television receiver. 19. Audio Outputs The RF output must be modulated with associated audio program information; the RCA audio connectors must provide stereo left/right, when broadcast. 20. Energy Standards The equipment shall use no more than two watts of electricity in the “Sleep” state. Sleep state power shall be measured in accordance with industry standard CEA-2013-A. Eligible equipment shall provide the capability to automatically switch from the On state to the Sleep state after a period of time without user input. This capability shall be enabled at the factory as the default setting for the device. The default period of inactivity before the equipment automatically switches to the Sleep state shall be four hours. Eligible equipment may allow the current program to complete before switching to the Sleep state. The default energy related settings shall not be altered during the initial user set-up process and shall persist unless the user chooses at a later date to manually:
(a)disable the “automatic switching to Sleep state” capability, or
(b)adjust the default time period from 4 hours to some other value. 21. Owner's manual An owner's manual shall include information regarding the remote control codes used to permit the consumer to program a universal remote control. The owner's manual will include information regarding the availability of the main audio channel and other associated audio channels on the RF and left/right audio outputs. 22. LED Indicator The equipment shall contain an LED to indicate when the unit is turned on. 23. RF Cable The equipment will include at least one RF cable to connect the unit with its associated analog television receiver. 24. Signal Quality Indicator The equipment will display on the television receiver signal quality indications such as signal strength per ATSC A/74, Section 4.7. TECHNICAL APPENDIX 2—NTIA Coupon-Eligible Converter Box (CECB): Permitted and Disqualifying Features Feature Permitted Feature Disqualifying Feature General Requirements Any device or capability which provides for more than simply converting a digital over-the-air television signal
(ATSC)for display on an analog television receiver (NTSC), including, but not limited to : Integrated video display; Video or Audio recording or playback capability such as VCR, DVD, HDDVD, Blue Ray, etc. Antenna Inputs Smart Antenna interface connector (CEA 909 Smart Antenna Control Interface standard) The manufacturer may supply a 300 ohm connector or a matching transformer to connect 300 ohm ribbon leads to the required RF antenna input Antenna Pass-Through Equipment may pass through a NTSC analog signal from the antenna to the TV receiver By-pass switch to permit NTSC pass-through Bundling Antenna and Converter Box Equipment and Smart Antenna may be sold together at promotional prices Equipment cannot be sold conditioned on the purchase of a Smart Antenna or other equipment. Outputs (General) S-Video Digital Video Interface (DVI); Component video (YPbPr); High-Definition Multimedia Interface (HDMI); Computer video (VGA); USB IEEE-1394 (iLink or Firewire) Ethernet (IEEE-802.3) Wireless (IEEE0802.11) Outputs (Audio) Equipment may process associated audio services described in Section 6.6 of A/54 RF output may provide monaural audio for the selected audio channel RF output may provide BTSC stereo for the selected audio channels Automatic Software Repair/Upgrade Equipment is able to receive and process software pursuant to ATSC A-97 Program Information Equipment may contain software and hardware modifications necessary to display other program information as determined by the manufacturer Remote Control Manufacturers may include a programmable universal remote control to operate the equipment and other existing video and audio equipment Remote control may have dedicated keys to provide direct access to closed captioning and descriptive video functions Other Features Equipment may be operated on battery power as well as external AC/DC power Manufacturer may supply additional cables, such as a cable with 3 female RCA connectors for composite video (yellow connector) and stereo left and right audio (white and red connectors) Equipment may display on the television receiver additional signal quality information as determined by the manufacturer Energy Standards Equipment may comply with standards established by the EPA Energy Star program or state regulatory authorities Dated: March 9, 2007. John M.R. Kneuer, Assistant Secretary for Communications and Information Administration. [FR Doc. E7-4668 Filed 3-14-07; 8:45 am] BILLING CODE 3510-60-S DEPARTMENT OF COMMERCE National Telecommunications and Information Administration 47 CFR Part 301 Digital-to-Analog Converter Box Coupon Program Public Meeting AGENCY: National Telecommunications and Information Administration, Commerce. ACTION: Public meeting. SUMMARY: Summary: NTIA will hold a public meeting on March 19, 2007 in connection with its Digital-to-Analog Converter Box Coupon Program described in the Final Rule that was recently adopted by NTIA. DATES: The meeting will be held on March 19, 2007 at 10 a.m., Eastern Standard Time. ADDRESSES: The meeting will be held at the U.S. Department of Commerce Auditorium, 1401 Constitution Avenue, N.W., Washington, D.C. FOR FURTHER INFORMATION CONTACT: For further information regarding the meeting, contact Sandra Stewart at
(202)482-2246. SUPPLEMENTARY INFORMATION: NTIA will host a public meeting to discuss its Final Rule establishing the Digital-to-Analog Converter Box Coupon Program. A copy of the Final Rule is available on NTIA's website at *http://www.ntia.doc.gov* . The public meeting will be limited to those issues addressed in the Final Rule. NTIA will not entertain questions related to the Request for Information published by NTIA on July 31, 2006, or other procurement related issues. All procurement-related questions should be directed to Diane Trice at
(301)713-0838 ext. 102 or *diane.trice@noaa.gov* . Public attendance at the meeting is limited to space available. The meeting will be physically accessible to people with disabilities. Individuals requiring special services, such as sign language interpretation or other ancillary aids, are asked to indicate this to Sandra Stewart at least two
(2)days prior to the meeting. Members of the public will have an opportunity to ask questions at the meeting. Individuals who would like to submit written questions should e-mail their questions to Francine Jefferson at *fjefferson@ntia.doc.gov* . Dated: March 9, 2007. Kathy D. Smith, Chief Counsel, National Telecommunications and Information Administration. [FR Doc. E7-4642 Filed 3-14-07; 8:45 am] BILLING CODE 3510-60-S 72 50 Thursday, March 15, 2007 Proposed Rules OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 351 RIN 3206-AL19 Representative Rate; Order of Release From Competitive Level; Assignment Rights AGENCY: Office of Personnel Management. ACTION: Proposed rule with request for comments. SUMMARY: The Office of Personnel Management
(OPM)is issuing proposed regulations clarifying *representative rate* as used in OPM's retention regulations. These regulations clarify how an agency determines employees' retention rights when the agency has positions in one or more pay bands. These regulations also clarify the order in which an agency releases employees from a competitive level. Finally, these regulations clarify how an agency determines employees' retention rights when a competitive area includes more than one local commuting area. DATES: We will consider comments received on or before May 14, 2007. ADDRESSES: You may submit comments, identified by RIN 3206-AL19, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *E-mail: employ@opm.gov.* Include “RIN 3206-AL19” in the subject line of the message. • *Fax:*
(202)606-2329. • *Mail:* Mark Doboga, Deputy Associate Director for Talent and Capacity Policy, U.S. Office of Personnel Management, Room 6551, 1900 E Street NW., Washington, DC 20415-9700. • *Hand Delivery/Courier:* OPM, Room 6551, 1900 E Street, NW., Washington, DC 20415. FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon by telephone on 202-606-0960, by FAX on 202-606-2329, by TDD on 202-418-3134, or by e-mail at *employ@opm.gov.* SUPPLEMENTARY INFORMATION: Representative Rate To determine released competing employees' rights under OPM's reduction in force regulations in part 351 of title 5, Code of Federal Regulations (CFR), an agency may need to compare positions to determine the employee's eligibility to “bump” or “retreat” to a position in a different pay schedule. When two or more positions are in different pay schedules, the agency compares the representative rate of the positions to determine equivalent grade levels and the best offer of assignment for the released employee. The agency does not use representative rates to determine released employees' retention standing when all positions are in the same pay schedule. In this situation, the agency directly compares the grades or levels of the positions. Section 351.203 of OPM's current reduction in force regulations defines *representative rate* as
(1)the fourth step of the grade for a position under the General Schedule (GS),
(2)the prevailing rate for a position under the Federal Wage System (FWS), or similar wage-determining procedure, and
(3)for other positions (e.g., positions in an ungraded pay system, pay band positions, negotiated pay systems), the rate designated by the agency as representative of the position. OPM proposes to update the definition of *representative rate* in § 351.203 with the following revisions: 1. New paragraph
(1)in the definition provides that representative rate is the fourth step of the grade for a position covered by the General Schedule, using the applicable locality rate authorized by 5 U.S.C. 5304 and 5 CFR part 531, subpart F, for GS positions in the 48 contiguous states. If the competitive area includes one local commuting area within a single locality pay area, the agency uses the same locality-adjusted representative rate for all GS positions at the same grade in the competitive area (e.g., all GS-7 positions have the same representative rate without regard to other pay such as special rates). For information, new paragraph (c)(5) of § 351.403 explains that the agency selects a single locality-adjusted representative rate for all GS positions at the same grade when a competitive area includes more than one local commuting area covering more than one locality pay area. Under the current definition in § 351.203, representative rate for GS positions does not include locality payments authorized by 5 U.S.C. 5304 and 5 CFR part 531, subpart F. In contrast, pay for FWS positions includes a locality component that is defined as basic pay and is included in the current definition of representative rate. Our proposed change includes locality payments in the representative rate of GS positions located in the 48 contiguous states. This will allow agencies to determine employees' representative rates using a comparable locality component for both GS and FWS positions. 2. New paragraph
(2)in the definition continues current policy that representative rate is the prevailing rate for a position covered by an FWS or similar wage-determining procedure. 3. New paragraph
(3)in the definition provides that for positions in a pay band, representative rate is the rate the agency designates as representative of that pay band. Consistent with the inclusion of locality payments in the representative rates for GS positions, the proposed regulations also require agencies to include in the representative rate for a pay band any locality payment under 5 U.S.C. 5304 (or equivalent payment under other legal authority) authorized for a position in that pay band for more equitable position comparisons. For example, the agency could establish a single representative rate for a pay band that includes administrative and support positions that would otherwise be classified from GS-5 through GS-7, or equivalent. The current definition of *representative rate* in § 351.203 does not specifically address positions in a pay band. At present, for any positions other than GS and FWS (including positions in a banded system), the agency designates a rate that is representative of those positions. 4. New paragraph
(4)in the definition provides that for positions not covered by new paragraphs
(1)through
(3)(e.g., positions in an unclassified or negotiated pay system), the representative rate is the rate the agency designates as representative of the position. Again, the proposed regulations require agencies to include any locality payment under 5 U.S.C. 5304 (or equivalent payment under other legal authority) that applies to such a position in the representative rate that it designates. At present, as noted previously, for any positions other than GS and FWS (including positions in an unclassified or negotiated pay system), the agency designates a rate that is representative of those positions. We note that, as under the current reduction in force regulations, the definition of *representative rate* in the proposed regulations is different from the definition of *representative rate* for the purposes of grade and pay retention under 5 CFR 536.103, severance pay under 5 CFR 550.703, and discontinued service retirement under 5 CFR 831.503(b)(3)(iv) and 842.206(c)(3)(iv). As under the current rules, agencies would need to apply each definition separately. Competitive Level In § 351.403, we revise paragraph (c)(4) and add new paragraphs (a)(5), (c)(5), and (c)(6). New paragraph (a)(5) of § 351.403 provides that if a competitive area includes positions in one or more pay bands, each pay band set of interchangeable positions under the competitive level provisions of paragraphs (a)(1) through
(4)of 5 CFR 351.403 is a separate competitive level. As appropriate, the entire pay band may be one competitive level, or the pay band may include multiple competitive levels. For example, a pay band includes positions traditionally classified from GS-4 through GS-7. If the employees' official positions are identical ( *i.e.* , identical positions are always interchangeable), the pay band includes one competitive level with one representative rate even though employees' actual salaries may vary under the agency's pay band compensation system. If the pay band includes three official positions that are not interchangeable under the competitive level provisions of paragraphs (a)(1) through
(4)of § 351.403, the pay band includes three competitive levels with the agency determining the appropriate representative rate for each level. New paragraph (c)(5) of § 351.403 provides that an agency does not establish separate reduction in force competitive levels solely on the basis of a difference in GS locality payments under 5 U.S.C. 5304 when a competitive level includes more than one locality pay area listed in § 531.603 of this chapter. If a competitive area includes more than one local commuting area covering more than one locality pay area, the agency establishes GS competitive levels on the basis of the representative rates for one local commuting area and locality pay area within the competitive area. For example, if a competitive area includes GS positions in both Norfolk and Richmond, Virginia, the agency would decide whether to establish GS competitive levels on the basis of the representative rate in Norfolk or the rate in Richmond. Current paragraph (c)(4) of § 351.403 contains a comparable provision for FWS positions. Revised paragraph (c)(4) clarifies this provision. For example, if a competitive area includes FWS positions in both Pensacola, Florida, and Gulfport, Mississippi, the agency would decide whether to establish FWS competitive levels on the basis of the representative rate in Pensacola or the rate in Gulfport. New paragraph (c)(6) of § 351.403 provides that if a competitive area includes more than one local commuting area, the agency uses the same local commuting area to establish competitive levels under paragraphs (c)(4) (FWS positions) and (c)(5) (GS positions) of § 351.403. In the example with Norfolk and Richmond, the agency would decide whether to establish all its competitive levels on the basis of representative rates in Norfolk, or the rates in Richmond. The agency may not use one local commuting area in the competitive area to establish representative rates for one pay schedule (e.g., GS), and a different local commuting area in the competitive area to establish representative rates for a different pay schedule (e.g., FWS) used in the same reduction in force. Release From the Competitive Level In § 351.601, current paragraph
(b)is redesignated paragraph (c), paragraph
(a)is revised, and new paragraph
(b)is added. Revised paragraph
(a)of § 351.601 clarifies that the agency releases employees from a pay band in the same inverse order of retention standing that the agency releases other employees from a competitive level. New paragraph
(b)of § 351.601 clarifies longstanding policy that, at its option, an agency may provide for intervening displacement within the competitive level before final release of the employee with the lowest-retention standing from the competitive level. Assignment Rights In § 351.701, paragraph
(a)is revised and new paragraphs (g), (h), and
(i)are added. New paragraph
(g)of § 351.701 provides that if a competitive area includes more than one local commuting area, the agency determines released employees' assignment rights on the basis of the representative rates for the one local commuting area within the competitive area that the agency used to establish competitive levels under 5 CFR 351.403(c)(4), (5), and (6). New paragraph
(h)explains how the agency determines a released employee's assignment rights when all positions in a competitive area are pay band positions. A released employee has a potential assignment right to a position in an equivalent pay band or one pay band lower. A preference eligible with a service-connected disability of 30 percent or more has a potential assignment right to a position in an equivalent pay band or no more than two pay bands lower. The agency is responsible for determining the scope of assignment rights to other pay bands. New paragraph
(i)explains how the agency determines a released employee's assignment rights when a competitive area includes pay band positions and other positions not covered by a pay band. After the agency determines the representative rates of
(1)positions not covered by a pay band (in new (i)(1)) and
(2)positions covered by a pay band (in new paragraph (i)(2)), new paragraph (i)(3) provides that the agency applies the representative rate of each pay band position to positions not covered by a pay band to determine the potential assignment rights of employees released by reduction in force from pay band positions. For example, an agency has a pay band that includes positions traditionally classified from GS-4 through GS-7. The employees' official positions are identical and are otherwise interchangeable for purposes of the competitive level provisions in 5 CFR 351.403(a). Under new paragraph (a)(5) of 5 CFR 351.403, the pay band comprises one competitive level with one representative rate even though employees' actual salaries may vary. The agency would then use the representative rate of the pay band to determine whether employees in positions not included in a pay band have potential assignment rights to positions in the pay band. The agency would also use the representative rate of the pay band to determine whether pay band employees have potential assignment rights to positions not included in the pay band. For a second example, an agency again has a pay band that includes positions traditionally classified from GS-4 through GS-7. This time, the pay band includes three different official positions with different salaries. Under new paragraph (a)(5) of § 351.403, the agency finds that the pay band includes three competitive levels, each with its own representative rate. The agency would then use each of the three representative rates of the competitive levels within the pay band to determine whether employees in positions not included in a pay band have potential assignment rights to positions in the pay band. The agency would also use the representative rates of the pay band to determine whether pay band employees have potential assignment rights to positions not included in the pay band. Regulatory Flexibility Act I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only certain Federal employees. Executive Order 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866. List of Subjects in 5 CFR Part 351 Administrative practice and procedure, Government employees. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM proposes to amend part 351 of title 5, Code of Federal Regulations, as follows: PART 351—REDUCTION IN FORCE 1. The authority citation for part 351 continues to read as follows: Authority: 5 U.S.C. 1302, 3502, 3503; sec. 351.801 also issued under E.O. 12828, 58 FR 2965. 2. In § 351.203, the definition of *representative rate* is revised to read as follows: § 351.203 Definitions. In this part: *Representative rate* means:
(1)The fourth step of the grade for a position covered by the General Schedule, using the locality rate authorized by 5 U.S.C. 5304 and subpart F of part 531 of this chapter for General Schedule positions;
(2)The prevailing rate for a position covered by a wage-board or similar wage-determining procedure;
(3)For positions in a pay band, the rate (or rates) the agency designates as representative of that pay band or competitive levels within the pay band, including (as appropriate) any applicable locality payment authorized by 5 U.S.C. 5304 and subpart F of part 531 of this chapter (or equivalent payment under other legal authority); and
(4)For other positions (e.g., positions in an unclassified pay system), the rate the agency designates as representative of the position, including (as appropriate) any applicable locality payment authorized by subpart F of part 531 (or equivalent payment under other legal authority). 3. In § 351.403, paragraph (c)(4) is revised, and paragraphs (a)(5), (c)(5), and (c)(6) are added, to read as follows: § 351.403 Competitive Level.
(a)* * *
(5)If a competitive area includes positions in one or more pay bands, each set of interchangeable positions in the pay band under paragraphs (a)(1) through
(4)of this section is a separate competitive level (e.g., with interchangeable positions under paragraphs (a)(1) through
(4)of this section, each pay band is one competitive level; if the positions are not interchangeable under paragraphs (a)(1) through
(4)of this section, the pay band may include multiple competitive levels).
(c)* * *
(4)A difference in the local wage areas when a competitive area includes positions covered by more than one wage-board or similar wage-determining procedure;
(5)A difference in locality payments under 5 U.S.C. 5304 and subpart F of part 531 of this chapter when a competitive level includes more than one locality pay area listed in § 531.603 of this chapter; or
(6)Representative rates in different local commuting areas when a competitive area includes General Schedule and wage grade positions in multiple General Schedule locality pay areas, and/or FWS local wage areas. 4. Section 351.601 is revised to read as follows: § 351.601 Order of release from competitive level.
(a)Each agency must select competing employees for release from a competitive level (including release from a competitive level involving a pay band) under this part in the inverse order of retention standing, beginning with the employee with the lowest retention standing on the retention register. An agency may not release a competing employee from a competitive level while retaining in that level an employee with lower retention standing except:
(1)As required under § 351.606 when an employee is retained under a mandatory exception or under § 351.806 when an employee is entitled to a new written notice of reduction in force; or
(2)As permitted under § 351.607 when an employee is retained under a permissive continuing exception or under § 351.608 when an employee is retained under a permissive temporary exception.
(b)At its option an agency may provide for intervening displacement within the competitive level before final release of the employee with the lowest-retention standing from the competitive level.
(c)When employees in the same retention subgroup have identical service dates and are tied for release from a competitive level, the agency may select any tied employee for release. 5. In section 351.701, paragraphs (g), (h), and
(i)are added, to read as follows: § 351.701 Assignment involving displacement.
(g)If a competitive area includes more than one local commuting area, the agency determines assignment rights under this part on the basis of the representative rates for one local commuting area within the competitive area (i.e., the same local commuting area used to establish competitive levels under § 351.403(c)(4), (5), and (6)).
(h)If a competitive area includes positions under one or more pay bands, a released employee shall be assigned in accordance with paragraphs
(a)through
(d)of this section to a position in an equivalent pay band or one pay band lower, as determined by the agency, than the pay band from which released. A preference eligible with a service-connected disability of 30 percent or more must be assigned in accordance with paragraphs
(a)through
(d)of this section to a position in an equivalent pay band or up to two pay bands lower, as determined by the agency, than the pay band from which released.
(i)If a competitive area includes positions under one or more pay bands, and other positions not covered by a pay band (e.g., GS and/or FWS positions), the agency provides assignment rights under this part by:
(1)Determining the representative rate of positions not covered by a pay band consistent with § 351.203;
(2)Determining the representative rate of each pay band, or competitive level within the pay band(s), consistent with § 351.203;
(3)As determined by the agency, providing assignment rights under paragraph
(b)of this section (bumping), or paragraphs
(c)and
(d)of this section (retreating), consistent with the grade intervals covered in paragraphs (b)(2) and (c)(2) of this section, and the pay band intervals in paragraph
(h)of this section. [FR Doc. E7-4701 Filed 3-14-07; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27560; Directorate Identifier 2006-NM-211-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 757-200, -200PF, and -200CB Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 757-200, -200PF, and -200CB series airplanes. This proposed AD would require inspections to detect scribe lines and cracks of the fuselage skin, lap joints, circumferential butt splice strap, and external and internal approved repairs; and related investigative/corrective actions if necessary. This proposed AD results from reports of scribe lines adjacent to the skin lap joints. We are proposing this AD to detect and correct cracks, which could grow and cause rapid decompression of the airplane. DATES: We must receive comments on this proposed AD by April 30, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Dennis Stremick, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6450; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-27560; Directorate Identifier 2006-NM-211-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov* . Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received reports of scribe lines found adjacent to the skin lap joints on Model 757-200 airplanes. The scribe lines appear to have been made on the skin when sealant was removed as part of preparation of the airplane for repainting. The airplanes had between 13,300 and 16,800 flight cycles. Although no cracks as a result of scribe lines have been reported on Model 757 airplanes, scribe lines have caused cracks on other airplanes. Undetected cracking, if not corrected, could grow and result in rapid decompression. Related AD This proposed AD is similar to AD 2006-07-12, amendment 39-14539 (71 FR 16211), March 31, 2006. That AD applies to all Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That AD requires a one-time inspection for scribe lines and cracks in the fuselage skin at certain lap joints, butt joints, external repair doublers, and other areas; and related investigative/corrective actions if necessary. That AD resulted from reports of fuselage skin cracks adjacent to the skin lap joints on airplanes that had scribe lines. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 757-53A0092, Revision 1, dated January 10, 2007. The service bulletin describes procedures for removing paint and sealant at the applicable zonal locations, and doing detailed inspections to detect scribe lines and cracks of the fuselage skin, lap joints, circumferential butt splice strap, and external and internal approved repairs. The service bulletin specifies repairing scribe lines before further flight, except when a limited return to service
(LRTS)program for qualifying scribe lines would allow return to service for a limited period before scribe lines are repaired. The LRTS program includes repetitive inspections to detect cracks where scribe lines were found. To qualify for an LRTS program, a scribe line must meet certain criteria including the total flight cycles on the airplane, and the location and extent of the scribe lines. The service bulletin specifies contacting Boeing for final repair instructions for the LRTS program, which would eliminate the need for the repetitive inspections of the LRTS program. The repetitive intervals for the LRTS program range from 1,500 to 8,000 flight cycles, depending on the location of the scribe lines and the configuration of the airplane. Each piece of structure susceptible to a scribe line is assigned to a zone. Based on criticality of location, the service bulletin addresses the most critical areas (zones) first and appropriately reduces the compliance requirements for less critical areas. The service bulletin has specific instructions for calculating separate inspection thresholds. These thresholds are based on
(1)fatigue life for the identified zonal locations and
(2)potential scribe line opportunities in an airplane's maintenance history. The compliance times for inspecting are 20,000 flight cycles (Zone 1) and 30,000 flight cycles (Zone 2) after the first scribe opportunity. If a maintenance records-based threshold program is not used, however, the service bulletin specifies 6,000 flight cycles as the first scribe opportunity. Since a scribe line can occur at any time during the service life of an airplane and at many locations, the service bulletin uses both total flight cycles and structural criticality of locations to determine the inspection requirements. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed below. Differences Between the Proposed AD and Service Information The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions by using a method that we approve, or by using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings. The service bulletin specifies compliance times relative to the date of issuance of the service bulletin; however, this proposed AD would require compliance before the specified compliance time relative to the effective date of the AD. Costs of Compliance There are about 945 airplanes of the affected design in the worldwide fleet; of these, about 634 are U.S.-registered airplanes. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. There are no U.S.-registered airplanes in Group 5 or Group 6. Estimated Costs Inspections Work hours Average labor rate per hour Cost per airplane Number of U.S.-registered airplanes Fleet cost Group 1 127 $80 $10,160 144 $1,463,040 Group 2 122 80 9,760 6 58,560 Group 3 154 80 12,320 75 924,000 Group 4 128 80 10,240 409 4,188,160 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-27560; Directorate Identifier 2006-NM-211-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by April 30, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 757-200, -200PF, and -200CB series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 757-53A0092, Revision 1, dated January 10, 2007. Unsafe Condition
(d)This AD results from reports of scribe lines adjacent to the fuselage skin lap joints. We are issuing this AD to detect and correct cracks, which could grow and cause rapid decompression of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Inspections
(f)Perform detailed inspections to detect scribe lines and cracks of the fuselage skin, lap joints, circumferential butt splice strap, and external and internal approved repairs; and perform related investigative and corrective actions. Do the actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0092, Revision 1, dated January 10, 2007, except as required by paragraph
(g)of this AD. Do the actions within the applicable compliance times specified in paragraph 1.E. of the service bulletin, except as required by paragraph
(h)of this AD. Exceptions to Service Bulletin Specifications
(g)Where Boeing Alert Service Bulletin 757-53A0092, Revision 1, dated January 10, 2007, specifies to contact Boeing for appropriate repair instructions, repair using a method approved in accordance with the procedures specified in paragraph
(j)of this AD.
(h)Boeing Alert Service Bulletin 757-53A0092, Revision 1, dated January 10, 2007, specifies compliance times relative to the date of issuance of the service bulletin; however, this proposed AD would require compliance before the specified compliance time relative to the effective date of the AD. Credit for Prior Accomplishment
(i)Inspections done before the effective date of this AD in accordance with Boeing Alert Service Bulletin 757-53A0092, dated September 18, 2006, are acceptable for compliance with the corresponding requirements of paragraph
(f)of this AD. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane. Issued in Renton, Washington, on March 1, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4742 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27565; Directorate Identifier 2006-NM-215-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A330 and A340-200 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive
(AD)that applies to certain Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes; and Model A340-541 and -642 airplanes. The existing AD currently requires repetitively resetting the display units
(DUs)for the electronic instrument system (EIS), either by switching them off and back on again or by performing a complete electrical shutdown of the airplane. This proposed AD would require installing new software, which would end the actions required by the existing AD. This proposed AD also would add additional airplanes that may be placed on the U.S. Register in the future. This proposed AD results from an incident in which all of the DUs for the EIS went blank simultaneously during flight. We are proposing this AD to prevent automatic reset of the DUs for the EIS during flight and consequent loss of data from the DUs, which could reduce the ability of the flightcrew to control the airplane during adverse flight conditions. DATES: We must receive comments on this proposed AD by April 16, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Tim Backman, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2797; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2007-27565; Directorate Identifier 2006-NM-215-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov,* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion On August 18, 2005, we issued AD 2005-17-18, amendment 39-14239 (70 FR 50166, August 26, 2005), for certain Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes; and Model A340-541 and -642 airplanes. That AD requires repetitively resetting the display units
(DUs)for the electronic instrument system (EIS), either by switching them off and back on again or by performing a complete electrical shutdown of the airplane. That AD resulted from an incident in which all of the DUs for the EIS went blank simultaneously during flight. We issued that AD to prevent automatic reset of the DUs for the EIS during flight and consequent loss of data from the DUs, which could reduce the ability of the flightcrew to control the airplane during adverse flight conditions. Actions Since Existing AD Was Issued After the issuance of AD 2005-17-18, the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, issued French emergency airworthiness directive UF-2005-166, dated September 23, 2005, which was superseded by F-2005-166 R1, dated October 26, 2005. Those French airworthiness directives cancelled French airworthiness directive UF-2005-150, dated August 10, 2005 (referred to in AD 2005-17-18), and required that the resets be done only by the aircraft flightcrew in accordance with Airbus A330 Airplane Flight Manual
(AFM)Temporary Revision
(TR)4.03.00/26 and A340 AFM TR 4.03.00/37, both dated October 11, 2005; as applicable. We determined at that time that further rulemaking was not necessary, because AD 2005-17-18 adequately addresses the unsafe condition by requiring the resets to be done either by certificated maintenance personnel or by the flightcrew. In addition, we approved TRs 4.03.00/26 and 4.03.00/37 as alternative methods of compliance
(AMOC)to the requirements of paragraph
(f)of AD 2005-17-18 (addressed in paragraph (j)(3) of this proposed AD). In the preamble to AD 2005-17-18, we specified that the actions required by that AD were considered “interim action” and that the manufacturer was developing a modification to address the unsafe condition. We indicated that we may consider further rulemaking once the modification was developed, approved, and available. The manufacturer now has developed such a modification, and we now have determined that further rulemaking action is indeed necessary; this proposed AD follows from that determination. Relevant Service Information Airbus has issued the primary service bulletins in the following table: Primary Service Bulletins Airbus Service Bulletin— For Model— A330-31-3087, dated June 26, 2006 A330-201, -202, -203, -223, -243, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes. A340-31-4100, dated June 26, 2006 A340-211, -212, -213, -311, -312, and -313 airplanes. A340-31-5021, dated June 26, 2006 A340-541 and -642 airplanes. These primary service bulletins describe procedures for installing electronic instrument system 2
(EIS2)software standard L6-1, which would end the actions required by AD 2005-17-18. Airbus also has issued the service bulletins in the following table: Additional Service Bulletins Airbus Service Bulletin— Describes procedures for— Which must be done prior to the actions specified in Airbus Service Bulletin— A330-31-3069, Revision 01, dated December 27, 2004 Installing EIS2 software standard L5 A330-31-3087, dated June 26, 2006. A330-31-3056, Revision 02, dated March 24, 2003 Installing Thales display system standard L4 A330-31-3087, dated June 26, 2006. A340-31-4087, Revision 01, dated December 27, 2004 Installing EIS2 software standard L5 A340-31-4100, dated June 26, 2006. A340-31-5012, Revision 01, dated December 27, 2004 Installing EIS2 software standard L5 A340-31-5021, dated June 26, 2006. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, mandated the service information and issued EASA airworthiness directive 2006-0196, dated July 10, 2006 (which cancels French airworthiness directive F-2005-166 R1), to ensure the continued airworthiness of these airplanes in the European Union. FAA's Determination and Requirements of the Proposed AD These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States. This proposed AD would supersede AD 2005-17-18 and would retain the requirements of the existing AD. This proposed AD would also require accomplishing the actions specified in service bulletins described previously, which would end the repetitive actions required by AD 2005-17-18. This proposed AD also would add additional airplanes that are subject to the identified unsafe condition of this proposed AD and that may be placed on the U.S. Register in the future. Difference Between the EASA Airworthiness Directive and This Proposed AD The applicability of EASA airworthiness directive 2006-0196 excludes certain airplanes on which Airbus Service Bulletin A330-31-3087, A340-31-4100, or A340-31-5021 has been done in service. However, we have not excluded those airplanes in the applicability of this proposed AD; rather, this proposed AD includes a requirement to accomplish the actions specified in the original issue of those service bulletins. This requirement would ensure that the actions specified in the service bulletins and required by this proposed AD are accomplished on all affected airplanes. Operators must continue to operate the airplane in the configuration required by this proposed AD unless an AMOC is approved. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate per hour is $80. Estimated Costs Action Work hour(s) Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Resetting the DUs (required by AD 2005-17-18) 1 None $80, per reset 27 $2,160, per reset. Installation of new software (new proposed action) 3 The manufacturer states that it will supply required parts to the operators at no cost $240 27 $6,480. Additional requirement (new proposed action) Between 1 and 5 depending on the airplane configuration The manufacturer states that it will supply required parts to the operators at no cost Between $80 and $400, depending on the airplane configuration 27 Between $2,160 and $10,800, depending on the configuration of the fleet. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-14239 (70 FR 50166, August 26, 2005) and adding the following new airworthiness directive (AD): **Airbus:** Docket No. FAA-2007-27565; Directorate Identifier 2006-NM-215-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by April 16, 2007. Affected ADs
(b)This AD supersedes AD 2005-17-18. Applicability
(c)This AD applies to Airbus Model A330 and A340 airplanes; certificated in any category; on which one of the Airbus Electronic Instrument System 2
(EIS2)software versions listed in Table 1 of this AD is installed; excluding those airplanes on which Airbus Modification 53063 has been done in production. Table 1.—Applicability EIS2 software version Installed by this Airbus modification in production Or installed by one of these Airbus service bulletins in service L4-1 51153 A330-31-3056, A330-31-3057, or A340-31-5001. L5 51974 A330-31-3056, A330-31-3069, A340-31-4087, or A340-31-5012. Unsafe Condition
(d)This AD results from an incident in which all of the display units
(DUs)for the EIS went blank simultaneously during flight. We are issuing this AD to prevent automatic reset of the DUs for the EIS during flight and consequent loss of data from the DUs, which could reduce the ability of the flightcrew to control the airplane during adverse flight conditions. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Requirements of AD 2005-17-18 Resetting the DUs for the EIS
(f)For Model A330-201, -202, -203, -223, -243, -301, -321, -322, -323, -341, -342, and -343 airplanes; and Model A340-211, -212, -213, -311, -312, -313, -541, and -642 airplanes: Within 2 days after September 12, 2005 (the effective date of AD 2005-17-18), or within 4 days after the last reset of the DUs for the EIS or complete electrical shutdown of the airplane, whichever is first: Reset the DUs for the EIS by doing the actions in either paragraph (f)(1) or (f)(2) of this AD. Thereafter, do the actions in paragraph (f)(1) or (f)(2) of this AD at intervals not to exceed 4 days.
(1)Switch off each DU for the EIS, wait 5 seconds or longer, and switch the DU back on again, in accordance with Airbus All Operator Telex
(AOT)A330-31A3092 (for Model A330-201, -202, -203, -223, -243, -301, -321, -322, -323, -341, -342, and -343 airplanes), A340-31A4102 (for A340-211, -212, -213, -311, -312, and -313 airplanes), or A340-31A5023 (for Model A340-541 and -642 airplanes), all dated August 1, 2005, as applicable. This action may be performed by the flight deck crew or by certificated maintenance personnel.
(2)Perform a complete electrical shutdown of the airplane. New Requirements of This AD Installation of New Software
(g)For airplanes other than those identified in paragraph
(f)of this AD: Within 2 days after the effective date of this AD, or within 4 days after the last reset of the DUs for the EIS or complete electrical shutdown of the airplane, whichever is first, do the reset specified in paragraph
(f)of this AD and repeat thereafter at intervals not to exceed 4 days, until the installation required by paragraph
(h)of this AD has been done.
(h)For all airplanes: Within 7 months after the effective date of this AD, install EIS2 software standard L6-1 in accordance with the applicable service bulletin identified in Table 2 of this AD. Accomplishing the installation ends the actions required by paragraphs
(f)and
(g)of this AD. Table 2.—Service Bulletins for Installation of New Software Airbus service bulletin— For model—
(1)A330-31-3087, dated June 26, 2006 A330-201, -202, -203, -223, -243, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.
(2)A340-31-4100, dated June 26, 2006 A340-211, -212, -213, -311, -312, and -313 airplanes.
(3)A340-31-5021, dated June 26, 2006 A340-541 and -642 airplanes. Additional Requirements
(i)Prior to accomplishing the requirements specified in paragraph
(g)of this AD, do the applicable action(s) specified in Table 3 of this AD. Table 3.—Additional Requirements For airplanes identified in— Install— In accordance with Airbus service bulletin—
(1)Paragraph (h)(1) of this AD
(i)EIS2 software standard L5 A330-31-3069, Revision 01, dated December 27, 2004.
(ii)Thales display system standard L4 A330-31-3056, Revision 02, dated March 24, 2003.
(2)Paragraph (h)(2) of this AD EIS2 software standard L5 A340-31-4087, Revision 01, dated December 27, 2004.
(3)Paragraph (h)(3) of this AD EIS2 software standard L5 A340-31-5012, Revision 01, dated December 27, 2004. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(3)AMOCs approved previously in accordance with AD 2005-17-18 are approved as AMOCs for the corresponding provisions of paragraph
(f)of this AD. Related Information
(k)European Aviation Safety Agency airworthiness directive 2006-0196, dated July 10, 2006, also addresses the subject of this AD. Issued in Renton, Washington, on March 7, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4741 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27212; Directorate Identifier 2007-CE-011-AD] RIN 2120-AA64 Airworthiness Directives; Air Tractor, Inc. Models AT-602, AT-802, and AT-802A Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to supersede Airworthiness Directive
(AD)2006-22-08, which applies to all Air Tractor, Inc. (Air Tractor) Models AT-602, AT-802, and AT-802A airplanes. AD 2006-22-08 currently requires you to repetitively inspect the engine mount for any cracks, repair or replace any cracked engine mount, and report any cracks found to the FAA. Since we issued AD 2006-22-08, the FAA has received reports of two Model AT-802A airplanes with cracked engine mounts (at 2,815 hours time-in-service
(TIS)and 1,900 hours TIS) below the initial compliance time in AD 2006-22-08. The FAA has determined that an initial inspection at 1,300 hours TIS is required instead of 4,000 hours TIS required by AD 2006-22-08. Consequently, this proposed AD would retain the actions of AD 2006-22-08 while requiring the initial inspection at 1,300 hours TIS. We are proposing this AD to detect and correct cracks in the engine mount, which could result in failure of the engine mount. Such failure could lead to separation of the engine from the airplane. DATES: We must receive comments on this proposed AD by May 14, 2007. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. For service information identified in this proposed AD, contact Air Tractor, Inc., P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; facsimile:
(940)564-5612. FOR FURTHER INFORMATION CONTACT: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; facsimile:
(210)308-3370. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2007-27212; Directorate Identifier 2007-CE-011-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion Two reports from Air Tractor of cracked engine mounts resulting from fatigue caused us to issue AD 2006-22-08, Amendment 39-14805 (71 FR 62910, October 27, 2006). AD 2006-22-08 currently requires the following on all Air Tractor Models AT-602, AT-802, and AT-802A airplanes: • Inspect (initially and repetitively) the engine mount for any cracks; • Repair or replace any cracked engine mount; and • Report any cracks found to the FAA. Since we issued AD 2006-22-08, the FAA has received reports of two Model AT-802A airplanes with cracked engine mounts (at 2,815 hours TIS and 1,900 hours TIS) below the initial compliance time in AD 2006-22-08. The FAA has determined that an initial inspection at 1,300 hours TIS is required instead of 4,000 hours TIS as required by AD 2006-22-08. This condition, if not corrected, could result in failure of the engine mount. Such failure could lead to separation of the engine from the airplane. Relevant Service Information We have reviewed Snow Engineering Co. Service Letter #253, dated December 12, 2005, revised January 22, 2007. The service information describes procedures for performing a visual inspection for cracks of the engine mount and requesting a repair scheme from the manufacturer. Snow Engineering Co. has a licensing agreement with Air Tractor that allows them to produce technical data to use for Air Tractor products. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would supersede AD 2006-22-08 with a new AD that would require you to repetitively inspect the engine mount for any cracks, repair or replace any cracked engine mount, and report any cracks found to the FAA. To repair a cracked engine mount, you would obtain an FAA-approved repair scheme from Air Tractor following the instructions in the service information. This proposed AD would require you to use the service information described previously to perform these actions. Costs of Compliance We estimate that this AD affects 368 airplanes in the U.S. registry. We estimate the following costs to do each required inspection: Labor cost Parts cost Total cost per airplane per inspection Total cost on U.S. operators for initial inspection 1.5 work-hours × $80 per hour = $120 Not Applicable $120 $44,160 We have no way of determining the number of airplanes that may need replacement of the engine mount. We estimate the following costs to do the replacement: Labor cost Parts cost Total cost per airplane per replacement 81 work-hours × $80 per hour = $6,480 $3,982 $10,462 Any required “upon-condition” repairs would vary depending upon the damage found during each inspection. Based on this, we have no way of determining the potential repair costs for each airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://dms.dot.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Airworthiness Directive
(AD)2006-22-08, Amendment 39-14805 (71 FR 62910, October 27, 2006), and adding the following new AD: **Air Tractor, Inc:** Docket No. FAA-2007-27212; Directorate Identifier 2007-CE-011-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by May 14, 2007. Affected ADs
(b)This AD supersedes AD 2006-22-08, Amendment 39-14805. Applicability
(c)This AD affects all Models AT-602, AT-802, and AT-802A airplanes, all serial numbers, that are certificated in any category. Unsafe Condition
(d)This AD results from reports of two Model AT-802A airplanes with cracked engine mounts (at 2,815 hours time-in-service
(TIS)and 1,900 hours TIS) below the initial compliance time in AD 2006-22-08. The FAA has determined that an initial inspection at 1,300 hours TIS is required instead of 4,000 hours TIS as required by AD 2006-22-08. We are issuing this AD to detect and correct cracks in the engine mount, which could result in failure of the engine mount. Such failure could lead to separation of the engine from the airplane. Compliance
(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures
(1)Visually inspect the engine mount for any cracks Initially inspect upon accumulating 1,300 hours TIS or within the next 100 hours TIS after the effective date of this AD, whichever occurs later, unless already done. Thereafter, inspect repetitively at intervals not to exceed 300 hours TIS Follow Snow Engineering Co. Service Letter #253, dated December 12, 2005, revised January 22, 2007.
(2)If you find any crack damage, do the following:
(i)Obtain an FAA-approved repair scheme or replacement procedure from the manufacturer; and
(ii)Repair following the FAA-approved repair scheme or replace the engine mount with a new engine mount following the replacement procedure. Before further flight after any inspection required by paragraph (e)(1) of this AD where crack damage is found. If you repair the cracked engine mount, then continue to reinspect at intervals not to exceed 300 hours TIS, unless the repair scheme states differently. If you replace the engine mount, then initially inspect upon accumulating 1,300 hours TIS and repetitively at intervals not to exceed 300 hours TIS *For obtaining a repair scheme or replacement procedure:* Contact Air Tractor Inc., P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; facsimile:
(940)564-5612.
(3)Report any cracks that you find to the FAA at the address specified in paragraph
(f)of this AD. Include in your report:
(i)Airplane serial number;
(ii)Airplane hours TIS and engine mount hours TIS;
(iii)Crack location(s) and size(s);
(iv)Corrective action taken; and
(v)Point of contact name and telephone number. Within the next 30 days after you find the cracks or within the next 30 days after the effective date of this AD, whichever occurs later The Office of Management and Budget
(OMB)approved the information collection requirements contained in this regulation under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and assigned OMB Control Number 2120-0056. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Fort Worth Airplane Certification Office, FAA, ATTN: Andrew McAnaul, Aerospace Engineer, ASW-150(c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; facsimile:
(210)308-3370, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(g)AMOCs approved for AD 2006-22-08 are not approved for this AD. Related Information
(h)To get copies of the service information referenced in this AD, contact Air Tractor Inc., P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; facsimile:
(940)564-5612. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at *http://ms.dot.gov.* The docket number is Docket No. FAA-2007-27212; Directorate Identifier 2007-CE-011-AD. Issued in Kansas City, Missouri, on March 8, 2007. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4737 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27213; Directorate Identifier 2007-CE-012-AD] RIN 2120-AA64 Airworthiness Directives; British Aerospace Regional Aircraft Model HP.137 Jetstream Mk.1, Jetstream Series 200, Jetstream Series 3101, and Jetstream Model 3201 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Cracking has been found in the nose landing gear steering jack piston rod adjacent to the eye-end. This was caused by the application of excessive tightening torque applied to the eye-end whilst being assembled during component overhaul. Failure of the steering jack piston during operation will result in loss of nose wheel steering, which may lead to loss of directional control during critical phases of take-off and landing. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by April 16, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web Site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*
(202)493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Taylor Martin, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4138; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27213; Directorate Identifier 2007-CE-012-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion On March 25, 2003, we issued AD 2003-07-06, Amendment 39-13102 (68 FR 16195, April 3, 2003). That AD required actions intended to address an unsafe condition on the products listed above. Since we issued AD 2003-07-06, following the completion of their testing, the equipment manufacturer has determined that the fatigue life needs further revision (reduction) and has published inspection criteria and a revised formula for calculating the piston safe life. This calculation and a revised end fitting tightening torque are contained in Revision 1 to APPH Ltd. Service Bulletin 32-76. As a result, pistons, which were previously calculated to have significant remaining life, may now be unserviceable. The Civil Aviation Authority, which is the aviation authority for the United Kingdom, has issued AD No. G-2004-0029, dated December 20, 2004 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Cracking has been found in the nose landing gear steering jack piston rod adjacent to the eye-end. This was caused by the application of excessive tightening torque applied to the eye-end whilst being assembled during component overhaul. Failure of the steering jack piston during operation will result in loss of nose wheel steering, which may lead to loss of directional control during critical phases of take-off and landing. The MCAI requires: The inspections and any required rectification actions detailed in BAe Systems Service Bulletin 32-JA030644 and associated APPH Service Bulletin 32-76 Revision 1 are required to be performed to ensure continued airworthiness of the aircraft. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information BAE Systems has issued British Aerospace Jetstream Series 3100 & 3200 Service Bulletin 32-JA030644, dated October 6, 2003. APPH Ltd. has issued Service Bulletin 32-76, Revision 1, dated August 2003. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 190 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $30,400, or $160 per product. In addition, we estimate that any necessary follow-on actions would take about 8 work-hours and require parts costing $5,300, for a cost of $5,940 per product. We have no way of determining the number of products that may need these actions. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Airworthiness Directive
(AD)2003-07-06, Amendment 39-13102 (68 FR 16195, April 3, 2003), and adding the following new AD: **British Aerospace Regional Aircraft:** Docket No. FAA-2007-27213; Directorate Identifier 2007-CE-012-AD. Comments Due Date
(a)We must receive comments by April 16, 2007. Affected ADs
(b)Supersedes AD 2003-07-06, Amendment 39-13102. Applicability
(c)This AD applies to Model HP.137 Jetstream Mk.1, Jetstream Series 200, Jetstream Series 3101, and Jetstream Model 3201 airplanes, all serial numbers, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 32: Landing Gear. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Cracking has been found in the nose landing gear steering jack piston rod adjacent to the eye-end. This was caused by the application of excessive tightening torque applied to the eye-end whilst being assembled during component overhaul. Failure of the steering jack piston during operation will result in loss of nose wheel steering, which may lead to loss of directional control during critical phases of take-off and landing. Retained Requirements of AD 2003-07-06
(f)Unless already done, do the following actions in accordance with the procedures in APPH Ltd. Service Bulletin 32-76 (pages 1, 2, and 4 through 7, dated October 2002; and page 3, Erratum 1, dated November 2002), as referenced in BAe Systems British Aerospace Jetstream Mandatory Service Bulletin 32-JA020741, Original Issue: November 2, 2002; or APPH Ltd. Service Bulletin 32-76, Revision 1, dated August 2003, as referenced in BAe Systems British Aerospace Jetstream Mandatory Service Bulletin 32-JA030644, Original Issue: October 6, 2003.
(1)Within the next 90 days or 200 ground-air-ground
(GAG)cycles after May 22, 2003 (the effective date of AD 2003-07-06), whichever occurs first, inspect the steering jack piston rod for cracks.
(2)If cracks are found, replace the cracked steering jack piston rod. Install the new steering jack piston rod using a torque setting of 175 lbf (pound force) inch or 20 Nm (Newton meters) when tightening the end fitting and stop bolt.
(3)If no cracks are found, determine the torque setting of the steering jack piston rod end fitting and stop bolt. New Requirements of This AD: Actions and Compliance
(g)Unless already done, do the following actions:
(1)Within 90 days after the effective date of this AD, recalculate the safe life of the steering jack piston rod and re-torque the piston rod eye-end in accordance with APPH Ltd. Service Bulletin 32-76, Revision 1, dated August 2003, as referenced in paragraph 2, Part 2 of BAe Systems Service Bulletin 32-JA030644, dated October 6, 2003.
(2)If the piston rod is found unserviceable when inspected in accordance with APPH Ltd. Service Bulletin 32-76, Revision 1, dated August 2003, as referenced in paragraph 2, Part 2 of BAe Systems Service Bulletin 32-JA030644, dated October 6, 2003, before further flight remove the steering jack and replace with a serviceable unit.
(3)As of the effective date of this AD, before a steering jack piston rod is installed, it must be inspected and the safe life determined in accordance APPH Ltd. Service Bulletin 32-76, Revision 1, dated August 2003, as referenced in paragraph 2 of BAe Systems Service Bulletin 32-JA030644, dated October 6, 2003. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(h)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Staff, FAA, Small Airplane Directorate, ATTN: Taylor Martin, Aerospace Engineer, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4138; fax:
(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)AMOCs approved for AD 2003-07-06 are not approved for this AD.
(3)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(4)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(i)Refer to MCAI Civil Aviation Authority AD No. G-2004-0029, dated December 20, 2004; BAE Systems British Aerospace Jetstream Series 3100 & 3200 Service Bulletin 32-JA030644, dated October 6, 2003; BAe Systems British Aerospace Jetstream Mandatory Service Bulletin 32-JA020741, Original Issue: November 2, 2002; APPH Ltd. Service Bulletin 32-76, Revision 1, dated August 2003; and APPH Ltd. Service Bulletin 32-76 (pages 1, 2, and 4 through 7, dated October 2002; and page 3, Erratum 1, dated November 2002, for related information. Issued in Kansas City, Missouri, on March 8, 2007. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4739 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27525; Directorate Identifier 2006-NM-159-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-300, 747-400, 747-400D, 747SR, and 747SP Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive
(AD)that applies to certain Boeing Model 747 airplanes. The existing AD currently requires repetitive inspections to detect cracks and/or corrosion of the girt bar support fitting at certain main entry doors (MED), and repair or replacement of the support fitting. The existing AD also provides for various terminating actions for the repetitive inspections. This proposed AD would require the following additional actions: An inspection, for certain airplanes, for correct installation of square and conical washers in the girt bar support fitting; an inspection, for certain other airplanes, to determine if the washers are installed; and related investigative and corrective action if necessary. This proposed AD results from a report that the square and conical washers may be installed incorrectly in the girt bar support fitting on airplanes on which the support fitting was repaired or replaced in accordance with the requirements of the existing AD. We are proposing this AD to detect and correct corrosion of the girt bar support fitting, which could result in separation of the escape slide from the lower door sill during deployment, and subsequently prevent proper operation of the escape slides at the main entry doors during an emergency. We are also proposing this AD to detect and correct incorrect installation of the square and conical washers in the girt bar support fitting, which could result in failure of the escape slide when deployed. DATES: We must receive comments on this proposed AD by April 30, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Patrick Gillespie, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6429; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2007-27525; Directorate Identifier 2006-NM-159-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov,* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion On October 31, 1996, we issued AD 96-23-05, amendment 39-9810 (61 FR 58318, November 14, 1996), for certain Boeing Model 747 series airplanes. That AD requires repetitive inspections to detect cracks and/or corrosion of the girt bar support fitting at certain main entry doors (MED); and repair or replacement of the support fitting. That AD also provides for various terminating actions for the repetitive inspections. That AD resulted from reports that, during scheduled deployment tests of main entry door slides, corrosion was found on the floor structure supports for the escape slides of the main deck entry doors on these airplanes. We issued that AD to prevent such corrosion, which could result in separation of the escape slide from the lower door sill during deployment, and subsequently prevent proper operation of the escape slides at the main entry doors during an emergency. Actions Since Existing AD Was Issued Since we issued AD 96-23-05, Boeing has determined that the square and conical washers may be installed incorrectly in the girt bar support fitting on airplanes on which the support fitting was repaired or replaced in accordance with Boeing Service Bulletin 747-53A2378, dated June 24, 1993; Revision 1, dated March 10, 1994; or Revision 2, dated July 24, 2003 (Revision 1 of the service bulletin was referenced as the appropriate source of service information for doing the actions specified in AD 96-23-05). Relevant Service Information We have reviewed Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. The service bulletin contains essentially the same procedures for the actions described in the earlier revisions of the service bulletin, but Revision 3 revises the procedures for the installation of the square and conical washers on the girt bar support fitting. Revision 3 also adds actions for airplanes on which the support fitting was replaced or repaired in accordance with any earlier revision of the service bulletin: • For Groups 7, 8, and 9 airplanes identified in the service bulletin: Do an inspection for correct installation of square and conical washers in the girt bar floor fitting, related investigative action, and corrective actions. The related investigative action is an inspection of the bolts and washers for damage. The corrective actions include installing the square and conical washers correctly and contacting the manufacturer if damage is found. • For Groups 1 through 6 airplanes identified in the service bulletin: Do an inspection to check if square and conical washers are installed in the girt bar floor fitting, related investigative actions, and corrective actions. The related investigative actions include doing an inspection for correct installation of square and conical washers in the girt bar floor fitting and an inspection of the bolts and washers for damage. The corrective actions include installing the square and conical washers correctly and contacting the manufacturer if damage is found. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 96-23-05 and would retain the requirements of the existing AD. This proposed AD would also require the following actions for airplanes on which the support fitting was repaired or replaced in accordance with Boeing Service Bulletin 747-53A2378, dated June 24, 1993; Revision 1, dated March 10, 1994; or Revision 2, dated July 24, 2003: An inspection, for certain airplanes, for correct installation of square and conical washers in the girt bar support fitting; an inspection, for certain other airplanes, to determine if the washers are installed; and related investigative and corrective action if necessary. Differences Between the Proposed AD and the Service Bulletin Although Boeing Service Bulletin 747-53A2378 specifies that operators may contact the manufacturer if certain damage is found, this proposed AD would require operators to repair those conditions using a method approved by the FAA. Although Boeing Service Bulletin 747-53A2378, Revision 3, specifies doing certain actions if Boeing Service Bulletin 747-53A2378, dated June 24, 1993; Revision 1, dated March 10, 1994; or Revision 2, dated July 24, 2003; was accomplished, this proposed AD would require those actions to also be done if Boeing Service Bulletin 747-25A2831, dated August 29, 1991, was accomplished. Paragraph
(m)of AD 96-23-05 allows installation of the girt bar fitting in accordance with Boeing Service Bulletin 747-25A2831 as an acceptable method of compliance. Therefore, installations done in accordance with Boeing Service Bulletin 747-25A2831 should also be inspected for incorrect installation of the square and conical washers in the girt bar support fitting. Change to Existing AD This proposed AD would retain all requirements of AD 96-23-05. Since AD 96-23-05 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table: Revised Paragraph Identifiers Requirement in AD 96-23-05 Corresponding requirement in this proposed AD Note 1 paragraph (f). paragraph
(a)paragraph (g). paragraph
(b)paragraph (h). paragraph
(c)paragraph (i). paragraph
(d)paragraph (j). paragraph
(e)paragraph (k). paragraph
(f)paragraph (l). paragraph
(g)paragraph (m). paragraph
(h)paragraph (n). paragraph
(i)paragraph (o). paragraph
(j)paragraph (p). paragraph
(k)paragraph (q). paragraph
(l)paragraph (r). paragraph
(m)paragraph (s). Note 2 and paragraph
(o)of AD 96-23-05 have been removed from this proposed AD. On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products and alternative methods of compliance (AMOCs), as well as special flight permits (e.g., ferry flights). Clarification of Doors Affected by the Proposed AD We have also revised Note 1 of AD 96-23-05, which has the corresponding requirement in paragraph
(f)of this proposed AD. We have added the statement “the requirements of this AD are also not applicable to doors on airplanes converted to an all-cargo configuration.” Explanation of Change to Applicability We have revised the applicability of the existing AD to identify model designations as published in the most recent type certificate data sheet for the affected models. Special freighters are not identified in the type certificate data sheet so the phrase “special freighters” has been removed from the applicability. However, as stated previously, we have added a statement to exempt doors on airplanes converted to an all-cargo configuration. Explanation of Change Made to Existing Requirements We have changed all references to a “detailed visual inspection” in the existing AD to “detailed inspection” in this proposed AD. Clarification of Alternative Method of Compliance
(AMOC)Paragraph We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies. Costs of Compliance There are about 1,012 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate per hour is $80. The cost varies depending on the configuration of the airplane. Estimated Costs Action Work hours Cost per airplane Number of U.S.-registered airplanes Fleet cost Inspection of MEDs (required by AD 96-23-05) Between 88 and 102 Between $7,040 and $8,160, per inspection cycle 169 Between $1,189,760 and $1,379,040, per inspection cycle. Inspection for correct installation (new proposed action) 6 $480 Up to 169 Up to $81,120. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-9810 (61 FR 58318, November 14, 1996) and adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-27525; Directorate Identifier 2006-NM-159-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by April 30, 2007. Affected ADs
(b)This AD supersedes AD 96-23-05. Applicability
(c)This AD applies to Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-300, 747-400, 747-400D, 747SR, and 747SP series airplanes, certificated in any category, line numbers 1 through 868 inclusive. Unsafe Condition
(d)This AD results from reports that, during scheduled deployment tests of main entry door slides, corrosion was found on the floor structure supports for the escape slides of the main deck entry doors on these airplanes. This AD also results from a report that the square and conical washers may be installed incorrectly in the girt bar support fitting on airplanes on which the support fitting was repaired or replaced in accordance with the requirements of AD 96-23-05. We are issuing this AD to detect and correct corrosion of the girt bar support fitting, which could result in separation of the escape slide from the lower door sill during deployment, and subsequently prevent proper operation of the escape slides at the main entry doors during an emergency. We are also issuing this AD to detect and correct incorrect installation of the square and conical washers in the girt bar support fitting, which could result in failure of the escape slide when deployed. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Restatement of Requirements of AD 96-23-05 With New Service Information Doors Exempt From/Affected by This AD
(f)The requirements of this AD are not applicable to doors where an escape slide or slide/raft is not installed or is not used for passenger egress (such as a deactivated door 3, at doors 4 and/or 5 of an airplane being operated in the “combi” configuration, or any door not used for passenger egress in a “convertible” (an airplane configured for quick change from passenger to cargo)). The requirements of this AD are also not applicable to doors on airplanes converted to an all-cargo configuration. The requirements of this AD become applicable at the time when an escape slide or slide/raft is installed on such doors, or when such doors are activated and/or converted for passenger use. The requirements also become applicable at the time an airplane operating in an all-cargo configuration is converted to a passenger or passenger/cargo configuration. Inspections and Corrective Actions for Airplanes Equipped With Main Entry Door
(MED)1
(g)For airplanes equipped with MED 1: Prior to the accumulation of 16 years of service since date of manufacture of the airplane, or within 18 months after December 16, 1996 (the effective date of AD 96-23-05), whichever occurs later, perform a detailed inspection to detect cracking and/or corrosion of the girt bar support fitting at the left and right MED 1, in accordance with Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used.
(h)If no cracking or corrosion is found during the inspection required by paragraph
(g)of this AD, prior to further flight, accomplish either paragraph (h)(1) or (h)(2) of this AD, in accordance with the applicable instructions specified in Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used.
(1)Install a new fitting with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with the service bulletin. After these actions are accomplished, no further action is required by paragraph
(h)of this AD; or
(2)Reinstall the threshold assembly with corrosion-resistant fasteners, in accordance with the service bulletin. Thereafter, repeat the inspection required by paragraph
(g)of this AD at intervals not to exceed 6 years.
(i)If any cracking is found during the inspection required by paragraph
(g)or (h)(2) of this AD, prior to further flight, install a new fitting with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used. After these actions are accomplished, no further action is required by this paragraph.
(j)If any corrosion is found during the inspection required by paragraph
(g)or (h)(2) of this AD, prior to further flight, accomplish either paragraph (j)(1) or (j)(2) of this AD, in accordance with Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used.
(1)Install a new fitting with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph; or
(2)Blend out corrosion in accordance with the service bulletin.
(i)If blend out of corrosion is beyond 10 percent of original thickness or any crack is found during accomplishment of the blend out procedures, install a new fitting with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph.
(ii)If blend out of corrosion does not exceed 10 percent of original material thickness, accomplish either paragraph (j)(2)(ii)(A) or (j)(2)(ii)(B) of this AD:
(A)Install a new fitting with new fasteners, and reinstall threshold assembly with new corrosion-resistant fasteners, in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph; or
(B)Install the repaired fitting with new fasteners and reinstall the threshold assembly with corrosion-resistant fasteners, in accordance with the service bulletin. Thereafter, repeat the inspection and applicable corrective actions required by paragraph
(g)of this AD at intervals not to exceed 6 years. Inspections and Corrective Actions for Airplanes Equipped With MED 2, 4, and/or 5 (MED 2, 3, and/or 4 on Model 747SP Series Airplanes)
(k)For airplanes equipped with MED 2, 4, and/or 5 (MED 2, 3, and/or 4 on Model 747SP series airplanes): Prior to the accumulation of 10 years of service since date of manufacture of the airplane, or within 18 months after December 16, 1996, whichever occurs later, perform a detailed inspection to detect cracking and/or corrosion of the girt bar support fitting at the left and right MED 2, 4, and 5 (MED 2, 3, and 4 on Model 747SP series airplanes), in accordance with Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used.
(l)If no cracking or corrosion is found during the inspection required by paragraph
(k)of this AD, prior to further flight, accomplish either paragraph (l)(1) or (l)(2) of this AD, in accordance with the applicable instructions in Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used.
(1)Remove the inspected fitting and reinstall it with a new coat of primer and new fasteners; and reinstall the threshold assembly with new corrosion-resistant fasteners; in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph; or
(2)Reinstall the serrated plate assembly and the girt bar floor fitting with corrosion-resistant fasteners, in accordance with the service bulletin. Thereafter, repeat the inspection required by paragraph
(k)of this AD at intervals not to exceed 6 years.
(m)If any cracking is found during the inspection required by paragraph
(k)or (l)(2) of this AD, prior to further flight, install a new fitting with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used. After these actions are accomplished, no further action is required by this paragraph.
(n)If any corrosion is found during the inspection required by paragraph
(k)or (l)(2) of this AD, prior to further flight, accomplish either paragraph (n)(1) or (n)(2) of this AD, in accordance with Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used.
(1)Install a new fitting with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph; or
(2)Blend out corrosion in accordance with the service bulletin.
(i)If blend out of corrosion is beyond 10 percent of original thickness or any crack is found during accomplishment of the blend out procedures, install a new fitting with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph.
(ii)If blend out of corrosion does not exceed 10 percent of original material thickness, install the repaired fitting with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph.
(o)For airplanes equipped with main entry door
(MED)3 (this paragraph does not apply to Model 747SP series airplanes): Prior to the accumulation of 16 years of service since date of manufacture of the airplane, or within 18 months after December 16, 1996, whichever occurs later, perform a detailed inspection to detect cracking and/or corrosion of the girt bar support angles at the left and right MED 3, in accordance with Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used.
(p)If no cracking or corrosion is found during the inspection required by paragraph
(o)of this AD, prior to further flight, accomplish either paragraph (p)(1) or (p)(2) of this AD in accordance with the applicable instructions in Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used.
(1)Remove the inspected angle and reinstall it with a new coat of primer and new fasteners; and reinstall the threshold assembly with new corrosion-resistant fasteners; in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph; or
(2)Reinstall the corner scuff plate and the threshold apron with corrosion-resistant fasteners, in accordance with the service bulletin. Thereafter, repeat the inspection required by paragraph
(o)of this AD at intervals not to exceed 6 years.
(q)If any crack common to the support angles is found during the inspection required by paragraph
(o)or (p)(2) of this AD, prior to further flight, accomplish the actions specified in paragraph (q)(1) or (q)(2), as applicable, in accordance with Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used:
(1)Install the new angles with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners. After these actions are accomplished, no further action is required by this paragraph of this AD; or
(2)For any cracking found only in the corner casting as specified in the service bulletin, accomplish either paragraph (q)(2)(i) or (q)(2)(ii) prior to further flight:
(i)Replace the corner casting in accordance with the service bulletin; or
(ii)Repair the cracked part in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA, Transport Airplane Directorate. Refer to paragraph
(w)of this AD for the appropriate procedure for seeking such an approval. (This option is provided in order to give operators time to obtain a replacement corner casing without grounding an airplane.) This repair is considered temporary action only; replacement of the corner casting eventually must be accomplished in accordance with a schedule prescribed by the Manager, Seattle ACO.
(r)If any corrosion is found during the inspection required by paragraph
(o)of this AD, prior to further flight, accomplish either paragraph (r)(1) or (r)(2) of this AD, in accordance with Boeing Service Bulletin 747-53A2378, Revision 1, dated March 10, 1994; or Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005. After the effective date of this AD, only Revision 3 may be used.
(1)Install the new angles with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph; or
(2)Blend out corrosion in accordance with the service bulletin.
(i)If blend out of corrosion is beyond 10 percent of original thickness, or if any crack common to the support angles is found during accomplishment of the blend out procedures, install the new angles with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph.
(ii)If blend out of corrosion does not exceed 10 percent of original material thickness, install the repaired angles with new fasteners, and reinstall the threshold assembly with new corrosion-resistant fasteners, in accordance with the service bulletin. After these actions are accomplished, no further action is required by this paragraph. Actions Accomplished According to Previous Issue of Service Bulletin
(s)Installation of a girt bar support fitting in accordance with Boeing Service Bulletin 747-25A2831, dated August 29, 1991, before the effective date of this AD, is considered acceptable for compliance with the corresponding requirements of paragraphs (h), (i), (j), (l), (m), and
(n)of this AD for each affected fitting location. New Requirements of This AD Inspections for the Washers and Related Investigative/Corrective Actions
(t)For Groups 7, 8, and 9 airplanes identified in Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005, on which the support fitting was replaced or repaired in accordance with Boeing Service Bulletin 747-53A2378, dated June 24, 1993; Revision 1, dated March 10, 1994; or Revision 2, dated July 24, 2003; or Boeing Service Bulletin 747-25A2831, dated August 29, 1991: Within 18 months after the effective date of this AD, do a general visual inspection for correct installation of square and conical washers in the girt bar floor fittings, and, before further flight, do all applicable related investigative and corrective actions. Do all actions in accordance with Figure 18 and the applicable steps specified on page 52 of the Accomplishment Instructions of Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005, except as provided by paragraph
(v)of this AD.
(u)For Groups 1 through 6 airplanes identified in Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005, on which the support fitting was replaced or repaired in accordance with Boeing Service Bulletin 747-53A2378, dated June 24, 1993; Revision 1, dated March 10, 1994; or Revision 2, dated July 24, 2003; or with Boeing Service Bulletin 747-25A2831, dated August 29, 1991: Within 18 months after the effective date of this AD, do a general visual inspection to determine if square and conical washers are installed in the girt bar floor fittings, and before further flight, do all applicable related investigative and corrective actions. Do all actions in accordance with Figure 18 and the applicable steps specified on pages 52 and 53 of the Accomplishment Instructions of Boeing Service Bulletin 747-53A2378, Revision 3, dated August 11, 2005, except as provided by paragraph
(v)of this AD.
(v)If any damage is found during any inspection required by paragraphs
(t)and
(u)of this AD, and the bulletin specifies contacting Boeing for appropriate action: Before further flight, do the repair using a method approved by the Manager, Seattle ACO, FAA, or in accordance with data meeting the certification basis of the airplane approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. Alternative Methods of Compliance (AMOCs) (w)(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(3)AMOCs approved previously in accordance with AD 96-23-05, are approved as AMOCs for the corresponding provisions of this AD. Issued in Renton, Washington, on March 7, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-4738 Filed 3-14-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF DEFENSE Department of the Army 32 CFR Part 635 [Docket No. USA-2007-0007] RIN 0702-AA56 Law Enforcement Reporting AGENCY: Department of the Army, DoD. ACTION: Proposed rule; request for comments. SUMMARY: The Department of the Army proposes to amend its regulation concerning law enforcement reporting. The regulation prescribes policies and procedures on preparing, reporting, using, retaining, and disposing of Military Police Reports. The regulation prescribes policies and procedures for offense reporting and the release of law enforcement information. DATES: Consideration will be given to all comments received by April 16, 2007. ADDRESSES: You may submit comments, identified by 32 CFR Part 635, Docket No. USA-2007-0007 and/or RIN 0702-AA56, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *Mail:* Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number
(RIN)for this **Federal Register** document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at *http://www.regulations.gov* as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: James Crumley,
(703)692-6721. SUPPLEMENTARY INFORMATION: A. Background In the December 9, 2005 issue of the **Federal Register** (70 FR 73181) the Department of the Army published a proposed rule, amending 32 CFR part 635. The Department of the Army published a proposed rule in the May 15, 2006 issue of the **Federal Register** (71 FR 27961) amending 32 CFR 635 to add the sexual assault reporting procedures. This proposed rule makes numerous administrative changes throughout the document to reflect the changes to the forthcoming update to AR 190-45. The Administrative Procedure Act, as amended by the Freedom of Information Act requires that certain policies and procedures and other information concerning the Department of the Army be published in the **Federal Register** . The policies and procedures covered by this part fall into that category. B. Regulatory Flexibility Act The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the proposed rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. C. Unfunded Mandates Reform Act The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the proposed rule does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate, or the private sector, of $100 million or more. D. National Environmental Policy Act The Department of the Army has determined that the National Environmental Policy Act does not apply because the proposed rule does not have an adverse impact on the environment. E. Paperwork Reduction Act The Department of the Army has determined that the Paperwork Reduction Act does not apply because the proposed rule does not involve collection of information from the public. F. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights) The Department of the Army has determined that Executive Order 12630 does not apply because the proposed rule does not impair private property rights. G. Executive Order 12866 (Regulatory Planning and Review) The Department of the Army has determined that according to the criteria defined in Executive Order 12866 this proposed rule is not a significant regulatory action. As such, the proposed rule is not subject to Office of Management and Budget review under section 6(a)(3) of the Executive Order. H. Executive Order 13045 (Protection of Children From Environmental Health Risk and Safety Risks) The Department of the Army has determined that according to the criteria defined in Executive Order 13045 this proposed rule does not apply. I. Executive Order 13132 (Federalism) The Department of the Army has determined that according to the criteria defined in Executive Order 13132 this proposed rule does not apply because it will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Frederick W. Bucher, Chief, Law Enforcement Policy and Oversight Branch. List of Subjects in 32 CFR Part 635 Crime, Law, Law enforcement, Law enforcement officers, Military law. For reasons stated in the preamble the Department of the Army proposes to revise 32 CFR part 635 to read as follows: PART 635—LAW ENFORCEMENT REPORTING Subpart A—Records Administration Sec. 635.1 General. 635.2 Safeguarding official information. 635.3 Special requirements of the Privacy Act of 1974. 635.4 Administration of expelled or barred persons file. 635.5 Police intelligence/criminal information. 635.6 Name checks. 635.7 Registration of sex offenders. Subpart B—Release of Information 635.8 General. 635.9 Guidelines for disclosure within DOD. 635.10 Release of information. 635.11 Release of information under the Freedom of Information Act (FOIA). 635.12 Release of information under the Privacy Act of 1974. 635.13 Amendment of records. 635.14 Accounting for military police record disclosure. 635.15 Release of law enforcement information furnished by foreign governments or international organizations. Subpart C—Offense Reporting 635.16 General. 635.17 Military Police Report. 635.18 Identifying criminal incidents and subjects of investigation. 635.19 Offense codes. 635.20 Military Police Codes (MPC). 635.21 USACRC control numbers. 635.22 Reserve component, U.S. Army Reserve, and Army National Guard personnel. 635.23 DA Form 4833 (Commander's Report of Disciplinary or Administrative Action). 635.24 Updating the COPS MPRS. 635.25 Submission of criminal history data to the CJIS. 635.26 Procedures for reporting absence without leave
(AWOL)and desertion offenses. 635.27 Vehicle Registration System. 635.28 Procedures for restricted/unrestricted reporting in sexual assault cases. 635.29 Domestic violence and protection orders. 635.30 Establishing Domestic Violence Memoranda of Understanding. 635.31 Lost, abandoned, or unclaimed property. Subpart D—Army Quarterly Trends and Analysis Report 635.32 General. 635.33 Crime rate reporting. Subpart E—Victim and Witness Assistance Procedures 635.34 General. 635.35 Procedures. 635.36 Notification. 635.37 Statistical reporting requirements. Authority: 28 U.S.C. 534 note, 42 U.S.C. 10601, 18 U.S.C. 922, 42 U.S.C. 14071, 10 U.S.C. 1562, 10 U.S.C. Chap. 47 Subpart A—Records Administration § 635.1 General.
(a)Military police records and files created under provisions of this part will be maintained and disposed of in accordance with instructions and standards prescribed by Army Regulation
(AR)25-400-2, AR 25-55, AR 340-21, and other applicable HQDA directives.
(b)Each Provost Marshal/Director of Emergency Services will appoint in writing two staff members, one primary and one alternate, to account for and safeguard all records containing personal information protected by law. Action will be taken to ensure that protected personal information is used and stored only where facilities and conditions will preclude unauthorized or unintentional disclosure.
(c)Personally identifying information includes, for example, information that is intimate or private to an individual, as distinguished from that which concerns a person's official function or public life. Specific examples include the social security number
(SSN)medical history, home address, and home telephone number.
(d)Access to areas in which military police records are prepared, processed and stored will be restricted to those personnel whose duties require their presence or to other personnel on official business. Military police records containing personal information will be stored in a locked room or locked filing cabinet when not under the personal control of authorized personnel. Alternate storage systems providing equal or greater protection may be used in accordance with AR 25-55.
(e)Only personnel on official business can have access to areas in which computers are used to store, process or retrieve military police records. When processing military police information, computer video display monitors will be positioned so that protected information cannot be viewed by unauthorized persons. Computer output from automated military police systems will be controlled as specified in paragraph
(d)of this section.
(f)Output from any locally prepared data or automated systems containing personal information subject to the Privacy Act will be controlled per AR 340-21. All locally created, Army Commands (ACOM), Army Service Component Commands
(ASCC)or Direct Reporting Units
(DRU)unique automated systems of records containing law enforcement information must be reported to and approved by HQDA, Office of the Provost Marshal General prior to use. The request must clearly document why the COPS MPRS system cannot meet the requirements or objectives of the organization. After review and approval by HQDA, the installation, ACOM, ASCC and DRU will complete and process the systems notice for publication in the **Federal Register** per AR 340-21 and the Privacy Act.
(g)Provost Marshals/Directors of Emergency Services using automated systems will appoint, in writing, an Information Assurance Security Officer
(IASO)who will ensure implementation of automation security requirements within the organization. Passwords used to control systems access will be generated, issued, and controlled by the IASO.
(h)Supervisors at all levels will ensure that personnel whose duties involve preparation, processing, filing, and release of military police records are knowledgeable of and comply with policies and procedures contained in this part, AR 25-55, AR 340-21, and other applicable HQDA directives. Particular attention will be directed to provisions on the release of information and protection of privacy.
(i)Military police records identifying juveniles as offenders will be clearly marked as juvenile records and will be kept secure from unauthorized access by individuals. Juvenile records may be stored with adult records but clearly designated as juvenile records even after the individual becomes of legal age. In distributing information on juveniles, Provost Marshals/Directors of Emergency Services will ensure that only individuals with a clear reason to know the identity of a juvenile are provided the identifying information on the juvenile. For example, a community commander is authorized to receive pertinent information on juveniles. When a MPR identifying juvenile offenders must be provided to multiple commanders or supervisors, the Provost Marshal/Director of Emergency Services must sanitize each report to withhold juvenile information not pertaining to that commander's area of responsibility.
(j)Military police records in the custody of USACRC will be processed, stored and maintained in accordance with policy established by the Director, USACRC. § 635.2 Safeguarding official information.
(a)Military police records are unclassified except when they contain national security information as defined in AR 380-5.
(b)When military police records containing personal information transmitted outside the installation law enforcement community to other departments and agencies within DOD, such records will be marked “For Official Use Only.” Records marked “For Official Use Only” will be transmitted as prescribed by AR 25-55. Use of an expanded marking is required for certain records transmitted outside DOD per AR 25-55.
(c)Military police records may also be released to Federal, state, local or foreign law enforcement agencies as prescribed by AR 340-21. Expanded markings will be applied to these records. § 635.3 Special requirements of the Privacy Act of 1974.
(a)Certain personal information is protected under the Privacy Act and AR 340-21.
(b)Individuals requested to furnish personal information must be advised of the purpose for which the information is collected and the disclosures by which it is routinely used.
(c)Army law enforcement personnel performing official duties often require an individual's SSN for identification purposes. Personal information may be obtained from identification documents without violating an individual's privacy and without providing a Privacy Act Statement. This personal information can be used to complete military police reports and records. The following procedures may be used to obtain SSNs:
(1)Active Army, U.S. Army Reserve (USAR), Army National Guard
(ARNG)and retired military personnel are required to produce their Common Access Card, DD Form 2 (Act), DD Form 2 (Res), or DD Form 2
(Ret)(U.S. Armed Forces of the United States General Convention Identification Card), or other government issued identification, as appropriate.
(2)Family members of sponsors may be requested to produce their DD Form 1173 (Uniformed Services Identification and Privilege Card). Information contained thereon (for example, the sponsor's SSN) may be used to verify and complete applicable sections of MPRs and related forms.
(3)DOD civilian personnel may be requested to produce their appropriate service identification. DA Form 1602 (Civilian Identification) may be requested from DA civilian employees. If unable to produce such identification, DOD civilians may be requested to provide other verifying documentation.
(4)Non-DOD civilians, including family members and those whose status is unknown, will be advised of the provisions of the Privacy Act Statement when requested to disclose their SSN.
(d)Requests for new systems of military police records, changes to existing systems, and continuation systems, not addressed in existing public notices will be processed as prescribed in AR 340-21, after approval is granted by HQDA, OPMG (DAPM-MPD-LE). § 635.4 Administration of expelled or barred persons file.
(a)When action is completed by an installation commander to bar an individual from the installation under 18 U.S.C. 1382 the installation Provost Marshal/Director of Emergency Services will be provided
(1)A copy of the letter or order barring the individual.
(2)Reasons for the bar.
(3)Effective date of the bar and period covered.
(b)The Provost Marshal/Director of Emergency Services will maintain a list of barred or expelled persons. When the bar or expulsion action is predicated on information contained in military police investigative records, the bar or expulsion document will reference the appropriate military police record or MPR. When a MPR results in the issuance of a bar letter the Provost Marshal/Director of Emergency Services will forward a copy of the bar letter to Director, USACRC to be filed with the original MPR. The record of the bar will also be entered into COPS, in the Military Police Reporting System module, under Barrings. § 635.5 Police intelligence/criminal information.
(a)The purpose of gathering police intelligence is to identify individuals or groups of individuals in an effort to anticipate, prevent, or monitor possible criminal activity. If police intelligence is developed to the point where it factually establishes a criminal offense, an investigation by the military police, U.S. Army Criminal Investigation Command (USACIDC) or other investigative agency will be initiated. The crimes in § 635.5(b)(2) and
(3)will be reported to the nearest Army counterintelligence office as required by AR 381-12.
(b)Information on persons and organizations not affiliated with DOD may not normally be acquired, reported, processed or stored. Situations justifying acquisition of this information include, but are not limited to—
(1)Theft, destruction, or sabotage of weapons, ammunition, equipment facilities, or records belonging to DOD units or installations.
(2)Possible compromise of classified defense information by unauthorized disclosure or espionage.
(3)Subversion of loyalty, discipline, or morale of DA military or civilian personnel by actively encouraging violation of laws, disobedience of lawful orders and regulations, or disruption of military activities.
(4)Protection of Army installations and activities from potential threat.
(5)Information received from the FBI, state, local, or international law enforcement agencies which directly pertain to the law enforcement mission and activity of the installation Provost Marshal Office/Directorate of Emergency Services, ACOM, ASCC or DRU Provost Marshal Office Directorate of Emergency Services, or that has a clearly identifiable military purpose and connection. A determination that specific information may not be collected, retained or disseminated by intelligence activities does not indicate that the information is automatically eligible for collection, retention, or dissemination under the provisions of this part. The policies in this section are not intended and will not be used to circumvent any federal law that restricts gathering, retaining or dissemination of information on private individuals or organizations.
(c)Retention and disposition of information on non-DOD affiliated individuals and organizations are subject to the provisions of AR 380-13 and AR 25-400-2.
(d)Police intelligence such as TALON events will be captured by utilizing the TALON report format. These reports will be identified as “Pre-TALON” reports. The Provost Marshal Office/Directorate of Emergency Services will forward these reports to the counterintelligence activity which supports their installation/area. The counterintelligence activity will determine if the suspicious incident/activity should be entered into the DoD TALON reporting system. The counterintelligence activity will inform the submitting Army law enforcement agency as to whether or not the “Pre-Talon” report was submitted into the DoD TALON reporting system.
(e)In addition to Pre-TALON reporting, Installation Law Enforcement Agencies/Activities will also comply with their Combatant Command's policies regarding the reporting of suspicious activities or events which meet established criteria.
(f)If a written extract from local police intelligence files is provided to an authorized investigative agency, the following will be included on the transmittal documents: “THIS DOCUMENT IS PROVIDED FOR INFORMATION AND USE. COPIES OF THIS DOCUMENT, ENCLOSURES THERETO, AND INFORMATION THEREFROM, WILL NOT BE FURTHER RELEASED WITHOUT THE PRIOR APPROVAL OF THE INSTALLATION PROVOST MARSHAL/DIRECTOR OF EMERGENCY SERVICES.”
(g)Local police intelligence files may be exempt from certain disclosure requirements by AR 25-55 and the Freedom of Information Act (FOIA). § 635.6 Name checks.
(a)Information contained in military police records may be released under the provisions of AR 340-21 to authorized personnel for valid background check purposes. Examples include child care/youth program providers, access control, unique or special duty assignments, and security clearance procedures. Any information released must be restricted to that necessary and relevant to the requester's official purpose. Provost Marshals/Directors of Emergency Services will establish written procedures to ensure that release is accomplished in accordance with AR 340-21.
(b)Checks will be accomplished by a review of the COPS MPRS. Information will be disseminated according to Subpart B of this part.
(c)In response to a request for local files or name checks, Provost Marshals/Directors of Emergency Services will release only founded offenses with final disposition. Offenses determined to be unfounded will not be released. These limitations do not apply to requests submitted by law enforcement agencies for law enforcement purposes, and counterintelligence investigative agencies for counterintelligence purposes.
(d)COPS MPRS is a database, which will contain all military police reports filed worldwide. Authorized users of COPS MPRS can conduct name checks for criminal justice purposes. To conduct a name check, users must have either the social security number/foreign national number, or the first and last name of the individual. If a search is done by name only, COPS MPRS will return a list of all matches to the data entered. Select the appropriate name from the list.
(e)A successful query of COPS MPRS would return the following information:
(1)Military Police Report Number;
(2)Report Date;
(3)Social Security Number;
(4)Last Name;
(5)First Name;
(6)Protected Identity (Y/N);
(7)A link to view the military police report; and
(8)Whether the individual is a subject, victim, or a person related to the report disposition.
(f)Name checks will include the criteria established in COPS MPRS and the USACRC. All of the policies and procedures for such checks will conform to the provisions of this part. Any exceptions to this policy must be coordinated with HQDA, Office of the Provost Marshal General before any name checks are conducted. The following are examples of appropriate uses of the name check feature of COPS MPRS:
(1)Individuals named as the subjects of serious incident reports.
(2)Individuals named as subjects of investigations who must be reported to the USACRC.
(3)Employment as child care/youth program providers.
(4)Local checks of the COPS MPRS as part of placing an individual in the COPS MPRS system.
(5)Name checks for individuals employed in law enforcement positions.
(g)Provost Marshals/Directors of Emergency Services will ensure that an audit trail is established and maintained for all information released from military police records.
(h)Procedures for conduct of name checks with the USACRC are addressed in AR 195-2. The following information is required for USACRC name checks (when only the name is available, USACRC should be contacted telephonically for assistance):
(1)Full name, date of birth, SSN, and former service number of the individual concerned.
(2)The specific statute, directive, or regulation on which the request is based, when requested for other than criminal investigative purposes.
(i)Third party checks (first party asks second party to obtain information from third party on behalf of first party) will not be conducted. § 635.7 Registration of sex offenders. Soldiers who are convicted by court-martial for certain sexual offenses must comply with all applicable state registration requirements in effect in the state in which they reside. See AR 190-47, Chapter 14 and AR 27-10, Chapter 24. This is a statutory requirement based on the Jacob Wetterling Act, and implemented by DOD Instruction 1325.7, and AR 27-10. Provost Marshals/Directors of Emergency Services should coordinate with their local Staff Judge Advocate to determine if an individual must register. The registration process will be completed utilizing the state registration form, which is available through state and local law enforcement agencies. A copy of the completed registration form will be maintained in the installation Provost Marshal Office/Directorate of Emergency Services. Additionally, a Military Police Report (DA Form 3975) will be completed as an information entry into COPS. Installation Provost Marshals/Directors of Emergency Services will provide written notice to state and local law enforcement agencies of the arrival of an offender to the local area so the registration process can be completed. Subpart B—Release of Information § 635.8 General.
(a)The policy of HQDA is to conduct activities in an open manner and provide the public accurate and timely information. Accordingly, law enforcement information will be released to the degree permitted by law and Army regulations.
(b)Any release of military police records or information compiled for law enforcement purposes, whether to persons within or outside the Army, must be in accordance with the FOIA and Privacy Act.
(c)Requests by individuals for access to military police records about themselves will be processed in compliance with AR 25-55 and AR 340-21.
(d)Military police records in the temporary possession of another organization remain the property of the originating law enforcement agency. The following procedures apply to any organization authorized temporary use of military police records:
(1)Any request from an individual seeking access to military police records will be immediately referred to the originating law enforcement agency for processing.
(2)When the temporary purpose of the using organization has been satisfied, the military police records will be destroyed or returned to the originating law enforcement agency.
(3)A using organization may maintain information from military police records in their system of records, if approval is obtained from the originating law enforcement agency. This information may include reference to a military police record (for example, MPR number or date of offense), a summary of information contained in the record, or the entire military police record. When a user includes a military police record in its system of records, the originating law enforcement agency may delete portions from that record to protect special investigative techniques, maintain confidentiality, preclude compromise of an investigation, and protect other law enforcement interests. § 635.9 Guidelines for disclosure within DOD.
(a)Criminal record information contained in military police documents will not be disseminated unless there is a clearly demonstrated official need to know. A demonstrated official need to know exists when the record is necessary to accomplish a function that is within the responsibility of the requesting activity or individual, is prescribed by statute, DOD directive, regulation, or instruction, or by Army regulation.
(1)Criminal record information may be disclosed to commanders or staff agencies to assist in executing criminal justice functions. Only that information reasonably required will be released. Such disclosure must clearly relate to a law enforcement function.
(2)Criminal record information related to subjects of criminal justice disposition will be released when required for security clearance procedures.
(3)Criminal record information may be released to an activity when matters of national security are involved.
(4)When an individual informs an activity of criminal record information pertaining to them, the receiving activity may seek verification of this information through the responsible law enforcement agency or may forward the request to that organization. The individual must be advised by the receiving agency of the action being pursued. Law enforcement agencies will respond to such requests in the same manner as FOIA and Privacy Act cases.
(b)Nothing in this part will be construed to limit the dissemination of information between military police, the USACIDC, and other law enforcement agencies within the Army and DOD. § 635.10 Release of information.
(a)Release of information from Army records to agencies outside DOD will be governed by AR 25-55, AR 340-21, AR 600-37, and this part. Procedures for release of certain other records and information is contained in AR 20-1, AR 27-20, AR 27-40, AR 40-66, AR 195-2, AR 360-1, and AR 600-85. Installation drug and alcohol offices may be provided an extract of DA Form 3997 (Military Police Desk Blotter) for offenses involving the use of alcohol or drugs (for example, drunk driving, drunk and disorderly conduct, or positive urinalysis) or illegal use of drugs.
(b)Installation Provost Marshals/Directors of Emergency Services are the release authorities for military police records under their control. They may release criminal record information to other activities as prescribed in AR 25-55 and AR 340-21, and this part.
(c)Authority to deny access to criminal records information rests with the initial denial authority
(IDA)for the FOIA and the access and amendment refusal authority
(AARA)for Privacy Acts cases, as addressed in AR 25-55 and AR 340-21. § 635.11 Release of information under the Freedom of Information Act (FOIA).
(a)The release and denial authorities for all FOIA cases concerning military police records include Provost Marshals/Directors of Emergency Services and the Commander, USACIDC. Authority to act on behalf of the Commander, USACIDC is delegated to the Director, USACRC.
(b)FOIA requests from members of the press will be coordinated with the installation public affairs officer prior to release of records under the control of the installation Provost Marshal/Director of Emergency Services. When the record is on file at the USACRC the request must be forwarded to the Director, USACRC.
(c)Requests will be processed as prescribed in AR 25-55 and as follows:
(1)The Provost Marshal/Director of Emergency Services will review requested reports to determine if any portion is exempt from release. Any discretionary decision to disclose information under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.
(2)Statutory and policy questions will be coordinated with the local staff judge advocate.
(3)Coordination will be completed with the local USACIDC activity to ensure that the release will not interfere with a criminal investigation in progress or affect final disposition of an investigation.
(4)If it is determined that a portion of the report, or the report in its entirety will not be released, the request to include a copy of the MPR or other military police records will be forwarded to the Director, USACRC, ATTN: CICR-FP, 6010 6th Street, Fort Belvoir, VA 22060-5585. The requestor will be informed that their request has been sent to the Director, USACRC, and provided the mailing address for the USACRC. When forwarding FOIA requests, the outside of the envelope will be clearly marked “FOIA REQUEST.”
(5)A partial release of information by a Provost Marshal/Director of Emergency Services is permissible when partial information is acceptable to the requester. (An example would be the deletion of a third party's social security number, home address, and telephone number, as permitted by law). If the requester agrees to the omission of exempt information, such cases do not constitute a denial. If the requester insists on the entire report, a copy of the report and the request for release will be forwarded to the Director, USACRC. There is no requirement to coordinate such referrals at the installation level. The request will simply be forwarded to the Director, USACRC for action.
(6)Requests for military police records that have been forwarded to USACRC and are no longer on file at the installation Provost Marshal Office/Directorate of Emergency Services will be forwarded to the Director, USACRC for processing.
(7)Requests concerning USACIDC reports of investigation or USACIDC files will be referred to the Director, USACRC. In each instance, the requestor will be informed of the referral and provided the Director, USACRC address.
(8)Requests concerning records that are under the supervision of an Army activity, or other DOD agency, will be referred to the appropriate agency for response. § 635.12 Release of information under the Privacy Act of 1974.
(a)Military police records may be released according to provisions of the Privacy Act of 1974, as implemented by AR 340-21 and this part.
(b)The release and denial authorities for all Privacy Act cases concerning military police records are provided in § 635.10 of this part.
(c)Privacy Act requests for access to a record, when the requester is the subject of that record, will be processed as prescribed in AR 340-21. § 635.13 Amendment of records.
(a)*Policy.* An amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that actually occurred. For example, a request to remove an individual's name as the subject of a MPR would be proper providing credible evidence was presented to substantiate that a criminal offense was not committed or did not occur as reported. Expungement of a subject's name from a record because the commander took no action or the prosecutor elected not to prosecute normally will not be approved. In compliance with DOD policy, an individual will still remain entered in the Defense Clearance Investigations Index
(DCII)to track all reports of investigation.
(b)*Procedures.*
(1)Installation Provost Marshals/Directors of Emergency Services will review amendment requests. Upon receipt of a request for an amendment of a military police record that is 5 or less years old, the installation Provost Marshal/Director of Emergency Services will gather all relevant available records at their location. The installation Provost Marshal/Director of Emergency Services will review the request and either approve the request or forward it to the Director, USACRC with recommendation and rationale for denial. In accordance with AR 340-21, paragraph 1-71, the Commanding General, USACIDC is the sole access and amendment authority for criminal investigation reports and military police reports. Access and amendment refusal authority is not delegable. If the decision is made to amend a MPR, a supplemental DA Form 3975 will be prepared. The supplemental DA Form 3975 will change information on the original DA Form 3975 and will be mailed to the Director, USACRC with the amendment request from the requestor as an enclosure. The Director, USACRC will file the supplemental DA Form 3975 with the original MPR and notify the requestor of the amendment of the MPR.
(2)Requests to amend military police documents that are older than 5 years will be coordinated through the Director, USACRC. The installation Provost Marshal/Director of Emergency Services will provide the Director, USACRC a copy of an individual's request to amend a military police record on file at the USACRC. If the Director, USACRC receives an amendment request, the correspondence with any documentation on file at the USACRC will be sent to the originating Provost Marshal Office/Directorate of Emergency Services. The installation Provost Marshal/Director of Emergency Services will review the request and either approve the request or forward it to the Director, USACRC for denial. A copy of the Provost Marshal/Director of Emergency Services' decision must be sent to the Director, USACRC to be filed in the USACRC record. If an amendment request is granted, copies of the supplemental DA Form 3975 will be provided to each organization, activity, or individual who received a copy of the original DA Form 3975.
(3)If the Provost Marshal Office/Directorate of Emergency Services no longer exists, the request will be staffed with the ACOM, ASCC or DRU Provost Marshal/Director of Emergency Services office that had oversight responsibility for the Provost Marshal Office/Directorate of Emergency Services at the time the DA Form 3975 was originated. § 635.14 Accounting for military police record disclosure.
(a)AR 340-21 prescribes accounting policies and procedures concerning the disclosure of military police records.
(b)Provost Marshals/Directors of Emergency Services will develop local procedures to ensure that disclosure data requirements by AR 340-21 are available on request. § 635.15 Release of law enforcement information furnished by foreign governments or international organizations.
(a)Information furnished by foreign governments or international organizations is subject to disclosure, unless exempted by AR 25-55, AR 340-21, federal statutes or executive orders.
(b)Information may be received from a foreign source under an express pledge of confidentiality as described in AR 25-55 and AR 340-21 (or under an implied pledge of confidentiality given prior to September 27, 1975).
(1)Foreign sources will be advised of the provisions of the Privacy Act of 1974, the FOIA, and the general and specific law enforcement exemptions available, as outlined in AR 340-21 and AR 25-55.
(2)Information received under an express promise of confidentiality will be annotated in the MPR or other applicable record.
(3)Information obtained under terms of confidentiality must clearly aid in furthering a criminal investigation.
(c)Denial recommendations concerning information obtained under a pledge of confidentiality, like other denial recommendations, will be forwarded by the records custodian to the appropriate IDA or AARA per AR 25-55 or AR 340-21.
(d)Release of U.S. information (classified military information or controlled unclassified information) to foreign governments is accomplished per AR 380-10. Subpart C—Offense Reporting § 635.16 General.
(a)This subpart establishes policy for reporting founded criminal offenses by Installation Management Command (IMCOM), Army Materiel Command
(AMC)and Medical Command (MEDCOM) installation and ACOM, ASCC and DRU Provost Marshal Offices/Directorates of Emergency Services.
(b)This subpart prescribes reporting procedures, which require the use of the COPS MPRS and a systems administrator to ensure that the system is properly functioning. Reporting requirements include—
(1)Reporting individual offenders to the USACRC, NCIC, CJIS, and the DOD.
(2)*Crime reports to the DOD.* DOD collects data from all the Services utilizing the Defense Incident-Based Reporting System (DIBRS). The Army inputs its data into DIBRS utilizing COPS. Any data reported to DIBRS is only as good as the data reported into COPS, so the need for accuracy in reporting incidents and utilizing proper offense codes is great. DIBRS data from DOD is eventually sent to the Department of Justice's National Incident-Based Reporting System (NIBRS). The data is eventually incorporated into the Uniform Crime Report.
(c)A Provost Marshal Office/Directorate of Emergency Services initiating a DA Form 3975 or other military police investigation has reporting responsibility explained throughout this subpart and this part in general.
(d)In the event the Provost Marshal Office/Directorate of Emergency Services determines that their office does not have investigative responsibility or authority, the MPR will be terminated and the case cleared by exceptional clearance. A case cleared by exceptional clearance is closed by the Provost Marshal/Director of Emergency Services when no additional investigative activity will be performed or the case is referred to another agency. If a case is transferred to the Provost Marshal/Director of Emergency Services from another law enforcement investigation agency the Provost Marshal Office/Directorate of Emergency Services will have all reporting responsibility using the COPS MPRS system. § 635.17 Military Police Report.
(a)*General use.* DA form 3975 is a multipurpose form used to—
(1)Record all information or complaints received or observed by military police.
(2)Serve as a record of all military police and military police investigator activity.
(3)Document entries made into the COPS MPRS system and other automated systems.
(4)Report information concerning investigations conducted by civilian law enforcement agencies related to matters of concern to the U.S. Army.
(5)Advise commanders and supervisors of offenses and incidents involving personnel or property associated with their command or functional responsibility.
(6)Report information developed by commanders investigating incidents or conducting inspections that result in the disclosure of evidence that a criminal offense has been committed.
(b)*Special use.* The DA Form 3975 will be used to—
(1)Transmit completed DA Form 3946 (Military Police Traffic Accident Report). This will include statements, sketches, or photographs that are sent to a commander or other authorized official.
(2)Transmit the DD Form 1805 (U.S District Court Violation Notice) when required by local installation or U.S. Magistrate Court policy. The DA Form 3975 is used to advise commanders or supervisors that military, civilian, or contract personnel have been cited on a DD Form 1805.
(3)Match individual subjects with individual victims or witnesses, and founded criminal offenses. This is a federal statutory requirement. This is done using the relationships tab within COPS MPRS.
(4)Document victim/witness liaison activity.
(c)*Distribution.* The DA Form 3975 will be prepared in three copies, signed by the Provost Marshal/Director of Emergency Services or a designated representative, and distributed as follows—
(1)Original to USACRC. Further information, arising or developed at a later time, will be forwarded to USACRC using a supplemental DA Form 3975. Reports submitted to USACRC will include a good, legible copy of all statements, photographs, sketches, laboratory reports, and other information that substantiates the offense or facilitates the understanding of the report. The USACRC control number must be recorded on every DA Form 3975 sent to the USACRC. A report will not be delayed for adjudication or commander's action beyond 45 days.
(2)One copy retained in the Provost Marshal/Director of Emergency Services' files.
(3)One copy forwarded through the field grade commander to the immediate commander of each subject or organization involved in an offense.
(d)*Changing reports for unfounded offenses.* If an offense is determined to be unfounded, after the case has been forwarded to USACRC, the following actions will be completed:
(1)A supplemental DA Form 3975, using the same MPR number and USACRC control number will be submitted stating the facts of the subsequent investigation and that the case is unfounded.
(2)A copy of the supplemental DA Form 3975 will be provided to those agencies or activities that received a copy of the completed DA Form 3975 at the time of submission to USACRC and to the commander for action. § 635.18 Identifying criminal incidents and subjects of investigation.
(a)An incident will not be reported as a founded offense unless adequately substantiated by police investigation. A person or entity will be reported as the subject of an offense on DA Form 3975 when credible information exists that the person or entity may have committed a criminal offense. The decision to title a person is an operational rather than a legal determination. The act of titling and indexing does not, in and of itself, connote any degree of guilt or innocence; but rather, ensures that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes. Judicial or adverse administrative actions will not be based solely on the listing of an individual or legal entity as a subject on DA Form 3975.
(b)A known subject will be reported to the USACRC when the suspected offense is punishable by confinement of six months or more. The COPS MPRS will be used to track all other known subjects. A subject can be a person, corporation, or other legal entity, or organization about which credible information exists that would cause a trained law enforcement officer to presume that the person, corporation, other legal entity or organization may have committed a criminal offense.
(c)When investigative activity identifies a subject, all facts of the case must be considered. When a person, corporation, or other legal entity is entered in the subject block of the DA Form 3975, their identity is recorded in DA automated systems and the DCII. Once entered into the DCII, the record can only be removed in cases of mistaken identity or if an error was made in applying the credible information standard at the time of listing the entity as a subject of the report. It is emphasized that the credible information error must occur at the time of listing the entity as the subject of the MPR rather than subsequent investigation determining that the MPR is unfounded. This policy is consistent with DOD reporting requirements. The Director, USACRC enters individuals from DA Form 3975 into the DCII. § 635.19 Offense codes.
(a)The offense code describes, as nearly as possible, the complaint or offense by using an alphanumeric code. Appendix C of AR 190-45 lists the offense codes that are authorized for use within the Army. This list will be amended from time to time based on new reporting requirements mandated by legislation or administrative procedures. ACOM, ASCC, DRU commanders and installation Provost Marshals/Directors of Emergency Services will be notified by special letters of instruction issued in numerical order from HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) when additions or deletions are made to list. The COPS MPRS module will be used for all reporting requirements.
(b)ACOM, ASCC, DRU and installations may establish local offense codes in category 2 (ACOM, ASCC, DRU and installation codes) for any offense not otherwise reportable. Locally established offense codes will not duplicate, or be used as a substitute for any offense for which a code is contained for other reportable incidents. Category 2 incidents are not reported to the Director, USACRC or the DOJ. If an offense occurs meeting the reporting description contained in Appendix C of AR 190-45, that offense code takes precedence over the local offense code. Local offense codes may be included, but explained, in the narrative of the report filed with the USACRC. Use the most descriptive offense code to report offenses.
(c)Whenever local policy requires the Provost Marshal/Director of Emergency Services to list the subject's previous offenses on DA Form 3975, entries will reflect a summary of disposition for each offense, if known. § 635.20 Military Police Codes (MPC).
(a)MPCs identify individual Provost Marshal Offices/Directorates of Emergency Services. The Director, USACRC will assign MPCs to Provost Marshal Offices/Directorates of Emergency Services.
(b)Requests for assignment of a MPC will be included in the planning phase of military operations, exercises, or missions when law enforcement operations are anticipated. The request for a MPC will be submitted as soon as circumstances permit, without jeopardizing the military operation to HQDA, Office of the Provost Marshal General (DAPM-MPD-LE). Consistent with security precautions, ACOM, ASCC and DRU will immediately inform HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) when assigned or attached military police units are notified for mobilization, relocation, activation, or inactivation.
(c)When a military police unit is alerted for deployment to a location not in an existing Provost Marshal/Director of Emergency Services' operational area, the receiving ACOM, ASCC, DRU or combatant commander will request assignment of an MPC number from HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) providing the area of operations does not have an existing MPC number. The receiving ACOM, ASCC, DRU or Unified Combatant Commander is further responsible for establishing an operational COPS system for the deployment. § 635.21 USACRC control numbers.
(a)Case numbers to support reporting requirements will be assigned directly to each installation via COPS. To ensure accuracy in reporting criminal incidents, USACRC control numbers will be used only one time and in sequence. Every MPR sent to the USACRC will have a USACRC control number reported. Violation of this policy could result in significant difficulties in tracing reports that require corrective action.
(b)If during the calendar year ACOM, ASCC or DRU reassigns control numbers from one installation to another, HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) will be notified. The Director USACRC will receive an information copy of such notification from ACOM, ASCC or DRU's law enforcement operations office.
(c)USACRC control numbers will be issued along with each newly assigned MPC.
(d)When the deploying unit will be located in an area where there is an existing Provost Marshal/Director of Emergency Services activity, the deploying unit will use the MPC number and USACRC control numbers of the host Provost Marshal/Director of Emergency Services. § 635.22 Reserve component, U.S. Army Reserve, and Army National Guard personnel.
(a)When in a military duty status pursuant to official orders (Federal status for National Guard) Reserve and National Guard personnel will be reported as active duty. Otherwise they will be reported as civilians.
(b)The DA Form 3975 and DA Form 4833 will be forwarded directly to the appropriate Regional Readiness Command or the Soldier's division commander. A copy of the DA Form 3975 will also be forwarded to Chief, Army Reserve/Commander, United States Army Reserve Command, AFRC-JAM, 1404 Deshler Street, Fort McPherson, GA 30330. The forwarding correspondence will reflect this regulation as the authority to request disposition of the individual. § 635.23 DA Form 4833 (Commander's Report of Disciplinary or Administrative Action).
(a)*Use.* DA Form 4833 is used with DA Form 3975 to—
(1)Record actions taken against identified offenders.
(2)Report the disposition of offenses investigated by civilian law enforcement agencies.
(b)*Preparation by the Provost Marshal/Director of Emergency Services.* The installation Provost Marshal/Director of Emergency Services initiates this critical document and is responsible for its distribution and establishing a suspense system to ensure timely response by commanders. Disposition reports are part of the reporting requirements within DA, DOD, and DOJ.
(c)*Completion by the unit commander.* Company, troop, and battery level commanders are responsible and accountable for completing DA Form 4833 with supporting documentation in all cases investigated by MPI, civilian detectives employed by the Department of the Army, and the PMO. The Battalion Commander or the first Lieutenant Colonel in the chain of command is responsible and accountable for completing DA Form 4833 with support documentation (copies of Article 15s, court-martial orders, reprimands, etc.) for all USACIDC investigations. The commander will complete the DA Form 4833 within 45 days of receipt.
(1)Appropriate blocks will be checked and blanks annotated to indicate the following:
(i)Action taken (for example, judicial, nonjudicial, or administrative). In the event the commander takes action against the soldier for an offense other than the one listed on the DA Form 3975, the revised charge or offense will be specified in the REMARKS section of the DA Form 4833.
(ii)Sentence, punishment, or administrative action imposed.
(iii)Should the commander take no action, the DA Form 4833 must be annotated to reflect that fact.
(2)If the commander cannot complete the DA Form 4833 within 45 days, a written memorandum is required to explain the circumstances. The delay will have an impact on other reporting requirements ( *e.g.* , submitting fingerprint cards to the FBI).
(d)*Procedures when subjects are reassigned.* When the subject of an offense is reassigned, the Provost Marshal/Director of Emergency Services will forward the DA Form 3975, DA Form 4833, and all pertinent attachments to the gaining installation Provost Marshal/Director of Emergency Services who must ensure that the new commander completes the document. Copies of the documents may be made and retained by the processing Provost Marshal Office/Directorate of Emergency Services before returning the documents to the losing installation Provost Marshal/Director of Emergency Services for completion of automated entries and required reports.
(e)*Report on subjects assigned to other installations.* When the DA Form 3975 involves a subject who is assigned to another installation, the initiating Provost Marshal/Director of Emergency Services will forward the original and two copies of DA Form 4833 to the Provost Marshal/Director of Emergency Services of the installation where the soldier is permanently assigned. The procedures in paragraph
(d)of this section will be followed for soldiers assigned to other commands.
(f)*Offenses not reportable to USACRC.* When the offense is not within a category reportable to USACRC, the original DA Form 4833 is retained by the Provost Marshal/Director of Emergency Services. Otherwise, the original is sent to the Director, USACRC for filing with the MPR.
(g)*Civilian court proceedings.* If a soldier is tried in a civilian court, and the Provost Marshal/Director of Emergency Services has initiated a MPR, the Provost Marshal/Director of Emergency Services must track the civilian trial and report the disposition on DA Form 4833 as appropriate. That portion of the signature block of DA Form 4833 that contains the word “Commanding” will be deleted and the word “Reporting” substituted. The Provost Marshal/Director of Emergency Services or other designated person will sign DA Form 4833 before forwarding it to USACRC.
(h)*Dissemination to other agencies.* A copy of the completed DA Form 4833 reflecting offender disposition will also be provided to those agencies or offices that originally received a copy of DA Form 3975 when evidence is involved. The evidence custodian will also be informed of the disposition of the case. Action may then be initiated for final disposition of evidence retained for the case now completed.
(i)*Review of offender disposition by the Provost Marshal/Director of Emergency Services.* On receipt of DA Form 4833 reflecting no action taken, the Provost Marshal/Director of Emergency Services will review the MPR. The review will include, but is not limited to the following—
(1)Determination of the adequacy of supporting documentation.
(2)Whether or not coordination with the supporting Staff Judge Advocate should have been sought prior to dispatch of the report to the commander for action.
(3)Identification of functions that warrant additional training of military police or security personnel (for example, search and seizure, evidence handling, or rights warning).
(j)*Offender disposition summary reports.* Provost Marshals/Directors of Emergency Services will provide the supported commander (normally, the general courts-martial convening authority or other persons designated by such authority) summary data of offender disposition as required or appropriate. Offender disposition summary data will reflect identified offenders on whom final disposition has been reported. These data will be provided in the format and at the frequency specified by the supported commander. § 635.24 Updating the COPS MPRS. Installation Provost Marshals/Directors of Emergency Services will establish standard operating procedures to ensure that every founded offense is reported into the COPS MPRS. Timely and accurate reporting is critical. If a case remains open, changes will be made as appropriate. This includes reporting additional witnesses and all aspects of the criminal report. § 635.25 Submission of criminal history data to the CJIS.
(a)*General.* This paragraph establishes procedures for submitting criminal history data (fingerprint cards) to CJIS when the Provost Marshal/Director of Emergency Services has completed a criminal inquiry or investigation. The policy only applies to members of the Armed Forces and will be followed when a military member has been read charges and the commander initiates proceedings for—
(1)*Field Grade Article 15, Uniform Code of Military Justice.* Initiation refers to a commander completing action to impose non-judicial punishment. Final disposition shall be action on appeal by the next superior authority, expiration of the time limit to file an appeal, or the date the military member indicates that an appeal will not be submitted.
(2)*A special or general courts-martial.* Initiation refers to the referral of court-martial charges to a specified court by the convening authority or receipt by the commander of an accused soldier's request for discharge in lieu of court-martial. Final disposition of military judicial proceedings shall be action by the convening authority on the findings and sentence, or final approval of a discharge in lieu of court-martial. The procedures in this subpart meet administrative and technical requirements for submitting fingerprint cards and criminal history information to CJIS. No variances are authorized. Results of summary court-martial will not be reported to the FBI.
(3)*DA Form 4833.* In instances where final action is taken by a magistrate, the Provost Marshal/Director of Emergency Services will complete the DA Form 4833.
(4)*Fingerprint cards.* Provost Marshal Offices/Directorates of Emergency Services will submit fingerprint cards on subjects apprehended as a result of Drug Suppression Team investigations and operations unless the USACIDC is completing the investigative activity for a felony offense. In those cases, the USACIDC will complete the fingerprint report process.
(b)*Procedures.* The following procedures must be followed when submitting criminal history data to CJIS.
(1)Standard FBI fingerprint cards will be used to submit criminal history data to CJIS. FBI Form FD 249, (Suspect Fingerprint Card) will be used when a military member is a suspect or placed under apprehension for an offense listed in Appendix D of AR 190-45. Two FD 249s will be completed. One will be retained in the Provost Marshal/Director of Emergency Services file. The second will be sent to the Director, USACRC and processed with the MPR as prescribed in this subpart. A third set of prints will also be taken on the FBI Department of Justice
(DOJ)Form R-84 (Final Disposition Report). The R-84 requires completion of the disposition portion and entering of the offenses on which the commander took action. Installation Provost Marshals/Directors of Emergency Services are authorized to requisition the fingerprint cards by writing to FBI, J. Edgar Hoover Building, Personnel Division, Printing Unit, Room lB973, 925 Pennsylvania Ave., NW., Washington, DC 20535-0001.
(2)Fingerprint cards will be submitted with the MPR to the Director, USACRC, ATTN: CICR-CR, 6010 6th Street, Fort Belvoir, VA 22060-5585 only when the commander has initiated judicial or nonjudicial action amounting to a Field Grade Article 15 or greater. The Director, CRC will forward the fingerprint card to CJIS. The USACRC is used as the central repository for criminal history information in the Army. They also respond to inquiries from CJIS, local, state and other federal law enforcement agencies.
(3)Submission of the MPR with the FD 249 to USACRC will normally occur upon a commander's initiation of judicial or nonjudicial proceedings against a military member. If final disposition of the proceeding is anticipated within 60 days of command initiation of judicial or nonjudicial proceedings, the FD 249 may be held and final disposition recorded on FD 249. Provost Marshals/Directors of Emergency Services and commanders must make every effort to comply with the 60 days reporting requirement to ensure that the FD Form 249 is used as the primary document to submit criminal history to CJIS. Approval of a discharge in lieu of court-martial will be recorded as a final disposition showing the nature and character of the discharge in unabbreviated English (e.g., resignation in lieu of court-martial; other than honorable discharge) and will also be forwarded to USACRC.
(4)If the commander provides the DA Form 4833 after the 60th day, a letter of transmittal will be prepared by the Provost Marshal/Director of Emergency Services forwarding the FBI
(DOJ)R-84 with the DA Form 4833 to the USACRC within 5 days after disposition. Submission of fingerprint cards shall not be delayed pending appellate actions. Dispositions that are exculpatory (e.g., dismissal of charges, acquittal) shall also be filed.
(5)The procedures for submitting fingerprint cards will remain in effect until automated systems are in place for submission of fingerprints electronically. § 635.26 Procedures for reporting absence without leave
(AWOL)and desertion offenses.
(a)*AWOL reporting procedures.*
(1)The commander will notify the installation Provost Marshal/Director of Emergency Services in writing within 24 hours after a soldier has been reported AWOL.
(2)The Provost Marshal/Director of Emergency Services will initiate an information blotter entry.
(3)If the AWOL soldier surrenders to the parent unit or returns to military control at another installation, the provisions of AR 630-10 will be followed.
(4)On receipt of written notification of the AWOL soldier's return or upon apprehension, the Provost Marshal/Director of Emergency Services will initiate a reference blotter entry indicating the soldier's return to military control and will prepare an initial DA Form 3975, reflecting the total period of unauthorized absence, and the DA Form 4833. Both of these documents will be forwarded through the field grade commander to the unit commander.
(5)The unit commander will report action taken on the DA Form 4833 no later than the assigned suspense date or provide a written memorandum to the Provost Marshal/Director of Emergency Services explaining the delay.
(6)An original DD Form 460 (Provisional Pass) is issued to the soldier to facilitate their return to the parent unit. DD Form 460 will not be required if the Provost Marshal/Director of Emergency Services elects to return the soldier through a different means.
(7)If the soldier is apprehended at or returns to an installation other than his or her parent installation DA Form 3975 and 4833 with a copy of DD Form 460 will be sent to the parent installation Provost Marshal/Director of Emergency Services. The parent installation Provost Marshal/Director of Emergency Services will initiate an information blotter entry reflecting the AWOL soldiers return to military control. A DA Form 3975 and 4833 with an appropriate suspense will be sent through the field grade commander to the unit commander. On return of the completed DA Form 4833 from the unit commander, the original and one copy will be sent to the apprehending Provost Marshal/Director of Emergency Services. The parent installation Provost Marshal/Director of Emergency Services may retain a copy of DA Form 3975 and DA Form 4833.
(b)*Desertion reporting procedures.*
(1)The unit commander must comply with the provisions of AR 630-10 when reporting a soldier as a deserter.
(2)On receipt of the DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), the Provost Marshal/Director of Emergency Services will—
(i)Initiate a DA Form 3975 and a blotter entry reflecting the soldier's desertion status.
(ii)Complete portions of DD Form 553 concerning the soldier's driver's license and vehicle identification. In the remarks section, add other information known about the soldier such as confirmed or suspected drug abuse; history of violent acts; history of escapes; attempted escapes from custody; suicidal tendencies; suspicion of involvement in crimes of violence (for which a charge sheet has been prepared and forwarded); history of unauthorized absences; and any other information useful in the apprehension process or essential to protect the deserter or apprehending authorities.
(iii)An MPR number and a USACRC control number will be assigned to the case and be included in the remarks section of the DD Form 553.
(iv)The DD Form 553 must be returned to the unit commander within 24 hours.
(v)If the deserter surrenders to or is apprehended by the parent installation Provost Marshal/Director of Emergency Services, the Provost Marshal/Director of Emergency Services will telephonically verify the deserter's status with the U.S. Army Deserter Information Point (USADIP). A reference blotter entry will be completed changing the soldier's status from desertion to return to military control.
(vi)If the deserter surrenders to or is apprehended by an installation not the parent installation, the Provost Marshal/Director of Emergency Services will telephonically verify the deserter's status with USADIP. An information military police report will be prepared, utilizing the CRC number from the original military police report prepared by the parent installation. A blotter entry will also be prepared.
(vii)A DD Form 616 (Report of Return of Absentee) will be completed when deserters are apprehended or surrender to military authority. The USACRC control number assigned to the DD Form 553 will be included in the remarks section of the DD Form 616.
(viii)Upon return of the deserter to military control, DA Forms 3975, 2804 (Crime Records Data), fingerprint card and 4833 will be initiated. The MPR number and USACRC control number will be recorded on all four forms.
(ix)The original DA Form 3975 and other pertinent documents will be sent to the Director, USACRC. The DA Form 4833 must include the commander's action taken, to include the Commander, Personnel Control Facility, or other commander who takes action based on the desertion charge. § 635.27 Vehicle Registration System. The Vehicle Registration System
(VRS)is a module within COPS. Use of VRS to register vehicles authorized access to Army installations is mandated in AR 190-5. Within VRS there are various tabs for registration of vehicles authorized access to an installation, to include personal data on the owner of the vehicle. There are also tabs for registering weapons, bicycles, and pets. Information on individuals barred entry to an installation is also maintained within VRS. § 635.28 Procedures for restricted/unrestricted reporting in sexual assault cases. Active duty Soldiers, and Army National Guard and U.S. Army Reserve Soldiers who are subject to military jurisdiction under the UCMJ, can elect either restricted or unrestricted reporting if they are the victim of a sexual assault.
(a)Unrestricted Reporting. Unrestricted reporting requires normal law enforcement reporting and investigative procedures.
(b)Restricted reporting requires that law enforcement and criminal investigative organizations not be informed of a victim's identity and not initiate investigative procedures. The victim may allow Sexual Assault Response Coordinators (SARC), health care providers (HCP), or chaplains to collect specific items (clothing, bedding, etc.) that may be later used as evidence, should the victim later decide to report the incident to law enforcement. In sexual assault cases additional forensic evidence may be collected using the “Sexual Assault Evidence Collection Kit,” NSN 6640-01-423-9132, or a suitable substitute (hereafter, “evidence kit”). The evidence kit, other items such as clothing or bedding sheets, and any other articles provided by the HCP, SARC, or chaplain will be stored in the installation Provost Marshal/Directorate of Emergency Services' evidence room separate from other evidence and property. Procedures for handling evidence specified in AR 195-5, Evidence Procedures, will be strictly followed.
(c)Installation Provost Marshals/Directors of Emergency Services will complete an information report in COPS for restricted reporting. Reports will be completed utilizing the offense code from the 6Z series. An entry will be made in the journal when the evidence kit or property (clothing, bedding, etc.) is received. The journal entry will be listed using non-identifying information, such as an anonymous identifier. An entry will not be made in the blotter. Restricted reporting incidents are not reportable as Serious Incident Reports. Property and the evidence kit will be stored for one year and then scheduled/suspensed for destruction, unless earlier released to investigative authorities in accordance with the victim's decision to pursue unrestricted reporting. Thirty days prior to destruction of the property, a letter will be sent to the SARC by the Provost Marshal/Director of Emergency Services, advising the SARC that the property will be destroyed in thirty days, unless law enforcement personnel are notified by the SARC that the victim has elected unrestricted reporting. Clothing, the evidence kit, or other personal effects may be released to the SARC for return to the victim. The information report will be updated when the evidence is destroyed, or released to investigative authorities.
(d)In the event that information about a sexual assault that was made under restricted reporting is disclosed to the commander from a source independent of the restricted reporting avenues or to law enforcement from other sources, but from a source other than the SARC, HCP, chaplain, or Provost Marshal/Director of Emergency Services, the commander may report the matter to law enforcement and law enforcement remains authorized to initiate its own independent investigation of the matter presented. Additionally, a victim's disclosure of his/her sexual assault to persons outside the protective sphere of the persons covered by the restricted reporting policy may result in an investigation of the allegations. § 635.29 Domestic violence and protection orders.
(a)Responding to incidents of spouse abuse requires a coordinated effort by law enforcement, medical, and social work personnel, to include sharing information and records as permitted by law and regulation. AR 608-18 contains additional information about domestic violence and protective orders.
(b)Appendix C of AR 190-45 includes specific offense codes for domestic violence. All domestic violence incidents will be reported to the local PMO. All reported domestic violence incidents will be entered into MPRS, utilizing DA Form 3975. These codes will be utilized in addition to any other offense code that may be appropriate for an incident. For example, a soldier strikes his or her spouse. When entering the offense data into MPRS, both the offense code for assault (i.e. 5C2B) and the offense code for spouse abuse (from the 5D6 series) will be entered.
(c)A military Protection Order is a written lawful order issued by a commander that orders a soldier to avoid contact with his or her spouse or children. Violations of a military Protection Order must be reported on DA Form 3975, entered into COPS, and entered into NCIC. Violations of a military Protection Order may be violations of Article 92, UCMJ. The commander should provide a written copy of the order within 24 hours of its issuance to the person with whom the member is ordered not to have contact. A copy should be forwarded to the installation Family Advocacy Program Manager (FAPM), the Chief, Social Work Service, and the installation military police.
(d)A civilian Protection Order is an order issued by a judge, magistrate or other authorized civilian official, ordering an individual to avoid contact with his or her spouse or children. Pursuant to the Armed Forces Domestic Security Act a civilian protection order has the same force and effect on a military installation as such order has within the jurisdiction of the court that issued the order. Violations of a civilian Protection Order must be reported on DA Form 3975, entered into COPS, and entered into NCIC. § 635.30 Establishing Domestic Violence Memoranda of Understanding.
(a)Coordination between military law enforcement personnel and local civilian law enforcement personnel is essential to improve information sharing, especially concerning domestic violence investigations, arrests, and prosecutions involving military personnel. Provost Marshals/Directors of Emergency Services or other law enforcement officials shall seek to establish formal Memoranda of Understanding
(MOU)with their civilian counterparts to establish or improve the flow of information between their agencies, especially in instances of domestic violence involving military personnel. MOUs can be used to clarify jurisdictional issues for the investigation of incidents, to define the mechanism whereby local law enforcement reports involving active duty service members will be forwarded to the appropriate installation law enforcement office, to encourage the local law enforcement agency to refer victims of domestic violence to the installation Family Advocacy office or victim advocate, and to foster cooperation and collaboration between the installation law enforcement agency and local civilian agencies.
(b)MOUs should address the following issues:
(1)A general statement of the purpose of the MOU.
(2)An explanation of jurisdictional issues that affect respective responsibilities to and investigating incidents occurring on and off the installation. This section should also address jurisdictional issues when a civilian order of protection is violated on military property (see 10 U.S.C. 1561a).
(3)Procedures for responding to domestic violence incidents that occur on the installation involving a civilian alleged offender.
(4)Procedures for transmitting incident/investigation reports and other law enforcement information on domestic violence involving active duty service members from local civilian law enforcement agencies to the installation law enforcement office.
(5)Procedures for transmitting civilian protection orders
(CPOs)issued by civilian courts or magistrates involving active duty service members from local law enforcement agencies to the installation law enforcement office.
(6)Designation of the title of the installation law enforcement recipient of such information from the local law enforcement agency.
(7)Procedures for transmitting military protection orders
(MPOs)from the installation law enforcement office to the local civilian law enforcement agency with jurisdiction over the area in which the service member resides.
(8)Designation of the title of the local law enforcement agency recipient of domestic violence and CPO information from the installation law enforcement agency.
(9)Respective responsibilities for providing information to domestic violence victims regarding installation resources when either the victim or the alleged offender is an active duty service member.
(10)Sharing of information and facilities during the course of an investigation in accordance with the Privacy Act of 1974 (see 5 U.S.C. 552a(b)(7)).
(11)Regular meetings between the local civilian law enforcement agency and the installation law enforcement office to review cases and MOU procedures. § 635.31 Lost, abandoned, or unclaimed property. This is personal property that comes into the possession, custody, or control of the Army and is unclaimed by the owner. Property is considered to be abandoned only after diligent effort has been made to determine and locate its owner, the heir, next of kin, or legal representative. A military person who is ordered overseas and is unable to dispose of their personal property should immediately notify their chain-of-command. The commander will appoint a board to rule on the disposition of the property. If a law enforcement agency takes custody of the property it will be tagged and a record made as shown in paragraph
(a)of this section. A report will be made to the installation commander who will take action in accordance with DOD 4160.21-M, chapter 4, paragraph 40, Defense Materiel Disposition Manual. Pending board action under DOD 4160.21-M, the law enforcement agency having physical custody is responsible for the safekeeping of seized property. The following procedures should be used:
(a)Property will be tagged using DA Form 4002 (Evidence/Property Tag) or clearly identified by other means, inventoried, and made a matter of record. These records are kept by the custodian of the property.
(b)Lost, abandoned, or unclaimed property will be kept in a room or container separate from one used to store property held as evidence. Records or logs of property not held as evidence will be separated from those pertaining to evidence. However, all property will be tagged, accounted for, and receipted for in a similar manner as evidence.
(c)Property that has been properly identified through board action under DOD 4160.21-M as having an owner will be segregated and tagged with the name of that person.
(d)Abandoned or unclaimed property will be held until its status can be determined. In many instances, lost property can be returned to the owner upon presentation of proof of ownership.
(e)In all cases, a receipt should be obtained at time of release. Subpart D—Army Quarterly Trends and Analysis Report § 635.32 General.
(a)This subpart prescribes policies and procedures for the coordination and standardization of crime statistics reporting with HQDA. Crime statistical reports and trends provided to HQDA and other agencies and those related to special interests inquiries, the media, and the public must reflect uniformity in terminology, methods of presentation, and statistical portrayal to preclude misinterpretation of information.
(b)Any report containing Army-wide aggregate crime data or statistics addressed to the Secretary of the Army, Chief of Staff of the Army, or Vice Chief of Staff of the Army will be coordinated and cleared with HQDA, Office of the Provost Marshal General (DAPM-MPD-LE). Correspondence and reports will be coordinated with HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) prior to release to any agency, activity, or individual.
(c)HQDA staff agencies ACOM, ASCC and DRU authorized by regulation or statute to conduct independent investigations, audits, analyses, or inquiries need not coordinate reported information with HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) unless the information contains crime data for the Army as a whole. For example, reports submitted by USACIDC containing only USACIDC investigative data need not be coordinated with HQDA, Office of the Provost Marshal General (DAPM-MPD-LE). § 635.33 Crime rate reporting.
(a)The USACRC is the Army's collection point and analytic center for all Army aggregate crime data. Requests for Army-wide crime data reports will be forwarded through HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) to the Director, USACRC. Replies will be routed back through HQDA Office of the Provost Marshal General (DAPM-MPD-LE) where they will be coordinated, as appropriate, prior to release. Requests for USACIDC, ACOM, ASCC, DRU, or subordinate command specific crime data reports can be made directly to the specific command. Replies need not be coordinated with HQDA.
(b)Requests for Army aggregate crime reports are limited to data collected and accessible through the Automated Criminal Investigation and Intelligence System
(ACI2)and COPS.
(c)Routine collection of ACOM, ASCC or DRU crime data, for use in Army-wide database, will be limited to that data collected by the above systems. ACOM, ASCC and DRU may determine internal data collection requirements.
(d)All Provost Marshal/Director of Emergency Services crime data will be recorded and forwarded by installations through ACOM, ASCC or DRU using the COPS system.
(e)In support of the Secretary Of the Army and the Office of the Chief of Staff of the Army, the Chief, Operations Division, Office of the Provost Marshal General, will determine the requirements for routine publication of Army aggregate crime statistics.
(f)Normally, raw data will not be released without analysis on routine or non-routine requests. Comparison of ACOM, ASCC or DRU crime data is generally not reported and should be avoided. General categories of CONUS or OCONUS are appropriate. Subpart E—Victim and Witness Assistance Procedures § 635.34 General.
(a)This subpart implements procedures to provide assistance to victims and witnesses of crimes that take place on Army installations and activities. The procedures in this subpart apply to—
(1)Every victim and witness.
(2)Violations of the UCMJ, including crimes assimilated under the Assimilative Crimes Act reported to or investigated by military police.
(3)Foreign nationals employed or visiting on an Army installation OCONUS.
(b)Provost Marshal/Director of Emergency Services personnel should refer to AR 27-10, Chapter 18, for additional policy guidance on the Army Victim/Witness Program. § 635.35 Procedures.
(a)As required by Federal law, Army personnel involved in the detection, investigation, and prosecution of crimes must ensure that victims and witnesses rights are protected. Victims rights include—
(1)The right to be treated with fairness, dignity, and a respect for privacy.
(2)The right to be reasonably protected from the accused offender.
(3)The right to be notified of court proceedings.
(4)The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at trial, or for other good cause.
(5)The right to confer with the attorney for the Government in the case.
(6)The right to restitution, if appropriate.
(7)The right to information regarding conviction, sentencing, imprisonment, and release of the offender from custody.
(b)In keeping with the requirements listed in paragraph
(a)of this section, Provost Marshals/Directors of Emergency Services must ensure that—
(1)All law enforcement personnel are provided copies of DD Form 2701 (Initial Information for Victims and Witnesses of Crime).
(2)A victim witness coordinator is appointed in writing.
(3)Statistics are collected and reported into COPS.
(4)Coordination with the installation staff judge advocate victim witness coordinator occurs to ensure that individuals are properly referred for information on restitution, administrative, and judicial proceedings.
(5)Coordination with installation Family Advocacy Program's Victim Advocate occurs to support victims of spouse abuse. Victim Advocacy services include crisis intervention, assistance in securing medical treatment for injuries, information on legal rights and proceedings, and referral to military and civilian shelters and other resources available to victims. § 635.36 Notification.
(a)In addition to providing crime victims and witnesses a DD Form 2701, law enforcement personnel must ensure that individuals are notified about—
(1)Available military and civilian emergency medical care.
(2)Social services, when necessary.
(3)Procedures to contact the staff judge advocate victim/witness liaison office for additional assistance.
(b)Investigating law enforcement personnel, such as military police investigators—
(1)Must ensure that victims and witnesses have been offered a DD Form 2701. If not, investigating personnel will give the individual a copy.
(2)In coordination with the Provost Marshal/Director of Emergency Services victim witness coordinator, provide status on investigation of the crime to the extent that releasing such information does not jeopardize the investigation.
(3)Will, if requested, inform all victims and witnesses of the apprehension of a suspected offender. § 635.37 Statistical reporting requirements.
(a)DOD policies on victim witness assistance require reporting of statistics on the number of individuals who are notified of their rights. The DA Form 3975 provides for the collection of statistical information.
(b)The COPS system supports automated reporting of statistics. HQDA, Office of the Provost Marshal General (DAPM-MPD-LE) as the program manager may require periodic reports to meet unique requests for information.
(c)It is possible that a victim or witness may initially decline a DD Form 2701. As the case progresses, the individual may request information. If a case is still open in the Provost Marshal Office/Directorate of Emergency Services, the Provost Marshal/Director of Emergency Services victim witness coordinator shall provide the DA Form 2701 to the individual and update the records. Once the case is referred to the staff judge advocate or law enforcement activity ceases, COPS will not be updated without prior coordination with the installation Staff Judge Advocate office. [FR Doc. E7-4513 Filed 3-14-07; 8:45 am] BILLING CODE 3710-08-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 35 [EPA-HQ-OW-2006-0765; FRL7-8288-1] Reopening of Public Comment Period for the NPDES Permit Fee Incentive for Clean Water Act Section 106 Grants; Allotment Formula AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed Rulemaking; Reopening of the public comment period. SUMMARY: On Thursday, January 4, 2007, the Environmental Protection Agency published a proposed rule entitled “NPDES Permit Fee Incentive for Clean Water Act Section 106 Grants; Allotment Formula.” Written comments on the proposed rulemaking were required to be submitted to EPA on or before March 5, 2007, (a 60-day public comment period). EPA has received several requests for additional time to submit comments on the proposed rule. Therefore, the public comment period is being reopened for an additional 60-day comment period. DATES: Comments must be received on or before May 14, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-2006-0765 by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail:* *ow-docket@epa.gov* Attention Docket ID No. OW-2006-0765. • *Mail* : Water Docket, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., N.W., Washington, DC 20460. • *Hand Delivery:* EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, DC, Attention Docket ID No. OW-2006-0765. Such deliveries are only accepted during the Docket's normal hours of operation and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OW-2006-0765. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Water Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Water Docket is
(202)566-2426. FOR FURTHER INFORMATION CONTACT: Lena Ferris, Office of Water, Office of Wastewater Management, 4201M, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number:
(202)564-8831; fax number:
(202)501-2399; e-mail address: *ferris.lena@epa.gov* . Dated: March 9, 2007. James A. Hanlon, Director, Office of Wastewater Management. [FR Doc. E7-4777 Filed 3-14-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Parts 531 and 533 [Docket No. NHTSA-2007-27350] Corporate Average Fuel Economy—Request for Product Plan Information for Model Year 2007-2017 Passenger Cars and 2010-2017 Light Trucks AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Request for comments; correction. SUMMARY: This document corrects the dates and addresses captions in a request for comments published in the **Federal Register** of February 27, 2007 (72 FR 8664), regarding the acquisition of new and updated manufacturers' future product plans to aid in implementing the President's plan for reforming and increasing corporate average fuel economy
(CAFE)standards for passenger cars and further increasing the already reformed light truck standards. The DATES caption did not include the correct date for submission of light truck product plans, and the addresses caption did not include a complete docket number. FOR FURTHER INFORMATION CONTACT: Ken Katz,
(202)366-4936. Correction In the **Federal Register** of February 27, 2007, in FR Doc. 07-878, make the following corrections. On page 8664, in the third column, correct the DATES caption to read: DATES: Passenger car comments must be received on or before May 29, 2007. Light truck comments must be received on or before June 27, 2007. On page 8664, in the third column, correct the first three lines of the ADDRESSES caption to read: ADDRESSES: You may submit comments [identified by DOT DMS Docket Number 2007-27350] by any of the following methods: Issued: March 9, 2007. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E7-4765 Filed 3-14-07; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 070307055-7055-01; I.D. 022607F] RIN 0648-AV25 Atlantic Highly Migratory Species (HMS); U.S. Atlantic Billfish Tournament Management Measures AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes to temporarily suspend circle hook requirements for anglers participating in Atlantic billfish tournaments. The final rule implementing the Final Consolidated HMS Fishery Management Plan (FCHMS FMP) published in the **Federal Register** on October 2, 2006, and restricted anglers fishing from HMS permitted vessels and participating in Atlantic billfish tournaments to deploying only non-offset circle hooks when using natural baits or natural bait/artificial lure combinations, effective 12:01 am, January 1, 2007. The purpose of the final rule was to reduce post-release mortality of Atlantic billfish and other species with which billfish tournament anglers may interact. NMFS has continued to receive public comment since publication of the Final CHMS FMP regarding the perceived impacts of the billfish tournament non-offset circle hook requirement. The objective of this proposed rulemaking is to increase post-release survival of Atlantic billfishes by improving long-term compliance with billfish tournament non-offset circle hook regulations. DATES: Written comments on the proposed rule must be received by March 30, 2007. ADDRESSES: Written comments on the proposed rule or the Draft Environmental Assessment (Draft EA) may be submitted to Russell Dunn or Randy Blankinship, Fisheries Management Specialists, Highly Migratory Species Management Division, using any of the following methods: • *E-mail:* *0648-AV25@noaa.gov* Please include the following in the subject line: “Comments on Proposed Billfish Circle Hook Rule.” • *Mail:* NOAA/NMFS HMS Management Division, 263 13th Avenue South, St. Petersburg, FL 33701. Please mark the outside of the envelope “Comments on Proposed Billfish Circle Hook Rule”. • *Fax:* 727-824-5398. • *Federal e-Rulemaking Portal:* *http://www.regulations.gov* . Include in the subject line the following identifier: “I.D. 022607F.” The hearing locations are: 1. March 27, 2007 from 7 - 9 p.m. Worcester County Library, Snow Hill Branch, 307 North Washington Street, Snow Hill, Maryland, 21863. 2. March 28, 2007 from 7 - 9 p.m. Broward County Library, Main Library, 100 South Andrews Avenue, Ft. Lauderdale, FL 33301. 3. March 29, 2007 from 7 - 9 p.m. Carteret Community College, Joslyn Hall, H.J. McGee, Jr. Building, 3505 Arendell Street, Morehead City, NC 28557-2989. Copies of the Draft EA, the 2006 FCHMS FMP and other relevant documents are available from the Highly Migratory Species Management Division website at *http://www.nmfs.noaa.gov/sfa/hms* or by contacting Russell Dunn or Randy Blankinship (see FOR FURTHER INFORMATION CONTACT ). FOR FURTHER INFORMATION CONTACT: Russell Dunn or Randy Blankinship, by phone: 727-824-5399; by fax: 727-824-5398. SUPPLEMENTARY INFORMATION: Background The U.S. recreational fishery for Atlantic billfish is managed under the Consolidated HMS FMP. Implementing regulations at 50 CFR part 635 are issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)(16 U.S.C. 1801 *et seq.* ), and the Atlantic Tunas Convention Act
(ATCA)(16 U.S.C. 971 *et seq.* ). Atlantic billfish management strategies have been guided by international and domestic considerations and mechanisms since the 1970s. Domestic management of Atlantic billfish resources has been developed, modified, and implemented in four primary stages and through a series of other rulemakings. In January 1978, NMFS published the Preliminary Fishery Management Plan
(PMP)for Atlantic Billfish and Sharks (43 FR 3818), which was supported by an EIS (42 FR 57716). This PMP was developed and implemented under the authority of the Secretary of Commerce. Building upon the PMP for Atlantic Billfish and Sharks was the Fishery Management Plan for the Atlantic Billfishes (53 FR 21501). This plan was jointly developed by five Atlantic regional fishery management councils (Caribbean, Gulf, South Atlantic, Mid-Atlantic, New England) and implemented in October 1988 (53 FR 37765). The 1988 FMP defined the Atlantic billfish management unit to include sailfish from the western Atlantic Ocean, white marlin and blue marlin from the North Atlantic Ocean, and longbill spearfish from the entire Atlantic Ocean; described objectives for the Atlantic billfish fishery; and established management measures to achieve the objectives. Atlantic blue and white marlin were identified as overfished in 1997 and Atlantic sailfish were identified as overfished in 1998. In response to Magnuson-Stevens Act requirements, and concurrent with efforts to develop the 1999 FMP for Atlantic Tunas, Swordfish, and Sharks, NMFS prepared Amendment One to the Atlantic Billfish Fishery Management Plan and published final regulations on May 28, 1999 (64 FR 29090). Amendment One maintained the objectives of the original 1988 Billfish FMP and identified a number of additional objectives. On Oct. 2, 2006 (71 FR 58057), NMFS issued the final rule implementing the Final Consolidated HMS FMP. That document amended and consolidated the objectives and management measures of the Atlantic Billfish Fishery FMP with those of the 1999 Atlantic Tunas, Swordfish, and Sharks FMP, among other actions. The recent biomass level of Atlantic blue marlin most likely remains well below the level necessary to produce the maximum sustainable yield (B msy ) that was estimated in 2000. Current and provisional estimates suggest that the fishing mortality rate
(F)has recently declined and is possibly smaller than F replacement , but larger than the F msy estimated in the 2000 assessment. Over the period 2001 - 2005, several abundance indicators suggest that the decline in biomass has been at least partially arrested, but some other indicators suggest that abundance has continued to decline. The 1996, 2000, and 2002 stock assessments for white marlin all indicated that biomass of white marlin has been below B msy for more than two decades and the stock is overfished. The recent biomass of Atlantic white marlin most likely remains well below the B msy estimated in the 2002 assessment. Current and provisional estimates suggest that F is probably smaller than F replacement and probably also larger than the F msy estimated in the 2002 assessment. Over the period 2001-2004, combined longline indices and some individual fleet indices suggest that the decline has been at least partially reversed, but some other individual fleet indices suggest that abundance has continued to decline. In 2002, the United States undertook a status review of white marlin pursuant to the Endangered Species Act (ESA). The status review team determined that white marlin stock status did not warrant a listing at that time. NMFS was subsequently sued with regard to its determination not to list Atlantic white marlin as endangered at that time. In accordance with a court approved settlement agreement, NMFS has initiated a second ESA listing review for Atlantic white marlin that will be completed by December 31, 2007. Prior to January 1, 2007, the recreational Atlantic billfish fishery was subject to regulations that required fishing permits, limited allowable gears to rod and reel only, established minimum legal size limits, specified landing form of retained billfish, mandated reporting of billfish landings, required registration of all recreational HMS fishing tournaments and reporting by tournaments that are selected for reporting, prohibited the retention of longbill spearfish, and prohibited sale of any billfish, among others. The final rule implementing the FCHMS FMP (October 2, 2006; 71 FR 58058) implemented additional regulations that applied to the Atlantic recreational billfish fishery. These regulations became effective January 1, 2007, and limited U.S. landings of Atlantic blue and white marlin to 250 individual fish, combined, on an annual basis. The final rule also implemented regulations that require anglers fishing from HMS permitted vessels and participating in Atlantic billfish tournaments to use only non-offset circle hooks when deploying natural baits or natural bait/artificial lure combinations. These regulations allow the use of traditional J-hooks with artificial lures in tournaments, and do not impose hook requirements on recreational fishermen fishing outside of Atlantic billfish tournaments. NMFS implemented circle hook regulations in the FCHMS FMP consistent with the objectives of the FMP, including reducing post-release mortality of Atlantic billfish. Atlantic billfish tournament circle hook requirements were determined to be an effective mechanism to target a known source of billfish mortality in the directed recreational marlin fishery. Recent studies have shown that circle hooks can substantially reduce injury and post-hooking mortality of Atlantic billfish and other species relative to J-hooks. Horodysky and Graves
(2005)found that circle hooks can reduce post-release mortality of white marlin by 65.7 percent relative to J-hooks. They also found that white marlin caught on J-hooks are 41 times more likely to be deeply hooked and 15 times more likely to sustain hook-induced trauma resulting in bleeding relative to fish caught on circle hooks. Prince *et al.* (2002), found similar results pertaining to sailfish. Prince *et al.* , also found no statistical difference in catch per unit of effort between circle hooks and J-hooks when fishing for blue marlin. Cooke and Suski
(2004)analyzed the results of more than 40 circle hook studies examining both marine and fresh water species. For all species examined, they found that mortality rates were approximately 50 percent lower when using circle hooks relative to J-hooks. During the analysis of the FCHMS FMP, NMFS found that between 1999 and 2004, the number of Atlantic white marlin released alive during tournaments ranged from a low of 614 to a high of 2,207. Based on an estimated 35 percent post-release mortality rate for white marlin caught on J-hooks (Horodysky and Graves, 2005), this would equate to between 215 and 773 Atlantic white marlin that would not be expected to survive the catch and release experience. Applying an estimated 12 percent post-release mortality rate for white marlin caught on circle hooks (Horodysky and Graves, 2005) to the same number of released white marlin, this would equate to between 74 and 265 Atlantic white marlin that would not be expected to survive the catch and release experience. The difference between the two indicated a potential ecological benefit of between 141 and 508 Atlantic white marlin surviving the catch and release experience if anglers used circle hooks in tournaments rather then J-hooks. NMFS has continued to receive public comment on the perceived impacts of the billfish tournament circle hook requirement contained in the FCHMS FMP since release of that document in July of 2006. This included comments by anglers indicating that circle hooks will not work well for catching blue marlin; expressing a desire by anglers to continue using J-hooks while fishing for Atlantic blue marlin in tournaments; and noting that deploying J-hooks on mixed-baits with heavy fishing gear was an effective and popular technique employed by anglers during fishing tournaments. Comments also stated that fishing for billfish with J-hooks trolled at high speeds with heavy tackle did not result in high post-release hooking mortalities of Atlantic billfish species. Finally, some commenters supported full implementation of tournament circle hook requirements. In response to these concerns, NMFS considered development of an exempted fishing permit
(EFP)program to collect additional data on this fishing activity in billfish tournaments. Comments received on the development of an EFP program to collect data within billfish tournaments expressed concern over the difficulty of standardizing fishing gear type and use in a tournament setting; concern over the quality of data collected in a tournament setting; and the scientific applicability of such data given the fishing characteristics of tournaments (fast paced activity, focus on catching and retaining specific species and/or size classes, and varying tournament rules), among others. Finally, comments were received that expressed a general lack of support for conducting research and/or data. Based on public comment, NMFS has since determined that the collection of data to evaluate the impacts of J-hooks and heavy tackle on Atlantic blue marlin during billfish tournaments would be problematic because of the varying conditions and methodologies discussed above that would likely occur within and between tournaments, among others. For these reasons, NMFS chose not to issue EFPs to Atlantic billfish tournaments (72 FR 4691; February 1, 2007). Available data indicate that hook type (circle hook versus J-hook) is not a major factor influencing catch rates of blue marlin. Nevertheless, many anglers believe circle hooks to be ineffective and that J-hooks can be deployed in a manner resulting in low post-release mortality. The result has been strong resistance to implementation of circle hooks in certain circumstances and regions. Available studies clearly demonstrate the benefits of circle hooks for billfish and other species, and NMFS believes that concerns over the effectiveness of circle hooks when fishing for Atlantic blue marlin, as well as resistance to their use by tournament anglers, can be overcome as anglers become more familiar and proficient with them. In this action, NMFS proposes to temporarily suspend existing regulations that require Atlantic billfish tournament participants who are fishing from HMS permitted vessels and deploying natural bait or natural bait/artificial lure combinations to use non-offset circle hooks. The preferred alternative is intended to increase post-release survival of Atlantic billfishes by improving long-term compliance with circle hook regulations. To accomplish this, the proposed rule would provide additional time for recreational billfish tournament anglers to become more familiar and proficient with circle hooks and increase awareness among tournament anglers of circle hook conservation benefits. NMFS has received input from numerous anglers and tournament operators who voluntarily switched to using circle hooks prior to the existing tournament requirement who now indicate a strong preference for circle hooks over J-hooks based on conservation benefits and who claim a lower rate of lost fish on circle hooks. Based on the economic incentives discussed above, the input from experienced billfish anglers who have acquired expertise with circle hooks, and existing studies (Prince *et al.* , 2002) indicating that hook type (circle hook vs. J-hook) is not a significant factor in catchability of Atlantic blue marlin, NMFS is confident that the concerns of anglers regarding the effectiveness of circle hooks for catching blue marlin and the resistance to using circle hooks stemming from preconceived ideas of circle hook efficacy and a lack of experience with circle hooks will be overcome if anglers are given more time to become familiar and proficient with them through an additional phase-in period. Fishing techniques vary by species, region, time of day, weather conditions, type of gear and bait deployed, and numerous other factors. There are significant differences in the techniques employed by fishermen when using J-hooks or circle hooks. Two examples are the technique of “setting the hook” with J-hooks and baiting techniques. With J-hooks, anglers are taught to “set the hook” at a given time by jerking hard on the pole and line. This action is meant to drive the point of the J-hook deep into the flesh of the fish to help ensure that the fish cannot escape by throwing the hook loose during the fight. With circle hooks, setting the hook is ineffective because of the hook shape and is a technique that often leads to a loss of the fish. Anglers must not set the hook, but rather wait for the fish to hook itself. This is a significant change in fishing technique for virtually all anglers and learning the subtleties of effective circle hook fishing can take a significant amount of practice. Baiting techniques or configurations can substantially vary between J-hooks and circle hooks. One example is with J-hooks, fishermen may bury the J-hook in the body of the bait, with only the point exposed through a slit in the stomach. With circle hooks, the hook must be free of obstructions and is thus sometimes attached to a halter made of fishing line above the head of a bait by rubber bands. Baiting techniques for circle hooks vary by bait species and target species. It may take a substantial amount of time for anglers to learn new baiting techniques effective with circle hooks. This proposed rule would suspend existing Atlantic billfish tournament circle hook regulations until January 1, 2008, providing approximately seven months for anglers to learn fishing and baiting techniques appropriate for Atlantic billfishes prior to re-implementation of tournament circle hook requirements. As discussed above, NMFS is confident that the provision of additional time for anglers to adjust to circle hook fishing and baiting techniques will help assuage the concerns of anglers and lead to increased compliance with circle hook requirements. As of January 29, 2007, the potential universe of affected anglers includes: 24,664 HMS Angling category permit holders; 4,140 HMS Charter/Headboat category permit holders, and 4,345 General Category permit holders. All of the aforementioned permit holders are eligible to participate in registered Atlantic HMS tournaments. This proposed rule would be expected to have limited short-term adverse ecological impacts as it would temporarily suspend billfish tournament non-offset circle hook requirements for a limited period of time; approximately seven months (May 15 - December 31). This may result in temporary increases in injuries and post-release mortalities for species with which Atlantic billfish fishermen interact. Tournament catch data indicate that tournament interactions with billfish decline to relatively low levels during the last quarter of the year (October - December), with the exception being blue marlin in Puerto Rico. An examination of the tournament catch data indicate that the preferred alternative could result in approximately 317 additional Atlantic white marlin mortalities as a result of J-hook use instead of circle hook use in tournaments. As NMFS cannot quantify the proportion of anglers who may continue to use non-offset circle hooks in billfish tournaments, this estimate assumes all billfish tournament anglers will deploy J-hooks for the period May 15, 2007 - December 31, 2007. NMFS is unable to quantify relative changes in mortality for Atlantic blue marlin or sailfish because of a lack of data regarding post-release survival of these species. NMFS recognizes that some unquantifiable proportion of billfish tournament anglers will continue to use circle hooks. As a result, the actual number of additional Atlantic white marlin mortalities resulting from J-hook use in tournaments may be lower than the estimate provided above. The preferred alternative that would suspend billfish tournament circle hook requirements and allow the use of J-hooks on natural baits is not anticipated to increase fishing effort in any measurable way because no decrease in effort was anticipated when tournament circle hook requirements went into effect. Based on the pace of 2007 tournament registrations, no decrease has been identified, and in fact, tournament registrations for 2007 have been received at a near record pace. It is also not anticipated to result in increased interactions with protected resources. NMFS has received one anecdotal report of such an interaction in HMS recreational fisheries since late 2002. Thus, interactions between the directed Atlantic billfish fishery and protected species appear to be extremely rare. Further, if the proposed rule results in improved long term compliance with circle hook requirements, as anticipated, it may also contribute to a long-term reduction in interactions, injuries, and mortalities of protected resources, and other species with which billfish tournament fishermen interact as a result of hooking mechanics, improved hooking location, and decreased damage of vital tissues generally associated with the use of circle hooks. Should anglers better accept and comply with tournament circle hook restrictions in the long-term as anticipated, NMFS believes that there could be an unquantifiable long-term ecological benefit stemming from increased use of circle hooks both in tournaments and outside of tournaments. The non-tournament ecological benefit may accrue as non-tournament anglers frequently view tournament anglers as innovative leaders and seek to emulate their successful fishing techniques. NMFS believes that this pattern of non-tournament anglers emulating the fishing techniques of successful tournament anglers will hold true with the adoption of circle hooks by tournament anglers as well. Under the proposed measure, NMFS anticipates minimal social or economic impacts. Atlantic billfish anglers likely already possess both circle hooks and J-hooks, and the proposed measure is not anticipated to affect angler participation in tournaments. However, there could be a minor temporary boost to angler's willingness to pay and/or angler consumer surplus based on the perceived ability to more readily catch Atlantic billfish on J-hooks. As stated above, any such changes would likely be so small as to be not measurable. Long-term positive impacts on angler's willingness to pay and/or angler consumer surplus are possible if increased acceptance of circle hooks in tournaments contributes to stock rebuilding and an increased abundance of Atlantic billfish in the future. This measure is proposed because it could lead to increased survival of released Atlantic billfish in the long-term by improving acceptance and compliance with recreational circle hook regulations, and thus contribute to rebuilding of these stocks. Classification This proposed rule is published under the authority of the Magnuson-Stevens Act and ATCA. NMFS has preliminarily determined that this action is consistent with section 304(b)(1) of the Magnuson-Stevens Act, including the national standards, and other applicable law. An EA has been prepared that describes the impact on the human environment that could result from implementation of the preferred alternative to improve post-release survival of Atlantic billfishes by improving acceptance and compliance with tournament circle hook regulations. Based on the EA, Regulatory Impact Review (RIR), and Initial Regulatory Flexibility Analysis
(IRFA)under the Regulatory Flexibility Act, and a review of the National Environmental Policy Act
(NEPA)criteria for significance evaluated above (NAO 216-6 Section 6.02), no significant effect on the quality of the human environment is anticipated from this action. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. In compliance with Section 603 of the Regulatory Flexibility Act, an Initial Regulatory Flexibility Analysis was prepared for this rule. The IRFA analyzes the anticipated economic impacts of the preferred actions and any significant alternatives to the proposed rule that could minimize economic impacts on small entities. A summary of the IRFA is below. The full IRFA and analysis of economic and ecological impacts are available from NMFS (see ADDRESSES ). In compliance with Section 603(b)(1) and
(2)of the Regulatory Flexibility Act, the purpose of this proposed rulemaking is, consistent with the Magnuson-Stevens Act and ATCA, to improve post-release survival of Atlantic billfishes by improving acceptance and compliance with tournament circle hook regulations. Section 603(b)(3) requires Agencies to provide an estimate of the number of small entities to which the rule would apply. The proposed actions to modify recreational billfish tournament circle hook regulations could directly affect 24,664 HMS Angling category permit holders; 4,140 HMS Charter/Headboat category permit holders; and 4,345 General Category permit holders. All of the aforementioned permit holders are eligible to participate in registered Atlantic HMS tournaments. Of these, 8,475 permit holders (the combined number of HMS Charter/Headboat category permit holders and General Category permit holders) are considered small business entities according to the Small Business Administration's standard for defining a small entity. This proposed rule does not contain any new reporting, record keeping, or other compliance requirements (5 U.S.C. 603(c)(1)-(4)). Similarly, this proposed rule does not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 603(b)(5). One of the requirements of an IRFA, under Section 603 of the Regulatory flexibility Act, is to describe any alternatives to the proposed rule that accomplish the stated objectives and that minimize any significant economic impacts (5 U.S.C. 603(c)). Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) lists four categories for alternatives that must be considered. These categories are:
(1)establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
(3)use of performance rather than design standards; and
(4)exemptions from coverage for small entities. In order to meet the objectives of this proposed rule, consistent with the Magnuson-Stevens Act, ATCA, and the Endangered Species Act (ESA), NMFS cannot exempt small entities or change the reporting requirements only for small entities. Thus, there are no alternatives that fall under the first and fourth categories described above. In addition, none of the alternatives considered would result in additional reporting or compliance requirements (category two above). NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act. NMFS considered three different alternatives to increase post-release survival of Atlantic billfishes by improving long-term compliance with circle hook regulations. As previously described, and as expanded upon below, NMFS has provided justification for the selection of the preferred alternative to achieve the desired objectives. Alternative 1 is the no action, or status quo alternative. Under current regulations, anglers fishing from an HMS permitted vessel and participating in an Atlantic billfish tournament must use only non-offset circle hooks when deploying natural bait or natural bait/artificial lure combinations. Under alternative 1, there would be no change in the existing regulations, and as such no change is anticipated in the current baseline economic and social impacts associated with the status quo alternative. This alternative is not preferred because other alternatives may allow for a greater long-term conservation benefit for Atlantic billfish by potentially achieving better acceptance of, and compliance with, tournament circle hook requirements. Under alternative 2, existing Atlantic billfish tournament circle hook requirements, as described in the discussion of alternative 1 above, would be temporarily suspended through December 31, 2007. Current Atlantic billfish tournament circle hook requirements would be reinstated unchanged at 12:01 am January 1, 2008. This alternative would provide roughly seven additional months for anglers to become familiar and proficient with circle hooks as well as better understand their benefits. NMFS anticipates that tournament anglers will practice with circle hooks outside of tournaments during the suspension to gain proficiency with circle hooks to improve their chances of winning prize money in tournaments upon re-implementation of the circle hook requirement in 2008. Motivation for anglers to do so includes vying for top tournament prizes, which in the largest tournaments have exceeded one million dollars for a winning fish. Anglers who have not gained substantial expertise with circle hooks will have a diminished chance of catching a prize winning fish. NMFS has received input from numerous anglers and tournament operators who voluntarily switched to using circle hooks prior to the existing tournament requirement who now indicate a strong preference for circle hooks over J-hooks based on conservation benefits and who claim a lower rate of lost fish on circle hooks. Based on the economic incentives discussed above, the input from experienced billfish anglers who have acquired expertise with circle hooks, and existing studies (Prince *et al.* , 2002) indicating that hook type (circle hook vs. J-hook) is not a significant factor in catchability of Atlantic blue marlin, NMFS is confident that the concerns of anglers regarding the effectiveness of circle hooks for catching blue marlin and the resistance to using circle hooks stemming from preconceived ideas of circle hook efficacy and a lack of experience with circle hooks will be overcome if anglers are given more time to become familiar and proficient with them through an additional phase-in period. NMFS believes that in the long-term, the additional time provided to anglers to become more familiar and proficient with circle hooks may lead to higher levels of compliance with circle-hook requirements and increased use of circle hooks outside of tournaments thereby providing an increased conservation benefit for Atlantic billfish in the long-term. NMFS estimates that there will be few or no measurable social or economic impacts resulting from the preferred alternative. However, it is possible that the temporary suspension of billfish tournament circle hook requirements may provide for a short-term increase in angler's willingness to pay based on the perception among many anglers that it is easier to catch a billfish with a J-hooks than a circle hook. Nonetheless, based in part on recent high levels of tournament registrations for 2007 occurring under circle hook requirements, NMFS does not anticipate any measurable change in billfish tournament participation, increases in purchases of fuel or dockage, or other shore-side services. Should alternative 2 result in an increased ecological benefit, there could be a long-term gain in angler's willingness to pay if billfish stocks recover and interactions with billfish increase. NMFS does not anticipate that alternative 2 would result in additional expenditures to comply with the proposed regulations. Relative to expenditures that can quickly reach into the hundreds of thousands of dollars, or more, to purchase, equip, maintain, and fuel sportfishing vessels, hook expenditures are negligible. The FCHMS FMP identifies hook prices as ranging from $0.50 to $7.50 ($2.70 average) each for J-hooks and from $0.30 to $7.00 ($2.24 average) each for circle hooks (2006 dollars). Tournament anglers likely already possess circle hooks which have been required since January 1, 2007, and which would be required upon reinstatement of existing requirements on January 1, 2008, under the preferred alternative. Further, existing regulations allow anglers to use J-hooks on artificial lures in tournaments and do not require anglers to utilize circle hooks outside of tournaments; because of this, anglers most likely already possess J-hooks, should they choose to stop using circle hooks in tournaments. Alternative 2 does not mandate any particular terminal tackle, so anglers would be free to use any hook type, circle or J, available and which they already possess, which would further minimizing any potential compliance costs. Alternative 3, would remove Atlantic billfish tournament circle hook requirements and promote voluntary use of circle hooks by tournament anglers, and would be expected to have minimal impacts on businesses. Minor economic impacts would be incurred by those tournaments that choose to reprint tournament rules for distribution. Alternative 3 could result in minor short-term increases in angler-consumer surplus and/or willingness to pay, as anglers may perceive that their short-term catch rates of Atlantic billfish may increase with the use of J-hooks. However, alternative 3 would not be expected to increase angler consumer surplus or willingness to pay in the long-term as it would result in an increase in post-release hooking mortality and thus be less likely to contribute to rebuilding of Atlantic billfish populations. List of Subjects in 50 CFR Part 635 Fish, Fisheries, Fishing, Fishing vessels, Management. Dated: March 9, 2007. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows: PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority: 16 U.S.C. 971 *et seq.* ; 16 U.S.C. 1801 *et seq.* 2. In § 635.21, paragraph (e)(2)(iii) is revised to read as follows: § 635.21 Gear operation and deployment restrictions. (e)* * * (2)* * *
(iii)After December 31, 2007, persons who have been issued or are required to be issued a permit under this part and who are participating in a “tournament”, as defined in 635.2, that bestows points, prizes, or awards for Atlantic billfish must deploy only non-offset circle hooks when using natural bait or natural bait/artificial lure combinations, and may not deploy a J-hook or an offset circle hook in combination with natural bait or a natural bait/artificial lure combination. [FR Doc. 07-1216 Filed 3-12-07; 2:43 pm]
Connectionstraces to 43
Traces to 43 documents
U.S. Code
36 references not yet in our index
  • 14 CFR 73
  • 14 CFR 121
  • 5 USC 533(b)
  • 5 USC 533(d)
  • 49 CFR 40
  • 28 CFR 552
  • 29 CFR 4022
  • 29 CFR 4044
  • 30 CFR 250
  • 1 CFR 51
  • 47 CFR 301
  • Pub. L. 109-171
  • 120 Stat. 4
  • 47 CFR 15.117
  • 47 CFR 73.682
  • 47 CFR 73
  • 309 F.3d 796
  • 47 CFR 15.122
  • 47 CFR 15.120
  • 47 CFR 11
  • 47 CFR 15.177(b)
  • 47 CFR 11.11
  • 5 CFR 351
  • 5 CFR 531
  • 5 CFR 536.103
  • 5 CFR 550.703
  • 5 CFR 831.503(b)(3)(iv)
  • 5 CFR 351.403
  • 5 CFR 351.403(c)(4)
  • 5 CFR 351.403(a)
  • 14 CFR 39
  • 32 CFR 635
  • 5 USC 601-612
  • 42 USC 14071
  • 40 CFR 35
  • 50 CFR 635
Citation graph
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Rules and Regulations
Final rule
U.S.C.§ 553
Fed. Reg.Notices
U.S.C.§ 106
C.F.R.§ 135.1
Fed. Reg.Proposed Rules
U.S.C.§ 605
U.S.C.§ 552
U.S.C.§ 301
U.S.C.§ 3621
F. App'x309 F.3d 796
Cite14 CFR 73
Cite14 CFR 121
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