Rules and Regulations. Final rule; request for comments
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BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27824; Directorate Identifier 2003-NE-12-AD; Amendment 39-15026; AD 2006-11-05R1] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce plc RB211 Series Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. SUMMARY: The FAA is revising an existing airworthiness directive
(AD)for Rolls-Royce plc
(RR)RB211-22B series, RB211-524B, -524C2, -524D4, -524G2, -524G3, and -524H series, and RB211-535C and -535E series turbofan engines with high pressure compressor
(HPC)stage 3 disc assemblies, part numbers (P/Ns) LK46210, LK58278, LK67634, LK76036, UL11706, UL15358, UL22577, UL22578, and UL24738 installed. That AD currently requires removing from service certain disc assemblies before they reach their full published life if not modified with anticorrosion protection. This AD requires the same actions but relaxes the removal compliance time for certain disc assemblies that have a record of detailed inspection. This AD results from the FAA allowing certain affected disc assemblies that entered into service before 1990 that have a record of detailed inspections, to remain in service for a longer period than the previous AD allowed. We are issuing this AD to relax the compliance time for certain disc assemblies and track the disc life based on a detailed inspection rather than by its entry into service date, while continuing to prevent corrosion-induced uncontained disc assembly failure, resulting in damage to the airplane. DATES: Effective May 1, 2007. The Director of the **Federal Register** previously approved the incorporation by reference of certain publications listed in the regulations as of February 24, 2004 (69 FR 2661, January 20, 2004). We must receive any comments on this AD by June 15, 2007. ADDRESSES: Use one of the following addresses to comment on this 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 20590-0001. • *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. Contact Rolls-Royce plc, P.O. Box 31, Derby, England, DE248BJ; telephone: 011-44-1332-242424; fax: 011-44-1332-245-418, for the service information identified in this AD. FOR FURTHER INFORMATION CONTACT: Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park; Burlington, MA 01803; e-mail: *ian.dargin@faa.gov;* telephone
(781)238-7178; fax
(781)238-7199. SUPPLEMENTARY INFORMATION: On May 15, 2006, the FAA issued AD 2006-11-05, Amendment 39-14609 (71 FR 29586, May 23, 2006). We also issued a correction to that AD on September 26, 2006 (71 FR 58254, October 3, 2006). That AD requires removing from service certain disc assemblies before they reach their full published life if not modified with anticorrosion protection. That AD was the result of the manufacturer's reassessment of the corrosion risk on HPC stage 3 disc assemblies that have not yet been modified with sufficient application of anticorrosion protection. That condition, if not corrected, could result in corrosion-induced uncontained disc assembly failure, resulting in damage to the airplane. Actions Since AD 2006-11-05 Was Issued Since AD 2006-11-05 was issued, RR revised an applicable mandatory service bulletin (MSB). That MSB allows affected disc assemblies that entered into service before 1990 that have a record of detailed inspections, to remain in service for 17 years from last overhaul inspection date. But the discs are not to exceed the manufacturer's published cyclic limit in the time limits section of the manual. We are issuing this AD to relax the compliance time for certain disc assemblies and track the disk life based on a detailed inspection rather than by its entry into service date, while continuing to prevent corrosion-induced uncontained disc assembly failure, resulting in damage to the airplane. Relevant Service Information We have reviewed and approved the technical contents of RR MSB No. RB.211-72-9661, Revision 5, dated December 22, 2006. That MSB allows affected disc assemblies that entered into service before 1990; and that have a record of detailed inspection: • To remain in service for 17 years from last overhaul inspection date; but • Not to exceed the manufacturer's published cyclic limit in the time limits section of the manual. We do not incorporate by reference this MSB, but we list it under related information. Bilateral Airworthiness Agreement This engine model is manufactured in the United Kingdom (UK), and is 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. Under this bilateral airworthiness agreement, the CAA, which is the airworthiness authority for the UK, has kept the FAA informed of the situation described above. We have examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. FAA's Determination and Requirements of This AD The unsafe condition described previously is likely to exist or develop on other
(RR)RB211-22B series, RB211-524B, -524C2, -524D4, -524G2, -524G3, and -524H series, and RB211-535C and -535E series turbofan engines of the same type design. We are issuing this AD to relax the compliance time for certain disc assemblies and to prevent corrosion-induced uncontained disc assembly failure, resulting in damage to the airplane. This AD requires the following for affected HPC stage 3 rotor disc assemblies: • Removing affected disc assemblies from service; and • Re-machining, inspecting, and applying anticorrosion protection; and • Re-marking, and returning disc assemblies into service; and • Allowing affected disc assemblies that entered into service before 1990 that have a record of detailed inspection, to remain in service for 17 years from last overhaul inspection date but not to exceed the manufacturer's published cyclic limit in the time limits section of the manual. You must use the service information described previously to perform the actions required by this AD. FAA's Determination of the Effective Date Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable. Good cause exists for making this amendment effective in less than 30 days. Comments Invited This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “AD Docket No. FAA-2007-27824; Directorate Identifier 2003-NE-12-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. 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 AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets. This includes 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 AD Docket You may examine the docket that contains the AD, any comments received, and any final disposition 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 on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them. Docket Number Change We are transferring the docket for this AD to the Docket Management System as part of our on-going docket management consolidation efforts. The new Docket No. is FAA-2007-27824. The old Docket No. became the Directorate Identifier, which is 2003-NE-12-AD. This AD might get logged into the DMS docket, ahead of the previously collected documents from the old docket file, as we are in the process of sending those items to the DMS. 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 AD will not have federalism implications under Executive Order 13132. This AD will 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 this AD: 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 summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (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 Amendment 39-14609 (71 FR 29586, May 23, 2006) and by adding a new airworthiness directive, Amendment 39-15026, to read as follows: **2006-11-05R1 Rolls-Royce plc:** Amendment 39-15026. Docket No. FAA-2007-27824; Directorate Identifier 2003-NE-12-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective May 1, 2007. Affected ADs
(b)This AD revises AD 2006-11-05, Amendment 39-14609. Applicability
(c)This AD applies to Rolls-Royce plc
(RR)RB211-22B series, RB211-524B, -524C2, -524D4, -524G2, -524G3, and -524H series, and RB211-535C and -535E series turbofan engines with high pressure compressor
(HPC)stage 3 disc assemblies, part numbers (P/Ns) LK46210, LK58278, LK67634, LK76036, UL11706, UL15358, UL22577, UL22578, and UL24738 installed. These engines are installed on, but not limited to, Boeing 747, Boeing 757, Boeing 767, Lockheed L-1011, and Tupolev Tu204 series airplanes. Unsafe Condition
(d)This AD results from the FAA allowing certain affected disc assemblies that entered into service before 1990 that have a record of detailed inspections, to remain in service for a longer period than the previous AD allowed. We are issuing this AD to relax the compliance time for certain disc assemblies and track the disc life based on a detailed inspection rather than by its entry into service date, while continuing to prevent corrosion-induced uncontained disc assembly failure, resulting in damage to 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. Removal of HPC Stage 3 Disc Assemblies
(f)Remove from service affected HPC stage 3 disc assemblies identified in the following Table 1, using one of the following criteria: Table 1.—Affected HPC Stage 3 Disc Assemblies Engine model Rework band for cyclic life accumulated on disc assemblies P/Ns LK46210 and LK58278 (Pre RR Service Bulletin
(SB)No. RB.211-72-5420) Rework band for cyclic life accumulated on disc assembly P/N LK67634 (pre RR SB No. RB.211-72-5420) Rework band for cyclic life accumulated on P/Ns LK76036, UL11706, UL15358, UL22577, UL22578, and UL24738 disc assemblies (pre RR SB No. RB.211-72-9434) -22B series 4,000-6,200 7,000-10,000 11,500-14,000 -535E4 series N/A N/A 9,000-15,000 -524B-02, B-B-02, B3-02, and B4 series, Pre and Post accomplishment of SB No. 72-7730 4,000-6,000 7,000-9,000 11,500-14,000 -524B2 and C2 series, Pre SB No. 72-7730 4,000-6,000 7,000-9,000 11,500-14,000 -524B2-B-19 and C2-B-19, SB No. 72-7730 4,000-6,000 7,000-9,000 8,500-11,000 -524D4 series, Pre SB No. 72-7730 4,000-6,000 7,000-9,000 11,500-14,000 -524D4-B series, SB No. 72-7730 4,000-6,000 7,000-9,000 8,500-11,000 -524G2, G3, H, and H2 series 4,000-6,000 7,000-9,000 8,500-11,000
(1)For disc assemblies that entered into service before 1990, remove disc assembly and rework as specified in paragraph (g)(2) of this AD, on or before January 4, 2007, but not to exceed the upper cyclic limit in Table 1 of this AD before rework. Disc assemblies reworked may not exceed the manufacturer's published cyclic limit in the time limits section of the manual.
(2)For disc assemblies that entered into service in 1990 or later, remove disc assembly within the cyclic life rework bands in Table 1 of this AD, or within 17 years after the date of the disc assembly entering into service, whichever is sooner, but not to exceed the upper cyclic limit of Table 1 of this AD before rework. Disc assemblies reworked may not exceed the manufacturer's published cyclic limit in the time limits section of the manual.
(3)For disc assemblies that when new, were modified with an application of anticorrosion protection and re-marked to P/N LK76036 (not previously machined) as specified by Part 1 of the original issue of RR service bulletin
(SB)No. RB.211-72-5420, dated April 20, 1979, remove RB211-22B disc assemblies before accumulating 10,000 cycles-in-service (CIS), and remove RB211-524 disc assemblies before accumulating 9,000 CIS.
(4)If the disc assembly date of entry into service cannot be determined, the date of disc assembly manufacture may be obtained from RR and used instead.
(5)Disc assemblies in RB211-535C operation are unaffected by the interim rework cyclic band limits in Table 1 of this AD, but must meet the calendar life requirements of either paragraph (f)(1) or (f)(2) of this AD, as applicable. Optional Rework of HPC Stage 3 Disc Assemblies
(g)Rework HPC stage 3 disc assemblies that were removed in paragraph
(f)of this AD as follows:
(1)For disc assemblies that when new, were modified with an application of anticorrosion protection and re-marked to P/N LK76036 (not previously machined) as specified by Part 1 of the original issue of RR SB RB.211-72-5420, dated April 20, 1979, rework disc assemblies and re-mark to either LK76034 or LK78814 using paragraph 2.B. of the Accomplishment Instructions of RR SB No. RB.211-72-5420, Revision 4, dated February 29, 1980. This rework constitutes terminating action to the removal requirements in paragraph
(f)of this AD.
(2)For all other disc assemblies, rework using Paragraph 3.B. of the Accomplishment Instructions of RR SB No. RB.211-72-9434, Revision 4, dated January 12, 2000. This rework constitutes terminating action to the removal requirements in paragraph
(f)of this AD.
(3)If rework is done on disc assemblies that are removed before the disc assembly reaches the lower life of the cyclic life rework band in Table 1 of this AD, artificial aging of the disc assembly to the lower life of the rework band, at time of rework, is required.
(4)Disc assemblies that entered into service before 1990 that have a record of detailed inspection are allowed to remain in service for 17 years from last overhaul inspection date but not to exceed the manufacturer's published cyclic limit in the time limits section of the manual. Alternative Methods of Compliance
(h)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information
(i)Civil Aviation Authority airworthiness directive 004-01-94, dated January 4, 2002, and RR Mandatory Service Bulletin No. RB.211-72-9661, Revision 5, dated December 22, 2006, pertain to the subject of this AD. Material Incorporated by Reference
(j)You must use Rolls-Royce plc Service Bulletin No. RB.211-72-5420, Revision 4, dated February 29, 1980, and Rolls-Royce plc Service Bulletin No. RB.211-72-9434, Revision 4, dated January 12, 2000, to perform the rework required by this AD. The Director of the Federal Register previously approved the incorporation by reference of these service bulletins in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, as of February 24, 2004 (69 FR 2661, January 20, 2004). You can get copies from Rolls-Royce plc, P.O. Box 31, Derby, England, DE248BJ; telephone: 011-44-1332-242424; fax: 011-44-1332-245-418. You can review copies at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.*
(k)Contact Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *ian.dargin@faa.gov;* telephone
(781)238-7178; fax
(781)238-7199, for more information about this AD. Issued in Burlington, Massachusetts, on April 9, 2007. Francis A. Favara, Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-7032 Filed 4-13-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30545; Amdt. No. 3214] Standard Instrument Approach Procedures, Weather Takeoff Minimums; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and/or Weather Takeoff Minimums for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective April 16, 2007. The compliance date for each SIAP and/or Weather Takeoff Minimums is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of April 16, 2007. ADDRESSES: Availability of matters incorporated by reference in the amendment is as follows: *For Examination* — 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . *For Purchase* —Individual SIAP and Weather Takeoff Minimums copies may be obtained from: 1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2. The FAA Regional Office of the region in which the affected airport is located. *By Subscription* —Copies of all SIAPs and Weather Takeoff Minimums mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. FOR FURTHER INFORMATION CONTACT: Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone:
(405)954-4164. SUPPLEMENTARY INFORMATION: This amendment to Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above. The large number of SIAPs and/or Weather Takeoff Minimums, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs and/or Weather Takeoff Minimums but refer to their depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP and/or Weather Takeoff Minimums contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs and/or Weather Takeoff Minimums. This amendment also identifies the airport, its location, the procedure identification and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center
(FDC)Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided. Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums effective in less than 30 days. Conclusion 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. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 97 Air traffic control, Airports, Incorporation by reference, and Navigation (Air). Issued in Washington, DC, on April 6, 2007. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, under Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and Weather Takeoff Minimums effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: Effective 10 May 2007 Bessemer, AL, Bessemer, ILS OR LOC RWY 5, Amdt 1 El Dorado, AR, South Arkansas Regional at Goodwin Field, ILS OR LOC RWY 22, Amdt 1 Little Rock, AR, Adams Field, RADAR-1, Amdt 17 Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 7L, Amdt 6 Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 7R, Amdt 5 Los Angeles, CA, Los Angeles Intl, RNAV
(GPS)RWY 7L, Amdt 1 Los Angeles, CA, Los Angeles Intl, RNAV
(GPS)RWY 7R, Amdt 1 Los Angeles, CA, Los Angeles Intl, Takeoff Minimums and Textual DP, Amdt 11 San Bernardino, CA, San Bernardino International, LOC Y RWY 6, Orig San Bernardino, CA, San Bernardino International, ILS OR LOC Z RWY 6, Amdt 2 Wilmington, DE, New Castle, ILS OR LOC RWY 1, Amdt 21 West Palm Beach, FL, Palm Beach Intl, ILS OR LOC RWY 9L, Amdt 24 Thomasville, GA, Thomasville Regional, Takeoff Minimums and Obstacle DP, Amdt 1 Phillipsburg, KS, Phillipsburg Muni, NDB-A, Amdt 1 Lafayette, LA, Lafayette Regional, RNAV
(GPS)RWY 4R, Orig Lafayette, LA, Lafayette Regional, RNAV
(GPS)RWY 22L, Orig Lafayette, LA, Lafayette Regional, ILS OR LOC/DME RWY 4R, Amdt 1 Lafayette, LA, Lafayette Regional, VOR RWY 4R, Amdt 2 New Orleans, LA, Louis Armstrong New Orleans Intl, Takeoff Minimums and Obstacle DP, Amdt 1 Shreveport, LA, Shreveport Regional, Takeoff Minimums and Textual DP, Orig Friendly, MD, Potomac Airfield, VOR/DME RWY 6, Orig, CANCELLED Friendly, MD, Potomac Airfield, RNAV
(GPS)RWY 6, Orig Friendly, MD, Potomac Airfield, GPS RWY 6, Orig, CANCELLED Boonville, MO, Jesse Viertel Memorial, RNAV
(GPS)RWY 18, Orig Boonville, MO, Jesse Viertel Memorial, GPS RWY 18, Orig, CANCELLED Boonville, MO, Jesse Viertel Memorial, RNAV
(GPS)RWY 36, Orig Boonville, MO, Jesse Viertel Memorial, GPS RWY 36, Orig, CANCELLED Boonville, MO, Jesse Viertel Memorial, VOR-A, Amdt 5 Boonville, MO, Jesse Viertel Memorial, Takeoff Minimums and Textual DP, Orig Fulton, MO, Elton Hensley Memorial, NDB RWY 5, Amdt 1B, CANCELLED Fulton, MO, Elton Hensley Memorial, NDB OR GPS RWY 23, Amdt 1A, CANCELLED Kansas City, MO, Kansas City Intl, ILS OR LOC RWY 9, Amdt 12 Warrensburg, MO, Skyhaven, VOR/DME RNAV OR GPS RWY 18, Amdt 1, CANCELLED Warrensburg, MO, Skyhaven, VOR/DME-A, Amdt 2 Warrensburg, MO, Skyhaven, RNAV
(GPS)RWY 18, Orig Warrensburg, MO, Skyhaven, RNAV
(GPS)RWY 36, Orig Warrensburg, MO, Skyhaven, GPS RWY 36, Orig, CANCELLED Warrensburg, MO, Skyhaven, Takeoff Minimums and Textual DP, Amdt 1 Clinton, NC, Sampson County, RNAV
(GPS)RWY 6, Amdt 1 Clinton, NC, Sampson County, LOC RWY 6, Amdt 2 Clinton, NC, Sampson County, Takeoff Minimums and Obstacle DP, Orig Edenton, NC, Northeastern Rgnl, LOC RWY 19, Orig Wilmington, NC, Wilmington Intl, ILS OR LOC/DME RWY 6, Orig Wilmington, NC, Wilmington Intl, ILS OR LOC RWY 24, Orig Wilmington, NC, Wilmington Intl, Takeoff Minimums and Obstacle DP, Amdt 1 Goldsboro, NC, Goldsboro-Wayne Muni, Takeoff Minimums and Textual DP, Amdt 1 Fremont, NE, Fremont Muni, RNAV
(GPS)RWY 13, Orig Fremont, NE, Fremont Muni, GPS RWY 13, Orig-B, CANCELLED Newark, NJ, Newark Liberty Intl, RNAV
(RNP)Y RWY 22L, Orig-B Silver City, NM, Grant County, LOC/DME RWY 26, Amdt 5 Shirley, NY, Brookhaven, RNAV
(GPS)RWY 15, Orig Shirley, NY, Brookhaven, RNAV
(GPS)Y RWY 24, Amdt 1 Shirley, NY, Brookhaven, RNAV
(GPS)Z RWY 24, Orig Norman, OK, University of Oklahoma Westheimer, ILS OR LOC RWY 17, Orig-A Allentown, PA, Lehigh Valley Intl, TACAN-C, Orig Charleston, SC, Charleston AFB/INTL, Radar-1, Amdt 17, CANCELLED Dallas, TX, Addison, ILS OR LOC RWY 15, Amdt 11 Dallas, TX, Addison, ILS OR LOC RWY 33, Amdt 3 Dallas, TX, Addison, RNAV
(GPS)RWY 15, Amdt 1 Dallas, TX, Addison, RNAV
(GPS)RWY 33, Amdt 1 Dallas-Fort Worth, TX, Dallas Fort Worth Intl, CONVERGING ILS RWY 13R, Amdt 6 Dallas-Fort Worth, TX, Dallas Fort Worth Intl, CONVERGING ILS RWY 31R, Amdt 7 Dallas-Fort Worth, TX, Dallas Fort Worth Intl, ILS OR LOC RWY 13R, Amdt 7 Dallas-Fort Worth, TX, Dallas Fort Worth Intl, ILS OR LOC RWY 31R, Amdt 13 Dallas-Fort Worth, TX, Dallas Fort Worth Intl, RNAV
(GPS)Y RWY 13R, Amdt 1 Dallas-Fort Worth, TX, Dallas Fort Worth Intl, RNAV
(GPS)Y RWY 31R, Amdt 1 Dallas-Fort Worth, TX, Dallas Fort Worth Intl, RNAV
(GPS)Y RWY 31L, Orig Dallas-Fort Worth, TX, Dallas Fort Worth Intl, RNAV
(RNP)Z RWY 13R, Orig Dallas-Fort Worth, TX, Dallas Fort Worth Intl, RNAV
(RNP)Z RWY 31L, Orig Dallas-Fort Worth, TX, Dallas Fort Worth Intl, RNAV
(RNP)Z RWY 31R, Orig Houston, TX, David Wayne Hooks Memorial, RNAV
(GPS)RWY 17R, Amdt 1 Houston, TX, David Wayne Hooks Memorial, RNAV
(GPS)RWY 35L, Amdt 1 Houston, TX, Houston-Southwest, RNAV
(GPS)RWY 9, Amdt 2 Houston, TX, Houston-Southwest, RNAV
(GPS)RWY 27, Amdt 1 Lynchburg, VA, Falwell, Takeoff Minimums and Textual DP, Orig Effective 05 July 2007 Birmingham, AL, Birmingham Intl, RADAR-1, Amdt 19B, CANCELLED La Porte, IN, La Porte Muni, RNAV
(GPS)RWY 2, Orig La Porte, IN, La Porte Muni, RNAV
(GPS)RWY 20, Orig La Porte, IN, La Porte Muni, LOC/NDB RWY 2, Amdt 1 La Porte, IN, La Porte Muni, VOR-A, Amdt 7 La Porte, IN, La Porte Muni, GPS RWY 2, Orig-B, CANCELLED La Porte, IN, La Porte Muni, VOR/DME RNAV OR GPS RWY 20, Amdt 5, CANCELLED La Porte, IN, La Porte Muni, Takeoff Minimums and Obstacle Departure Procedures, Amdt 2 The FAA published a Cancellation in Docket No. 30543 Amdt No. 3212 to Part 97 of the Federal Aviation Regulations (Vol 72, FR No. 63, page 15827, dated April 3, 2007) Under Section 97.23 effective 10 May 2007, which is hereby rescinded: Marysville, CA, Yuba County, VOR RWY 32, Amdt 10D, CANCELLED The FAA published an Original in Docket No. 30543 Amdt No. 3212 to Part 97 of the Federal Aviation Regulations (Vol 72, FR No. 63, page 15827, dated April 3, 2007) under Section 97.33 effective 10 May 2007 which is hereby rescinded: Middlesboro, KY, Middlesboro-Bell County, RNAV (GPS)-A, Orig [FR Doc. E7-7063 Filed 4-13-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30546; Amdt. No. 3215] Standard Instrument Approach Procedures; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment amends Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective April 16, 2007. The compliance date for each SIAP is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of April 16, 2007. ADDRESSES: Availability of matter incorporated by reference in the amendment is as follows: *For Examination—* 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Ave., SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; or 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169; or, 4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . *For Purchase—* Individual SIAP copies may be obtained from: 1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2. The FAA Regional Office of the region in which the affected airport is located. *By Subscription—* Copies of all SIAPs, mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. FOR FURTHER INFORMATION CONTACT: Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone:
(405)954-4164. SUPPLEMENTARY INFORMATION: This amendment to Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) amends Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), which is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Code of Federal Regulations. Materials incorporated by reference are available for examination or purchase as stated above. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs. The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days. Further, the SIAPs contained in this amendment are based on the criteria contained in TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days. Conclusion 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. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 97 Air traffic control, Airports, Incorporation by reference, and Navigation (Air). Issued in Washington, DC on April 6, 2007. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, LDA w/GS, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, MLS, TLS, GLS, WAAS PA, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; § 97.35 COPTER SIAPs, § 97.37 Takeoff Minima and Obstacle Departure Procedures. Identified as follows: * * * Effective Upon Publication FDC date State City Airport FDC No. Subject 03/21/07 MN WARROAD WARROAD INTL—SWEDE CARLSON FIELD 7/5383 ILS RWY 31, AMDT 1. 03/26/07 SC BEAUFORT BEAUFORT COUNTY 7/6551 RADAR-1, AMDT 3. 03/29/07 CA LONG BEACH LONG BEACH/DAUGHERTY FIELD 7/6572 RNAV
(RNP)RWY 12, ORIG. 04/05/07 FL TAMPA TAMPA INTL 7/7163 RNAV
(RNP)Y RWY 18L, ORIG-B. 04/05/07 FL FORT LAUDERDALE FORT LAUDERDALE/HOLLYWOOD INTL 7/7165 RNAV
(RNP)Z RWY 9R, ORIG-A. 04/05/07 FL FORT LAUDERDALE FORT LAUDERDALE/HOLLYWOOD INTL 7/7166 RNAV
(RNP)Y RWY 9L, ORIG-A. 04/05/07 SC BARNWELL BARNWELL COUNTY 7/7240 TAKEOFF MINIMUMS AND OBSTACLE DP, AMDT 1. 05/04/07 FL FORT LAUDERDALE FORT LAUDERDALE/HOLLYWOOD INTL 7/7164 RNAV
(RNP)Z RWY 27R, ORIG-A. [FR Doc. E7-7061 Filed 4-13-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE Office of the Secretary 15 CFR Parts 19, 21 and 22 [Docket Number: 070216039-7040-01] RIN: 0605-AA24 Commerce Debt Collection AGENCY: Office of the Chief Financial Officer and Assistant Secretary for Administration, Department of Commerce. ACTION: Interim final rule with request for comments. SUMMARY: This rule revises the Department of Commerce (Commerce Department or Commerce) debt collection regulations to conform to the Debt Collection Improvement Act of 1996, the revised Federal Claims Collection Standards, and other laws applicable to the collection of non-tax debts owed to the Commerce Department. This rule also revises Commerce's regulations governing the offset of Commerce-issued payments to collect debts owed to other Federal agencies. DATES: This rule is effective May 16, 2007; comments must be received on or before May 16, 2007. ADDRESSES: Send comments to the Deputy Chief Financial Officer, Office of Financial Management, Department of Commerce, 1401 Constitution Avenue, NW., Room 6827, Washington, DC 20230. Comments also may be submitted by electronic mail to *OFMOffice@doc.gov* . FOR FURTHER INFORMATION CONTACT: Lisa Casias, Deputy Chief Financial Officer and Director for Financial Management, Office of Financial Management, at
(202)482-1207, Department of Commerce, 1401 Constitution Avenue, NW., Room 6827, Washington, DC 20230. This document is available for downloading from the Department of Commerce, Office of Financial Management's Web site at the following address: *http://osec.doc.gov/ofm/OFM%20Publications.htm.* SUPPLEMENTARY INFORMATION: Background This rule revises and replaces Department of Commerce (Commerce Department or Commerce) debt collection regulations found at 15 CFR Parts 19, 21 and 22 to conform to the Debt Collection Improvement Act of 1996 (DCIA), Public Law 104-134, 110 Stat. 1321, 1358 (Apr. 26, 1996), the revised Federal Claims Collection Standards, 31 CFR Chapter IX (Parts 900 through 904), and other laws applicable to the collection of non-tax debt owed to the Government. This regulation provides procedures for the collection of non-tax debts owed to Commerce Department entities. Commerce adopts the Government-wide debt collection standards promulgated by the Departments of the Treasury and Justice, known as the Federal Claims Collection Standards (FCCS), as revised on November 22, 2000 (65 FR 70390), and supplements the FCCS by prescribing procedures consistent with the FCCS, as necessary and appropriate for Commerce operations. This regulation also provides the procedures for the collection of debts owed to other Federal agencies when a request for offset is received by Commerce. This regulation does not apply to the collection of tax debts, which is governed by the Internal Revenue Code of 1986 (26 U.S.C. 1 *et seq.* ) and regulations, policies and procedures issued by the Internal Revenue Service. This regulation does not contain a section regarding the delegation of debt collection authority within the Commerce Department. The delegation is contained in the Department of Commerce Credit and Debt Management Operating Procedures Handbook (currently available at *http://www.osec.doc.gov/ofm/credit/cover.htm* ), and does not need to be included in the revised regulation. Nothing in this regulation precludes the use of collection remedies not contained in this regulation. For example, Commerce entities may collect unused travel advances through setoff of an employee's pay under 5 U.S.C. 5705. Commerce entities and other Federal agencies may simultaneously use multiple collection remedies to collect a debt, except as prohibited by law. Commerce entities may, but are not required to, promulgate additional policies and procedures consistent with this regulation, the FCCS, and other applicable Federal laws, policies, and procedures, subject to the approval of the Deputy Chief Financial Officer. Section Analysis Subpart A—Sections 19.1 Through 19.3 Subpart A of this regulation addresses the general provisions applicable to the collection of non-tax debts owed to Commerce, including to offices and bureaus (collectively referred to as Commerce entities). Commerce offices currently include the Office of the Secretary of Commerce, and the Office of Inspector General. Commerce bureaus currently include the Bureau of Industry and Security, the Economics and Statistics Administration (including the Bureau of Economic Analysis, and the Bureau of the Census), the Economic Development Administration, the International Trade Administration, the Minority Business Development Agency, the National Oceanic and Atmospheric Administration, the National Telecommunications and Information Administration, the U.S. Patent and Trademark Office, and the Technology Administration (including the National Institute of Standards and Technology, and the National Technical Information Service). As stated in Section 19.2 of this interim final rule, nothing in this regulation requires a Commerce entity to duplicate notices or administrative proceedings required by contract, this regulation or other laws or regulations, including but not limited to financial assistance awards or related regulations (including those relating to grants, cooperative agreements, loans or loan guarantees). Thus, for example, a Commerce entity is not required to provide a debtor with two hearings on the same issue merely because the entity uses two different collection tools, each of which requires that the debtor be provided with a hearing. Subpart B—Sections 19.4 Through 19.19 Subpart B of this regulation describes the procedures to be followed by Commerce entities when collecting debts owed to the Commerce Department. Among other things, subpart B outlines the due process procedures Commerce entities are required to follow when using offset (administrative, tax refund and salary) to collect a Commerce debt, when garnishing a debtor's wages, or before reporting a Commerce debt to a credit bureau. Specifically, Commerce entities are required to provide debtors with notice of the amount and type of Commerce debt, the intended collection action to be taken, how a debtor may pay the Commerce debt or make alternate repayment arrangements, how a debtor may review documents related to the Commerce debt, how a debtor may dispute the Commerce debt, and the consequences to the debtor if the Commerce debt is not paid. This regulation does not require Commerce entities to send notices by certified mail. The Commerce Department has determined that the certified mail requirement imposes an unnecessary administrative burden and expense. Notices may be sent by first-class mail, and if not returned by the United States Postal Service, Commerce entities may presume that the notice was received. See *Rosenthal* v. *Walker* , 111 U.S. 185 (1884); *Mahon* v. * Credit Bureau of Placer County Incorporated* , 171 F.3d 1197 (9th Cir. 1999). Nothing in these regulations precludes the use of other forms of delivery of notice which are either required by statute or contract or are intended to effect prompt delivery of the notice under appropriate circumstances, including the use of certified mail, express mail or hand delivery. Subpart B also explains the circumstances under which Commerce entities may waive interest, penalties and administrative costs. This regulation updates Commerce Department procedures to reflect changes required by the DCIA. For example, the DCIA centralized the use of offset by requiring agencies to refer debts delinquent more than 180 days to the Financial Management Service for offset. See 31 U.S.C. 3716(c)(6). The Financial Management Service disburses millions of Federal payments annually and is required to offset payments to persons who owe delinquent debts to the Government. Prior to the DCIA, agencies were required to contact the particular agency issuing a payment in order to initiate the offset of a Federal payment. This regulation also incorporates procedures for several collection remedies authorized by the DCIA, such as administrative wage garnishment and barring delinquent debtors from obtaining additional Federal loan assistance. This regulation does not specify the dollar threshold for which legal approval of compromises or suspension or termination of debt collection activity is required. This information is contained in the Department of Commerce Credit and Debt Management Operating Procedures Handbook (currently located at *http://www.osec.doc.gov/ofm/credit/cover.htm* ). Subpart C—Sections 19.20 and 19.21 Subpart C of this regulation describes the procedures to be followed when a Federal agency, other than a Commerce entity, would like to use the offset process to collect a debt from a non-tax payment issued by the Commerce Department as a payment agency. This is distinguished from the offset of payments disbursed by the Treasury Department's Financial Management Service in its capacity as disbursing agency for the Federal Government. The offset of payments disbursed by the Financial Management Service, including tax refund payments issued by the Internal Revenue Service and social security benefit payments issued by the Social Security Administration, is conducted through the Treasury Offset Program and is governed by regulations found at 31 CFR part 285, as well as agency-specific regulations. Subpart C of this regulation governs the process for offsets that occur on an *ad hoc* , case-by-case basis to collect debts from payments made by the Commerce Department to its employees, its vendors, its financial assistance award recipients (including recipients of grants, cooperative agreements, loans or loan guarantees), and others to whom the Commerce Department is required or authorized to pay. While centralized offset through the Treasury Offset Program is the Government's primary offset collection tool, this regulation provides the procedures to be used when centralized offset is otherwise not available or appropriate. An agency's use of the non-centralized administrative offset process shall not provide grounds to invalidate any offset on the basis that centralized offset was not used. Regulatory Analysis E.O. 12866, Regulatory Review This rule is not a significant regulatory action as defined in Executive Order 12866. Administrative Procedure Act The Commerce Department is promulgating this interim final rule without prior notice and opportunity for public comment pursuant to the Administrative Procedure Act, 5 U.S.C. 553
(APA)because this rule is exempt under 5 U.S.C. 553(a)(2). This regulation provides procedures for the collection of non-tax debts owed to Commerce Department entities. Commerce adopts the Government-wide debt collection standards promulgated by the Departments of the Treasury and Justice, known as the Federal Claims Collection Standards (FCCS), as revised on November 22, 2000 (65 FR 70390), and supplements the FCCS by prescribing procedures consistent with the FCCS, as necessary and appropriate for Commerce operations. This regulation also provides the procedures for the collection of debts owed to other Federal agencies when a request for offset is received by Commerce. Although prior notice of this rulemaking and opportunity for public comment are not required under the APA (see 5 U.S.C. 553(b)), the public is invited to submit comments on the interim final rule. Regulatory Flexibility Act Because notice of proposed rulemaking and opportunity for comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility act (5 U.S.C. 601, *et seq.* ) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared. List of Subjects in 15 CFR Part 19 Administrative practice and procedure, Claims, Debts, Garnishment of wages, Government employee, Hearing and appeal procedures, Pay administration, Salaries, Wages. Authority and Issuance For the reasons set forth in the preamble, and under the authority of 31 U.S.C. 3701, *et seq.* , the Commerce Department amends 15 CFR subtitle A as follows: 1. Part 19 is revised to read as follows: PART 19—COMMERCE DEBT COLLECTION Subpart A—General Provisions Sec. 19.1 What definitions apply to the regulations in this Part? 19.2 Why has the Commerce Department issuing these regulations and what do they cover? 19.3 Do these regulations adopt the Federal Claims Collection Standards (FCCS)? Subpart B—Procedures to Collect Commerce Debts 19.4 What notice will Commerce entities send to a debtor when collecting a Commerce debt? 19.5 How will Commerce entities add interest, penalty charges, and administrative costs to a Commerce debt? 19.6 When will Commerce entities allow a debtor to pay a Commerce debt in installments instead of one lump sum? 19.7 When will Commerce entities compromise a Commerce debt? 19.8 When will Commerce entities suspend or terminate debt collection on a Commerce debt? 19.9 When will Commerce entities transfer a Commerce debt to the Treasury Department's Financial Management Service for collection? 19.10 How will Commerce entities use administrative offset (offset of non-tax Federal payments) to collect a Commerce debt? 19.11 How will Commerce entities use tax refund offset to collect a Commerce debt? 19.12 How will Commerce entities offset a Federal employee's salary to collect a Commerce debt? 19.13 How will Commerce entities use administrative wage garnishment to collect a Commerce debt from a debtor's wages? 19.14 How will Commerce entities report Commerce debts to credit bureaus? 19.15 How will Commerce entities refer Commerce debts to private collection agencies? 19.16 When will Commerce entities refer Commerce debts to the Department of Justice? 19.17 Will a debtor who owes a Commerce or other Federal agency debt, and persons controlled by or controlling such debtors, be ineligible for Federal loan assistance, grants, cooperative agreements, or other sources of Federal funds or for Federal licenses, permits or privileges? 19.18 How does a debtor request a special review based on a change in circumstances such as catastrophic illness, divorce, death, or disability? 19.19 Will Commerce entities issue a refund if money is erroneously collected on a Commerce debt? Subpart C—Procedures for Offset of Commerce Department Payments to Collect Debts Owed to Other Federal Agencies 19.20 How do other Federal agencies use the offset process to collect debts from payments issued by a Commerce entity? 19.21 What does a Commerce entity do upon receipt of a request to offset the salary of a Commerce entity employee to collect a debt owed by the employee to another Federal agency? Authority: 31 U.S.C. 3701, *et seq.* Subpart A—General Provisions § 19.1 What definitions apply to the regulations in this Part? As used in this Part: *Administrative offset* or *offset* means withholding funds payable by the United States (including funds payable by the United States on behalf of a state government) to, or held by the United States for, a person to satisfy a debt owed by the person. The term “administrative offset” can include, but is not limited to, the offset of Federal salary, vendor, retirement, and Social Security benefit payments. The terms “centralized administrative offset” and “centralized offset” refer to the process by which the Treasury Department's Financial Management Service offsets Federal payments through the Treasury Offset Program. *Administrative wage garnishment* means the process by which a Federal agency orders a non-Federal employer to withhold amounts from a debtor's wages to satisfy a debt, as authorized by 31 U.S.C. 3720D, 31 CFR 285.11, and this Part. *Agency* or *Federal agency* means a department, agency, court, court administrative office, or instrumentality in the executive, judicial, or legislative branch of the Federal Government, including government corporations. *Commerce debt* means a debt owed to a Commerce entity by a person. *Commerce Department* means the United States Department of Commerce. *Commerce entity* means a component of the Commerce Department, including offices or bureaus. Commerce offices currently include the Office of the Secretary of Commerce, and the Office of Inspector General. Commerce bureaus currently include the Bureau of Industry and Security, the Economics and Statistics Administration (including the Bureau of Economic Analysis, and the Bureau of the Census), the Economic Development Administration, the International Trade Administration, the Minority Business Development Agency, the National Oceanic and Atmospheric Administration, the National Telecommunications and Information Administration, the U.S. Patent and Trademark Office, and the Technology Administration (including the National Institute of Standards and Technology, and the National Technical Information Service). *Creditor* agency means any Federal agency that is owed a debt. *Day* means calendar day except when express reference is made to business day, which reference shall mean Monday through Friday. For purposes of time computation, the last day of the period provided will be included in the calculation unless that day is a Saturday, a Sunday, or a Federal legal holiday; in which case, the next business day will be included. *Debt* means any amount of money, funds or property that has been determined by an appropriate official of the Federal Government to be owed to the United States by a person. As used in this Part, the term “debt” can include a Commerce debt but does not include debts arising under the Internal Revenue Code of 1986 (26 U.S.C. 1 *et seq.* ). *Debtor* means a person who owes a debt to the United States. *Delinquent debt* means a debt that has not been paid by the date specified in the agency's initial written demand for payment or applicable agreement or instrument (including a post-delinquency payment agreement) unless other satisfactory payment arrangements have been made. *Delinquent Commerce debt* means a delinquent debt owed to a Commerce entity. *Disposable pay* has the same meaning as that term is defined in 5 CFR 550.1103. *Employee* or *Federal employee* means a current employee of the Commerce Department or other Federal agency, including a current member of the uniformed services, including the Army, Navy, Air Force, Marine Corps, Coast Guard, Commissioned Corps of the National Oceanic and Atmospheric Administration, and Commissioned Corps of the Public Health Service, including the National Guard and the reserve forces of the uniformed services. *FCCS* means the Federal Claims Collection Standards, which were jointly published by the Departments of the Treasury and Justice and codified at 31 CFR Parts 900-904. *Financial Management Service* means the Financial Management Service, a bureau of the Treasury Department, which is responsible for the centralized collection of delinquent debts through the offset of Federal payments and other means. *Payment agency* or *Federal payment agency* means any Federal agency that transmits payment requests in the form of certified payment vouchers, or other similar forms, to a disbursing official for disbursement. The payment agency may be the agency that employs the debtor. In some cases, the Commerce Department may be both the creditor agency and payment agency. *Person* means an individual, corporation, partnership, association, organization, State or local government or any other type of entity other than a Federal agency. *Salary offset* means a type of administrative offset to collect a debt under 5 CFR 5514 by deductions(s) at one or more officially established pay intervals from the current pay account of an employee without his or her consent. *Secretary* means the Secretary of Commerce. *Tax refund offset* is defined in 31 CFR 285.2(a). § 19.2 Why has the Commerce Department issuing these regulations and what do they cover?
(a)*Scope.* This Part provides procedures for the collection of Commerce debts. This Part also provides procedures for collection of other debts owed to the United States when a request for offset of a payment for which Commerce is the payment agency is received by the Commerce Department from another agency (for example, when a Commerce Department employee owes a debt to the United States Department of Education).
(b)*Applicability.*
(1)This Part applies to the Commerce Department when collecting a Commerce debt, to persons who owe Commerce debts, to persons controlled by or controlling persons who owe Federal agency debts, and to Federal agencies requesting offset of a payment issued by the Commerce Department as a payment agency (including salary payments to Commerce Department employees).
(2)This Part does not apply to tax debts nor to any debt for which there is an indication of fraud or misrepresentation, as described in § 900.3 of the FCCS, unless the debt is returned by the Department of Justice to the Commerce Department for handling.
(3)Nothing in this Part precludes collection or disposition of any debt under statutes and regulations other than those described in this Part. See, for example, 5 U.S.C. 5705, Advancements and Deductions, which authorizes Commerce entities to recover travel advances by offset of up to 100% of a Federal employee's accrued pay. See, also, 5 U.S.C. 4108, governing the collection of training expenses. To the extent that the provisions of laws, other regulations, and Commerce Department enforcement policies differ from the provisions of this Part, those provisions of law, other regulations, and Commerce Department enforcement policies apply to the remission or mitigation of fines, penalties, and forfeitures, and to debts arising under the tariff laws of the United States, rather than the provisions of this Part.
(c)*Additional policies and procedures.* Commerce entities may, but are not required to, promulgate additional policies and procedures consistent with this Part, the FCCS, and other applicable Federal law, policies, and procedures, subject to the approval of Deputy Chief Financial Officer.
(d)*Duplication not required.* Nothing in this Part requires a Commerce entity to duplicate notices or administrative proceedings required by contract, this Part, or other laws or regulations, including but not limited to those required by financial assistance awards such as grants, cooperative agreements, loans or loan guarantees.
(e)*Use of multiple collection remedies allowed.* Commerce entities and other Federal agencies may simultaneously use multiple collection remedies to collect a debt, except as prohibited by law. This Part is intended to promote aggressive debt collection, using for each debt all available and appropriate collection remedies. These remedies are not listed in any prescribed order to provide Commerce entities with flexibility in determining which remedies will be most efficient in collecting the particular debt.
(f)All citations in this Part, such as to statutes, regulations and the Department of Commerce Credit and Debt Management Operating Procedures Handbook, are intended to be references to cited sources as each currently stands and as each may be amended from time to time. § 19.3 Do these regulations adopt the Federal Claims Collection Standards (FCCS)? This Part adopts and incorporates all provisions of the FCCS. This Part also supplements the FCCS by prescribing procedures consistent with the FCCS, as necessary and appropriate for Commerce Department operations. Subpart B—Procedures to Collect Commerce Debts § 19.4 What notice will Commerce entities send to a debtor when collecting a Commerce debt?
(a)*Notice requirements.* Commerce entities shall aggressively collect Commerce debts. Commerce entities shall promptly send at least one written notice to a debtor informing the debtor of the consequences of failing to pay or otherwise resolve a Commerce debt. The notice(s) shall be sent to the debtor at the most current address of the debtor in the records of the Commerce entity collecting the Commerce debt. Generally, before starting the collection actions described in §§ 19.5 and 19.9 through 19.17 of this Part, Commerce entities will send no more than two written notices to the debtor. The notice(s) explain why the Commerce debt is owed, the amount of the Commerce debt, how a debtor may pay the Commerce debt or make alternate repayment arrangements, how a debtor may review non-privileged documents related to the Commerce debt, how a debtor may dispute the Commerce debt, the collection remedies available to Commerce entities if the debtor refuses or otherwise fails to pay the Commerce debt, and other consequences to the debtor if the Commerce debt is not paid. Except as otherwise provided in paragraph
(b)of this section, the written notice(s) shall explain to the debtor:
(1)The nature and amount of the Commerce debt, and the facts giving rise to the Commerce debt;
(2)How interest, penalties, and administrative costs are added to the Commerce debt, the date by which payment should be made to avoid such charges, and that such assessments must be made unless excused in accordance with 31 CFR 901.9 (see § 19.5 of this Part);
(3)The date by which payment should be made to avoid the enforced collection actions described in paragraph (a)(6) of this section;
(4)The Commerce entity's willingness to discuss alternative payment arrangements and how the debtor may enter into a written agreement to repay the Commerce debt under terms acceptable to the Commerce entity (see § 19.6 of this Part);
(5)The name, address, and telephone number of a contact person or office within the Commerce entity;
(6)The Commerce entity's intention to enforce collection by taking one or more of the following actions if the debtor fails to pay or otherwise resolve the Commerce debt:
(i)*Offset* . Offset the debtor's Federal payments, including income tax refunds, salary, certain benefit payments (such as Social Security), retirement, vendor, travel reimbursements and advances, and other Federal payments (see §§ 19.10 through 19.12 of this Part);
(ii)*Private collection agency.* Refer the Commerce debt to a private collection agency (see § 19.15 of this Part);
(iii)*Credit bureau reporting* . Report the Commerce debt to a credit bureau (see § 19.14 of this Part);
(iv)*Administrative wage garnishment.* Garnish the individual debtor's wages through administrative wage garnishment (see § 19.13 of this Part);
(v)*Litigation.* Refer the Commerce debt to the Department of Justice to initiate litigation to collect the Commerce debt (see § 19.16 of this Part);
(vi)*Treasury Department's Financial Management Service.* Refer the Commerce debt to the Financial Management Service for collection (see § 19.9 of this Part);
(7)That Commerce debts over 180 days delinquent must be referred to the Financial Management Service for the collection actions described in paragraph (a)(6) of this section (see § 19.9 of this Part);
(8)How the debtor may inspect and copy non-privileged records related to the Commerce debt;
(9)How the debtor may request a review of the Commerce entity's determination that the debtor owes a Commerce debt and present evidence that the Commerce debt is not delinquent or legally enforceable (see §§ 19.10(c) and 19.11(c) of this Part);
(10)How a debtor who is an individual may request a hearing if the Commerce entity intends to garnish the debtor's private sector (i.e., non-Federal) wages (see § 19.13(a) of this Part), including:
(i)The method and time period for requesting a hearing;
(ii)That a request for a hearing, timely filed on or before the 15th business day following the date of the mailing of the notice, will stay the commencement of administrative wage garnishment, but not other collection procedures; and
(iii)The name and address of the office to which the request for a hearing should be sent.
(11)How a debtor who is an individual and a Federal employee subject to Federal salary offset may request a hearing (see § 19.12(e) of this Part), including:
(i)The method and time period for requesting a hearing;
(ii)That a request for a hearing, timely filed on or before the 15th day following receipt of the notice, will stay the commencement of salary offset, but not other collection procedures;
(iii)The name and address of the office to which the request for a hearing should be sent;
(iv)That the Commerce entity will refer the Commerce debt to the debtor's employing agency or to the Financial Management Service to implement salary offset, unless the employee files a timely request for a hearing;
(v)That a final decision on the hearing, if requested, will be issued at the earliest practical date, but not later than 60 days after the filing of the request for a hearing, unless the employee requests and the hearing official grants a delay in the proceedings;
(vi)That any knowingly false or frivolous statements, representations, or evidence may subject the Federal employee to penalties under the False Claims Act (31 U.S.C. 3729-3731) or other applicable statutory authority, and criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002, or other applicable statutory authority;
(vii)That unless prohibited by contract or statute, amounts paid on or deducted for the Commerce debt which are later waived or found not owed to the United States will be promptly refunded to the employee; and
(viii)That proceedings with respect to such Commerce debt are governed by 5 U.S.C. 5514 and 31 U.S.C. 3716.
(12)How the debtor may request a waiver of the Commerce debt, if applicable. See, for example, § 19.5 and § 19.12(f) of this Part.
(13)How the debtor's spouse may claim his or her share of a joint income tax refund by filing Form 8379 with the Internal Revenue Service (see *http://www.irs.gov* );
(14)How the debtor may exercise other rights and remedies, if any, available to the debtor under programmatic statutory or regulatory authority under which the Commerce debt arose.
(15)That certain debtors and, if applicable, persons controlled by or controlling such debtors, may be ineligible for Federal Government loans, guaranties and insurance, grants, cooperative agreements or other sources of Federal funds (see 28 U.S.C. 3201(e); 31 U.S.C. 3720B, 31 CFR 285.13, and § 19.17(a) of this Part);
(16)If applicable, the Commerce entity's intention to deny, suspend or revoke licenses, permits or privileges (see § 19.17(b) of this Part); and
(17)That the debtor should advise the Commerce entity of a bankruptcy proceeding of the debtor or another person liable for the Commerce debt being collected.
(b)*Exceptions to notice requirements.* A Commerce entity may omit from a notice to a debtor one or more of the provisions contained in paragraphs (a)(6) through (a)(17) of this section if the Commerce entity, in consultation with its legal counsel, determines that any provision is not legally required given the collection remedies to be applied to a particular Commerce debt.
(c)*Respond to debtors; comply with FCCS.* Commerce entities should respond promptly to communications from debtors and comply with other FCCS provisions applicable to the administrative collection of debts. See 31 CFR part 901. § 19.5 How will Commerce entities add interest, penalty charges, and administrative costs to a Commerce debt?
(a)*Assessment and notice.* Commerce entities shall assess interest, penalties and administrative costs on Commerce debts in accordance with the provisions of 31 U.S.C. 3717 and 31 CFR 901.9. Interest shall be charged in accordance with the requirements of 31 U.S.C. 3717(a). Penalties shall accrue at a rate of not more than 6% per year or such other higher rate as authorized by law. Administrative costs, that is, the costs of processing and handling a delinquent debt, shall be determined by the Commerce entity collecting the debt, as directed by the Office of the Deputy Chief Financial Officer. Commerce entities may have additional policies regarding how interest, penalties, and administrative costs are assessed on particular types of debts, subject to the approval of the Deputy Chief Financial Officer. Commerce entities are required to explain in the notice to the debtor described in § 19.4 of this Part how interest, penalties, costs, and other charges are assessed, unless the requirements are included in a contract or other legally binding agreement.
(b)*Waiver of interest, penalties, and administrative costs.* Unless otherwise required by law or contract, Commerce entities may not charge interest if the amount due on the Commerce debt is paid within 30 days after the date from which the interest accrues. See 31 U.S.C. 3717(d). Commerce entities may waive interest, penalties, and administrative costs, or any portion thereof, when it would be against equity and good conscience or not in the United States' best interest to collect such charges, in accordance with Commerce guidelines for such waivers. Legal counsel approval to waive such charges is required. See Department of Commerce Credit and Debt Management Operating Standards and Procedures Handbook (currently at *http://www.osec.doc.gov/ofm/credit/cover.htm).*
(c)*Accrual during suspension of debt collection.* In most cases, interest, penalties and administrative costs will continue to accrue during any period when collection has been suspended for any reason (for example, when the debtor has requested a hearing). Commerce entities may suspend accrual of any or all of these charges when accrual would be against equity and good conscience or not in the United States' best interest, in accordance with Commerce guidelines for such waivers. See Department of Commerce Credit and Debt Management Operating Standards and Procedures Handbook (currently at *http://www.osec.doc.gov/ofm/credit/cover.htm* ). § 19.6 When will Commerce entities allow a debtor to pay a Commerce debt in installments instead of one lump sum? If a debtor is financially unable to pay the Commerce debt in one lump sum, a Commerce entity may accept payment of a Commerce debt in regular installments, in accordance with the provisions of 31 CFR 901.8 and the Commerce entity's policies and procedures. § 19.7 When will Commerce entities compromise a Commerce debt? If a Commerce entity cannot collect the full amount of a Commerce debt, the Commerce entity may compromise the Commerce debt in accordance with the provisions of 31 CFR part 902 and the Commerce entity's policies and procedures. Legal counsel approval to compromise a Commerce debt is required as described in Department of Commerce Credit and Debt Management Operating Standards and Procedures Handbook (currently at *http://www.osec.doc.gov/ofm/credit/cover.htm* ). § 19.8 When will Commerce entities suspend or terminate debt collection on a Commerce debt? If, after pursuing all appropriate means of collection, a Commerce entity determines that a Commerce debt is uncollectible, the Commerce entity may suspend or terminate debt collection activity in accordance with the provisions of 31 CFR part 903 and the Commerce entity's policies and procedures. Legal counsel approval to suspend or terminate collection on a Commerce debt is required as described in Department of Commerce Credit and Debt Management Operating Standards and Procedures Handbook (currently at *http://www.osec.doc.gov/ofm/credit/cover.htm* ). Termination of debt collection activity by a Commerce entity does not discharge the indebtedness. § 19.9 When will Commerce entities transfer a Commerce debt to the Treasury Department's Financial Management Service for collection?
(a)Commerce entities will transfer any Commerce debt that is more than 180 days delinquent to the Financial Management Service for debt collection services, a process known as “cross-servicing.” See 31 U.S.C. 3711(g) and 31 CFR 285.12. Commerce entities may transfer Commerce debts delinquent 180 days or less to the Financial Management Service in accordance with the procedures described in 31 CFR 285.12. The Financial Management Service takes appropriate action to collect or compromise the transferred Commerce debt, or to suspend or terminate collection action thereon, in accordance with the statutory and regulatory requirements and authorities applicable to the Commerce debt and the collection action to be taken. See 31 CFR 285.12(b) and 285.12(c)(2). Appropriate action can include, but is not limited to, contact with the debtor, referral of the Commerce debt to the Treasury Offset Program, private collection agencies or the Department of Justice, reporting of the Commerce debt to credit bureaus, and administrative wage garnishment.
(b)At least sixty
(60)days prior to transferring a Commerce debt to the Financial Management Service, Commerce entities will send notice to the debtor as required by § 19.4 of this Part. Commerce entities will certify to the Financial Management Service, in writing, that the Commerce debt is valid, delinquent, legally enforceable, and that there are no legal bars to collection. In addition, Commerce entities will certify their compliance with all applicable due process and other requirements as described in this Part and other Federal laws. See 31 CFR 285.12(i) regarding the certification requirement.
(c)As part of its debt collection process, the Financial Management Service uses the Treasury Offset Program to collect Commerce debts by administrative and tax refund offset. See 31 CFR 285.12(g). The Treasury Offset Program is a centralized offset program administered by the Financial Management Service to collect delinquent debts owed to Federal agencies and states (including past-due child support). Under the Treasury Offset Program, before a Federal payment is disbursed, the Financial Management Service compares the name and taxpayer identification number
(TIN)of the payee with the names and TINs of debtors that have been submitted by Federal agencies and states to the Treasury Offset Program database. If there is a match, the Financial Management Service (or, in some cases, another Federal disbursing agency) offsets all or a portion of the Federal payment, disburses any remaining payment to the payee, and pays the offset amount to the creditor agency. Federal payments eligible for offset include, but are not limited to, income tax refunds, salary, travel advances and reimbursements, retirement and vendor payments, and Social Security and other benefit payments. § 19.10 How will Commerce entities use administrative offset (offset of non-tax Federal payments) to collect a Commerce debt?
(a)*Centralized administrative offset through the Treasury Offset Program.*
(1)In most cases, the Financial Management Service uses the Treasury Offset Program to collect Commerce debts by the offset of Federal payments. See § 19.9(c) of this Part. If not already transferred to the Financial Management Service under § 19.9 of this Part, Commerce entities will refer Commerce debt over 180 days delinquent to the Treasury Offset Program for collection by centralized administrative offset. See 31 U.S.C. 3716(c)(6); 31 CFR part 285, subpart A; and 31 CFR 901.3(b). Commerce entities may refer to the Treasury Offset Program for offset any Commerce debt that has been delinquent for 180 days or less.
(2)At least sixty
(60)days prior to referring a Commerce debt to the Treasury Offset Program, in accordance with paragraph (a)(1) of this section, Commerce entities will send notice to the debtor in accordance with the requirements of § 19.4 of this Part. Commerce entities will certify to the Financial Management Service, in writing, that the Commerce debt is valid, delinquent, legally enforceable, and that there are no legal bars to collection by offset. In addition, Commerce entities will certify their compliance with the requirements described in this Part.
(b)*Non-centralized administrative offset for Commerce debts.*
(1)When centralized administrative offset through the Treasury Offset Program is not available or appropriate, Commerce entities may collect past-due, legally enforceable Commerce debts through non-centralized administrative offset. See 31 CFR 901.3(c). In these cases, Commerce entities may offset a payment internally or make an offset request directly to a Federal payment agency. If the Federal payment agency is another Commerce entity, the Commerce entity making the request shall do so through the Deputy Chief Financial Officer as described in § 19.20(c) of this Part.
(2)At least thirty
(30)days prior to offsetting a payment internally or requesting a Federal payment agency to offset a payment, Commerce entities will send notice to the debtor in accordance with the requirements of § 19.4 of this Part. When referring a Commerce debt for offset under this paragraph (b), Commerce entities making the request will certify, in writing, that the Commerce debt is valid, delinquent, legally enforceable, and that there are no legal bars to collection by offset. In addition, Commerce entities will certify their compliance with these regulations concerning administrative offset. See 31 CFR 901.3(c)(2)(ii).
(c)*Administrative review.* The notice described in § 19.4 of this Part shall explain to the debtor how to request an administrative review of a Commerce entity's determination that the debtor owes a Commerce debt and how to present evidence that the Commerce debt is not delinquent or legally enforceable. In addition to challenging the existence and amount of the Commerce debt, the debtor may seek a review of the terms of repayment. In most cases, Commerce entities will provide the debtor with a “paper hearing” based upon a review of the written record, including documentation provided by the debtor. Commerce entities shall provide the debtor with a reasonable opportunity for an oral hearing when the debtor requests reconsideration of the Commerce debt and the Commerce entity determines that the question of the indebtedness cannot be resolved by review of the documentary evidence, for example, when the validity of the Commerce debt turns on an issue of credibility or veracity. Unless otherwise required by law, an oral hearing under this section is not required to be a formal evidentiary hearing, although Commerce entities should carefully document all significant matters discussed at the hearing. Commerce entities may suspend collection through administrative offset and/or other collection actions pending the resolution of a debtor's dispute.
(d)*Procedures for expedited offset.* Under the circumstances described in 31 CFR 901.3(b)(4)(iii), Commerce entities may effect an offset against a payment to be made to the debtor prior to sending a notice to the debtor, as described in § 19.4 of this Part, or completing the procedures described in paragraph (b)(2) and
(c)of this section. Commerce entities shall give the debtor notice and an opportunity for review as soon as practicable and promptly refund any money ultimately found not to have been owed to the Government. Legal counsel approval to effect such pre-notice offset is required as described in Department of Commerce Credit and Debt Management Operating Standards and Procedures Handbook (currently at *http://www.osec.doc.gov/ofm/credit/cover.htm* ). § 19.11 How will Commerce entities use tax refund offset to collect a Commerce debt?
(a)*Tax refund offset.* In most cases, the Financial Management Service uses the Treasury Offset Program to collect Commerce debts by the offset of tax refunds and other Federal payments. See § 19.9(c) of this Part. If not already transferred to the Financial Management Service under § 19.9 of this Part, Commerce entities will refer to the Treasury Offset Program any past-due, legally enforceable Commerce debt for collection by tax refund offset. See 26 U.S.C. 6402(d), 31 U.S.C. 3720A and 31 CFR 285.2.
(b)*Notice.* At least sixty
(60)days prior to referring a Commerce debt to the Treasury Offset Program, Commerce entities will send notice to the debtor in accordance with the requirements of § 19.4 of this Part. Commerce entities will certify to the Financial Management Service's Treasury Offset Program, in writing, that the Commerce debt is past due and legally enforceable in the amount submitted and that the Commerce entities have made reasonable efforts to obtain payment of the Commerce debt as described in 31 CFR 285.2(d). In addition, Commerce entities will certify their compliance with all applicable due process and other requirements described in this Part and other Federal laws. See 31 U.S.C. 3720A(b) and 31 CFR 285.2.
(c)*Administrative review.* The notice described in § 19.4 of this Part shall provide the debtor with at least 60 days prior to the initiation of tax refund offset to request an administrative review as described in § 19.10(c) of this Part. Commerce entities may suspend collection through tax refund offset and/or other collection actions pending the resolution of the debtor's dispute. § 19.12 How will Commerce entities offset a Federal employee's salary to collect a Commerce debt?
(a)*Federal salary offset.*
(1)Salary offset is used to collect debts owed to the United States by Commerce Department and other Federal employees. If a Federal employee owes a Commerce debt, Commerce entities may offset the employee's Federal salary to collect the Commerce debt in the manner described in this section. For information on how a Federal agency other than a Commerce entity may collect debt from the salary of a Commerce Department employee, see §§ 19.20 and 19.21, subpart C, of this Part.
(2)Nothing in this Part requires a Commerce entity to collect a Commerce debt in accordance with the provisions of this section if Federal law allows otherwise. See, for example, 5 U.S.C. 5705 (travel advances not used for allowable travel expenses are recoverable from the employee or his estate by setoff against accrued pay and other means) and 5 U.S.C. 4108 (recovery of training expenses).
(3)Commerce entities may use the administrative wage garnishment procedure described in § 19.13 of this Part to collect a Commerce debt from an individual's non-Federal wages.
(b)*Centralized salary offset through the Treasury Offset Program.* As described in § 19.9(a) of this Part, Commerce entities will refer Commerce debts to the Financial Management Service for collection by administrative offset, including salary offset, through the Treasury Offset Program. When possible, Commerce entities should attempt salary offset through the Treasury Offset Program before applying the procedures in paragraph
(c)of this section. See 5 CFR 550.1108 and 550.1109.
(c)*Non-centralized salary offset for Commerce debts.* When centralized salary offset through the Treasury Offset Program is not available or appropriate, Commerce entities may collect delinquent Commerce debts through non-centralized salary offset. See 5 CFR 550.1109. In these cases, Commerce entities may offset a payment internally or make a request directly to a Federal payment agency to offset a salary payment to collect a delinquent Commerce debt owed by a Federal employee. If the Federal payment agency is another Commerce entity, the Commerce entity making the request shall do so through the Deputy Chief Financial Officer as described in § 19.20(c) of this Part. At least thirty
(30)days prior to offsetting internally or requesting a Federal agency to offset a salary payment, Commerce entities will send notice to the debtor in accordance with the requirements of § 19.4 of this Part. When referring a Commerce debt for offset, Commerce entities will certify to the payment agency, in writing, that the Commerce debt is valid, delinquent and legally enforceable in the amount stated, and there are no legal bars to collection by salary offset. In addition, Commerce entities will certify that all due process and other prerequisites to salary offset have been met. See 5 U.S.C. 5514, 31 U.S.C. 3716(a), and this section for a description of the due process and other prerequisites for salary offset.
(d)*When prior notice not required.* Commerce entities are not required to provide prior notice to an employee when the following adjustments are made by a Commerce entity to a Commerce employee's pay:
(1)Any adjustment to pay arising out of any employee's election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay, if the amount to be recovered was accumulated over four pay periods or less;
(2)A routine intra-agency adjustment of pay that is made to correct an overpayment of pay attributable to clerical or administrative errors or delays in processing pay documents, if the overpayment occurred within the four pay periods preceding the adjustment, and, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and point of contact for contesting such adjustment; or
(3)Any adjustment to collect a Commerce debt amounting to $50 or less, if, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and a point of contact for contesting such adjustment.
(e)*Hearing procedures* —(1) *Request for a hearing.* A Federal employee who has received a notice that his or her Commerce debt will be collected by means of salary offset may request a hearing concerning the existence or amount of the Commerce debt. The Federal employee also may request a hearing concerning the amount proposed to be deducted from the employee's pay each pay period. The employee must send any request for hearing, in writing, to the office designated in the notice described in § 19.4. See § 19.4(a)(11). The request must be received by the designated office on or before the 15th day following the employee's receipt of the notice. The employee must sign the request and specify whether an oral or paper hearing is requested. If an oral hearing is requested, the employee must explain why the matter cannot be resolved by review of the documentary evidence alone. All travel expenses incurred by the Federal employee in connection with an in-person hearing will be borne by the employee. See 31 CFR 901.3(a)(7).
(2)*Failure to submit timely request for hearing.* If the employee fails to submit a request for hearing within the time period described in paragraph (e)(1) of this section, the employee will have waived the right to a hearing, and salary offset may be initiated. However, Commerce entities should accept a late request for hearing if the employee can show that the late request was the result of circumstances beyond the employee's control or because of a failure to receive actual notice of the filing deadline.
(3)*Hearing official.* Commerce entities must obtain the services of a hearing official who is not under the supervision or control of the Secretary. Commerce entities may contact the Deputy Chief Financial Officer as described in § 19.20(c) of this Part or an agent of any Commerce agency designated in Appendix A to 5 CFR part 581 (List of Agents Designated to Accept Legal Process) to request a hearing official.
(4)*Notice of hearing.* After the employee requests a hearing, the designated hearing official shall inform the employee of the form of the hearing to be provided. For oral hearings, the notice shall set forth the date, time and location of the hearing. For paper hearings, the notice shall notify the employee of the date by which he or she should submit written arguments to the designated hearing official. The hearing official shall give the employee reasonable time to submit documentation in support of the employee's position. The hearing official shall schedule a new hearing date if requested by both parties. The hearing official shall give both parties reasonable notice of the time and place of a rescheduled hearing.
(5)*Oral hearing.* The hearing official will conduct an oral hearing if he or she determines that the matter cannot be resolved by review of documentary evidence alone (for example, when an issue of credibility or veracity is involved). The hearing need not take the form of an evidentiary hearing, but may be conducted in a manner determined by the hearing official, including but not limited to:
(i)Informal conferences with the hearing official, in which the employee and agency representative will be given full opportunity to present evidence, witnesses and argument;
(ii)Informal meetings with an interview of the employee by the hearing official; or
(iii)Formal written submissions, with an opportunity for oral presentation.
(6)*Paper hearing.* If the hearing official determines that an oral hearing is not necessary, he or she will make the determination based upon a review of the available written record, including any documentation submitted by the employee in support of his or her position. See 31 CFR 901.3(a)(7).
(7)*Failure to appear or submit documentary evidence.* In the absence of good cause shown (for example, excused illness), if the employee fails to appear at an oral hearing or fails to submit documentary evidence as required for a paper hearing, the employee will have waived the right to a hearing, and salary offset may be initiated. Further, the employee will have been deemed to admit the existence and amount of the Commerce debt as described in the notice of intent to offset. If the Commerce entity representative fails to appear at an oral hearing, the hearing official shall proceed with the hearing as scheduled, and make his or her determination based upon the oral testimony presented and the documentary evidence submitted by both parties.
(8)*Burden of proof.* Commerce entities will have the initial burden to prove the existence and amount of the Commerce debt. Thereafter, if the employee disputes the existence or amount of the Commerce debt, the employee must prove by a preponderance of the evidence that no such Commerce debt exists or that the amount of the Commerce debt is incorrect. In addition, the employee may present evidence that the proposed terms of the repayment schedule are unlawful, would cause a financial hardship to the employee, or that collection of the Commerce debt may not be pursued due to operation of law.
(9)*Record.* The hearing official shall maintain a summary record of any hearing provided by this Part. Witnesses will testify under oath or affirmation in oral hearings. See 31 CFR 901.3(a)(7).
(10)*Date of decision.* The hearing official shall issue a written opinion stating his or her decision, based upon documentary evidence and information developed at the hearing, as soon as practicable after the hearing, but not later than 60 days after the date on which the request for hearing was received by the Commerce entity. If the employee requests a delay in the proceedings, the deadline for the decision may be postponed by the number of days by which the hearing was postponed. When a decision is not timely rendered, the Commerce entity shall waive interest and penalties applied to the Commerce debt for the period beginning with the date the decision is due and ending on the date the decision is issued.
(11)*Content of decision.* The written decision shall include:
(i)A statement of the facts presented to support the origin, nature, and amount of the Commerce debt;
(ii)The hearing official's findings, analysis, and conclusions; and
(iii)The terms of any repayment schedules, if applicable.
(12)*Final agency action.* The hearing official's decision shall be final.
(f)*Waiver not precluded.* Nothing in this Part precludes an employee from requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, 32 U.S.C. 716, or other statutory authority. Commerce entities may grant such waivers when it would be against equity and good conscience or not in the United States' best interest to collect such Commerce debts, in accordance with those authorities, 5 CFR 550.1102(b)(2), and Commerce policies and procedures. See Department of Commerce Credit and Debt Management Operating Standards and Procedures Handbook (currently at *http://www.osec.doc.gov/ofm/credit/cover.htm* ).
(g)*Salary offset process* —(1) *Determination of disposable pay.* The Deputy Chief Financial Officer will consult with the appropriate Commerce entity payroll office to determine the amount of a Commerce Department employee's disposable pay (as defined in § 19.1 of this Part) and will implement salary offset when requested to do so by a Commerce entity, as described in paragraph
(c)of this section, or another agency, as described in § 19.20 of this Part. If the debtor is not employed by the Commerce Department, the agency employing the debtor will determine the amount of the employee's disposable pay and will implement salary offset upon request.
(2)*When salary offset begins.* Deductions shall begin within three official pay periods following receipt of the creditor agency's request for offset.
(3)*Amount of salary offset.* The amount to be offset from each salary payment will be up to 15 percent of a debtor's disposable pay, as follows:
(i)If the amount of the Commerce debt is equal to or less than 15 percent of the disposable pay, such Commerce debt generally will be collected in one lump sum payment;
(ii)Installment deductions will be made over a period of no greater than the anticipated period of employment. An installment deduction will not exceed 15 percent of the disposable pay from which the deduction is made unless the employee has agreed in writing to the deduction of a greater amount or the creditor agency has determined that smaller deductions are appropriate based on the employee's ability to pay.
(4)*Final salary payment.* After the employee has separated either voluntarily or involuntarily from the payment agency, the payment agency may make a lump sum deduction exceeding 15 percent of disposable pay from any final salary or other payments pursuant to 31 U.S.C. 3716 in order to satisfy a Commerce debt.
(h)*Payment agency's responsibilities.*
(1)As required by 5 CFR 550.1109, if the employee separates from the payment agency from which a Commerce entity has requested salary offset, the payment agency must certify the total amount of its collection and notify the Commerce entity and the employee of the amounts collected. If the payment agency is aware that the employee is entitled to payments from the Civil Service Retirement Fund and Disability Fund, the Federal Employee Retirement System, or other similar payments, it must provide written notification to the payment agency responsible for making such payments that the debtor owes a Commerce debt, the amount of the Commerce debt, and that the Commerce entity has complied with the provisions of this section. Commerce entities must submit a properly certified claim to the new payment agency before the collection can be made.
(2)If the employee is already separated from employment and all payments due from his or her former payment agency have been made, Commerce entities may request that money due and payable to the employee from the Civil Service Retirement Fund and Disability Fund, the Federal Employee Retirement System, or other similar funds, be administratively offset to collect the Commerce debt. Generally, Commerce entities will collect such monies through the Treasury Offset Program as described in § 19.9(c) of this Part.
(3)When an employee transfers to another agency, Commerce entities should resume collection with the employee's new payment agency in order to continue salary offset. § 19.13 How will Commerce entities use administrative wage garnishment to collect a Commerce debt from a debtor's wages?
(a)Commerce entities are authorized to collect Commerce debts from an individual debtor's wages by means of administrative wage garnishment in accordance with the requirements of 31 U.S.C. 3720D and 31 CFR 285.11. This Part adopts and incorporates all of the provisions of 31 CFR 285.11 concerning administrative wage garnishment, including the hearing procedures described in 31 CFR 285.11(f). Commerce entities may use administrative wage garnishment to collect a delinquent Commerce debt unless the debtor is making timely payments under an agreement to pay the Commerce debt in installments (see § 19.6 of this Part). At least thirty
(30)days prior to initiating an administrative wage garnishment, Commerce entities will send notice to the debtor in accordance with the requirements of § 19.4 of this Part, including the requirements of § 19.4(a)(10) of this Part. For Commerce debts referred to the Financial Management Service under § 19.9 of this Part, Commerce entities may authorize the Financial Management Service to send a notice informing the debtor that administrative wage garnishment will be initiated and how the debtor may request a hearing as described in § 19.4(a)(10) of this Part. If a debtor makes a timely request for a hearing, administrative wage garnishment will not begin until a hearing is held and a decision is sent to the debtor. See 31 CFR 285.11(f)(4). Even if a debtor's hearing request is not timely, Commerce entities may suspend collection by administrative wage garnishment in accordance with the provisions of 31 CFR 285.11(f)(5). All travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor.
(b)This section does not apply to Federal salary offset, the process by which Commerce entities collect Commerce debts from the salaries of Federal employees (see § 19.12 of this Part). § 19.14 How will Commerce entities report Commerce debts to credit bureaus? Commerce entities shall report delinquent Commerce debts to credit bureaus in accordance with the provisions of 31 U.S.C. 3711(e), 31 CFR 901.4, and the Office of Management and Budget Circular A-129, “Policies for Federal Credit Programs and Non-tax Receivables.” For additional information, see Financial Management Service's “Guide to the Federal Credit Bureau Program,” which currently may be found at *http://www.fms.treas.gov/debt.* At least sixty
(60)days prior to reporting a delinquent Commerce debt to a consumer reporting agency, Commerce entities will send notice to the debtor in accordance with the requirements of § 19.4 of this Part. Commerce entities may authorize the Financial Management Service to report to credit bureaus those delinquent Commerce debts that have been transferred to the Financial Management Service under § 19.9 of this Part. § 19.15 How will Commerce entities refer Commerce debts to private collection agencies? Commerce entities will transfer delinquent Commerce debts to the Financial Management Service to obtain debt collection services provided by private collection agencies. See § 19.9 of this Part. § 19.16 When will Commerce entities refer Commerce debts to the Department of Justice?
(a)*Compromise or suspension or termination of collection activity.* Commerce entities shall refer Commerce debts having a principal balance over $100,000, or such higher amount as authorized by the Attorney General, to the Department of Justice for approval of any compromise of a Commerce debt or suspension or termination of collection activity. See § § 19.7 and 19.8 of this Part; 31 CFR 902.1; 31 CFR 903.1.
(b)*Litigation.* Commerce entities shall promptly refer to the Department of Justice for litigation delinquent Commerce debts on which aggressive collection activity has been taken in accordance with this Part and that should not be compromised, and on which collection activity should not be suspended or terminated. See 31 CFR part 904. Commerce entities may authorize the Financial Management Service to refer to the Department of Justice for litigation those delinquent Commerce debts that have been transferred to the Financial Management Service under § 19.9 of this Part. § 19.17 Will a debtor who owes a Commerce or other Federal agency debt, and persons controlled by or controlling such debtors, be ineligible for Federal loan assistance, grants, cooperative agreements, or other sources of Federal funds or for Federal licenses, permits or privileges?
(a)Delinquent debtors are ineligible for and barred from obtaining Federal loans or loan insurance or guaranties. As required by 31 U.S.C. 3720B and 31 CFR 901.6, Commerce entities will not extend financial assistance in the form of a loan, loan guarantee, or loan insurance to any person delinquent on a debt owed to a Federal agency. The Commerce Department may issue standards under which the Commerce Department may determine that persons controlled by or controlling such delinquent debtors are similarly ineligible in accordance with 31 CFR 285.13(c)(2). This prohibition does not apply to disaster loans. Commerce entities may extend credit after the delinquency has been resolved. See 31 CFR 285.13. Waivers of ineligibility may be granted by the Secretary or designee on a person by person basis in accordance with 31 CFR 285.13(g). However, such authority may not be delegated below the Deputy Chief Financial Officer.
(b)A debtor who has a judgment lien against the debtor's property for a debt to the United States is not eligible to receive grants, loans or funds directly or indirectly from the United States until the judgment is paid in full or otherwise satisfied. This prohibition does not apply to funds to which the debtor is entitled as beneficiary. The Commerce Department may promulgate regulations to allow for waivers of this ineligibility. See 28 U.S.C. 3201(e).
(c)Suspension or revocation of eligibility for licenses, permits, or privileges. Unless prohibited by law, Commerce entities with the authority to do so under the circumstances should deny, suspend or revoke licenses, permits, or other privileges for any inexcusable or willful failure of a debtor to pay a debt. The Commerce entity responsible for distributing the licenses, permits, or other privileges will establish policies and procedures governing suspension and revocation for delinquent debtors. If applicable, Commerce entities will advise the debtor in the notice required by § 19.4 of this Part of the Commerce entities' ability to deny, suspend or revoke licenses, permits or privileges. See § 19.4(a)(16) of this Part.
(d)To the extent that a person delinquent on a Commerce debt is not otherwise barred under § 19.17(a)(c) of this Part from becoming or remaining a recipient of a Commerce grant or cooperative agreement, it is Commerce policy that no award of Federal funds shall be made to a Commerce grant or cooperative agreement applicant who has an outstanding delinquent Commerce debt until:
(1)The delinquent Commerce debt is paid in full,
(2)A negotiated repayment schedule acceptable to Commerce is established and at least one payment is received, or
(3)Other arrangements satisfactory to Commerce are made. § 19.18 How does a debtor request a special review based on a change in circumstances such as catastrophic illness, divorce, death, or disability?
(a)*Material change in circumstances.* A debtor who owes a Commerce debt may, at any time, request a special review by the applicable Commerce entity of the amount of any offset, administrative wage garnishment, or voluntary payment, based on materially changed circumstances beyond the control of the debtor such as, but not limited to, catastrophic illness, divorce, death, or disability.
(b)*Inability to pay.* For purposes of this section, in determining whether an involuntary or voluntary payment would prevent the debtor from meeting essential subsistence expenses ( *e.g.* , costs incurred for food, housing, clothing, transportation, and medical care), the debtor shall submit a detailed statement and supporting documents for the debtor, his or her spouse, and dependents, indicating:
(1)Income from all sources;
(2)Assets;
(3)Liabilities;
(4)Number of dependents;
(5)Expenses for food, housing, clothing, and transportation;
(6)Medical expenses;
(7)Exceptional expenses, if any; and
(8)Any additional materials and information that the Commerce entity may request relating to ability or inability to pay the amount(s) currently required.
(c)*Alternative payment arrangement.* If the debtor requests a special review under this section, the debtor shall submit an alternative proposed payment schedule and a statement to the Commerce entity collecting the Commerce debt, with supporting documents, showing why the current offset, garnishment or repayment schedule imposes an extreme financial hardship on the debtor. The Commerce entity will evaluate the statement and documentation and determine whether the current offset, garnishment, or repayment schedule imposes extreme financial hardship on the debtor. The Commerce entity shall notify the debtor in writing of such determination, including, if appropriate, a revised offset, garnishment, or payment schedule. If the special review results in a revised offset, garnishment, or repayment schedule, the Commerce entity will notify the appropriate Federal agency or other persons about the new terms. § 19.19 Will Commerce entities issue a refund if money is erroneously collected on a Commerce debt? Commerce entities shall promptly refund to a debtor any amount collected on a Commerce debt when the Commerce debt is waived or otherwise found not to be owed to the United States, or as otherwise required by law. Refunds under this Part shall not bear interest unless required by law. Subpart C—Procedures for Offset of Commerce Department Payments To Collect Debts Owed to Other Federal Agencies § 19.20 How do other Federal agencies use the offset process to collect debts from payments issued by a Commerce entity?
(a)*Offset of Commerce entity payments to collect debts owed to other Federal agencies.*
(1)In most cases, Federal agencies submit debts to the Treasury Offset Program to collect delinquent debts from payments issued by Commerce entities and other Federal agencies, a process known as “centralized offset.” When centralized offset is not available or appropriate, any Federal agency may ask a Commerce entity (when acting as a “payment agency”) to collect a debt owed to such agency by offsetting funds payable to a debtor by the Commerce entity, including salary payments issued to Commerce entity employees. This section and § 19.21 of this subpart C apply when a Federal agency asks a Commerce entity to offset a payment issued by the Commerce entity to a person who owes a debt to the United States.
(2)This subpart C does not apply to Commerce debts. See § § 19.10 through 19.12 of this Part for offset procedures applicable to Commerce debts.
(3)This subpart C does not apply to the collection of non-Commerce debts through tax refund offset. See 31 CFR 285.2 for tax refund offset procedures.
(b)*Administrative offset (including salary offset); certification.* A Commerce entity will initiate a requested offset only upon receipt of written certification from the creditor agency that the debtor owes the past-due, legally enforceable debt in the amount stated, and that the creditor agency has fully complied with all applicable due process and other requirements contained in 31 U.S.C. 3716, 5 U.S.C. 5514, and the creditor agency's regulations, as applicable. Offsets will continue until the debt is paid in full or otherwise resolved to the satisfaction of the creditor agency.
(c)*Where a creditor agency makes requests for offset.* Requests for offset under this section shall be sent to the Department of Commerce, ATTN: Deputy Chief Financial Officer, 1401 Constitution Avenue, NW., Room 6827, Washington, DC 20230. The Deputy Chief Financial Officer will forward the request to the appropriate Commerce entity for processing in accordance with this subpart C.
(d)*Incomplete certification.* A Commerce entity will return an incomplete debt certification to the creditor agency with notice that the creditor agency must comply with paragraph
(b)of this section before action will be taken to collect a debt from a payment issued by a Commerce entity.
(e)*Review.* A Commerce entity is not authorized to review the merits of the creditor agency's determination with respect to the amount or validity of the debt certified by the creditor agency.
(f)*When Commerce entities will not comply with offset request.* A Commerce entity will comply with the offset request of another agency unless the Commerce entity determines that the offset would not be in the best interests of the United States, or would otherwise be contrary to law.
(g)*Multiple debts.* When two or more creditor agencies are seeking offsets from payments made to the same person, or when two or more debts are owed to a single creditor agency, the Commerce entity that has been asked to offset the payments may determine the order in which the debts will be collected or whether one or more debts should be collected by offset simultaneously.
(h)*Priority of debts owed to Commerce entity.* For purposes of this section, debts owed to a Commerce entity generally take precedence over debts owed to other agencies. The Commerce entity that has been asked to offset the payments may determine whether to pay debts owed to other agencies before paying a debt owed to a Commerce entity. The Commerce entity that has been asked to offset the payments will determine the order in which the debts will be collected based on the best interests of the United States. § 19.21 What does a Commerce entity do upon receipt of a request to offset the salary of a Commerce entity employee to collect a debt owed by the employee to another Federal agency?
(a)*Notice to the Commerce employee.* When a Commerce entity receives proper certification of a debt owed by one of its employees, the Commerce entity will begin deductions from the employee's pay at the next officially established pay interval. The Commerce entity will send a written notice to the employee indicating that a certified debt claim has been received from the creditor agency, the amount of the debt claimed to be owed by the creditor agency, the date deductions from salary will begin, and the amount of such deductions.
(b)*Amount of deductions from Commerce employee's salary.* The amount deducted under § 19.20(b) of this Part will be the lesser of the amount of the debt certified by the creditor agency or an amount up to 15% of the debtor's disposable pay. Deductions shall continue until the Commerce entity knows that the debt is paid in full or until otherwise instructed by the creditor agency. Alternatively, the amount offset may be an amount agreed upon, in writing, by the debtor and the creditor agency. See § 19.12(g) (salary offset process).
(c)*When the debtor is no longer employed by the Commerce entity.*
(1)*Offset of final and subsequent payments.* If a Commerce entity employee retires or resigns or if his or her employment ends before collection of the debt is complete, the Commerce entity will continue to offset, under 31 U.S.C. 3716, up to 100% of an employee's subsequent payments until the debt is paid or otherwise resolved. Such payments include a debtor's final salary payment, lump-sum leave payment, and other payments payable to the debtor by the Commerce entity. See 31 U.S.C. 3716 and 5 CFR 550.1104(l) and 550.1104(m).
(2)*Notice to the creditor agency.* If the employee is separated from the Commerce entity before the debt is paid in full, the Commerce entity will certify to the creditor agency the total amount of its collection. If the Commerce entity is aware that the employee is entitled to payments from the Civil Service Retirement and Disability Fund, Federal Employee Retirement System, or other similar payments, the Commerce entity will provide written notice to the agency making such payments that the debtor owes a debt (including the amount) and that the provisions of 5 CFR 550.1109 have been fully complied with. The creditor agency is responsible for submitting a certified claim to the agency responsible for making such payments before collection may begin. Generally, creditor agencies will collect such monies through the Treasury Offset Program as described in § 19.9(c) of this Part.
(3)*Notice to the debtor.* The Commerce entity will provide to the debtor a copy of any notices sent to the creditor agency under paragraph (c)(2) of this section.
(d)*When the debtor transfers to another Federal agency* —(1) *Notice to the creditor agency.* If the debtor transfers to another Federal agency before the debt is paid in full, the Commerce entity will notify the creditor agency and will certify the total amount of its collection on the debt. The Commerce entity will provide a copy of the certification to the creditor agency. The creditor agency is responsible for submitting a certified claim to the debtor's new employing agency before collection may begin.
(2)*Notice to the debtor.* The Commerce entity will provide to the debtor a copy of any notices and certifications sent to the creditor agency under paragraph (d)(1) of this section.
(e)*Request for hearing official.* A Commerce entity will provide a hearing official upon the creditor agency's request with respect to a Commerce entity employee. See 5 CFR 550.1107(a). PART 21—[REMOVED AND RESERVED] 2. Remove and reserve part 21. PART 22—[REMOVED AND RESERVED] 3. Remove and reserve part 22. Dated: April 5, 2007. Lisa Casias, Deputy Chief Financial Officer and Director for Financial Management, Department of Commerce. [FR Doc. E7-6699 Filed 4-13-07; 8:45 am] BILLING CODE 3510-FA-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 35 and 37 [Docket Nos. RM05-17-000 and RM05-25-000; Order No. 890] Preventing Undue Discrimination and Preference in Transmission Service Issued April 6, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Final Rule; Notice of Technical Conferences. SUMMARY: On February 16, 2007, the Federal Energy Regulatory Commission issued Order No. 890, which amended the regulations and the *pro forma* open access transmission tariff (OATT). The Commission's staff is convening technical conferences to review and discuss the “strawman” proposals regarding the processes for transmission planning required by the Final Rule. DATES: Conference dates: June 4-7, 2007, Little Rock, Arkansas. June 13, 2007, Park City, Utah. June 28-29, 2007, Pittsburgh, Pennsylvania. FOR FURTHER INFORMATION CONTACT: Daniel Hedberg (Technical Information), Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6243. W. Mason Emnett (Legal Information), Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6540. SUPPLEMENTARY INFORMATION: Notice of Technical Conferences Take notice that Commission staff will convene technical conferences on the following dates in the following cities to review and discuss the “strawman” proposals regarding processes for transmission planning required by the Final Rule issued in this proceeding on February 16, 2007. 1 Staff expects all transmission providers and/or regional representatives to participate in the technical conference for their particular region, although all interested persons, including other transmission providers, are invited to attend each conference. 1 *Preventing Undue Discrimination and Preference in Transmission Service,* Order No. 890, 72 FR 12266 (March 15, 2007), FERC Stats. & Regs. ¶ 31,241 at P 443 (2007), *reh'g pending.* Date Location Transmission provider participants June 4-7, 2007 Little Rock, AR Entities located in the states represented in the Southeastern Association of Regulatory Utility Commissioners (SEARUC) and entities located in the Southwest Power Pool footprint, presenting on June 4-5 and 6-7, respectively. June 13, 2007 Park City, Utah Entities located within the ColumbiaGrid and Northern Tier Transmission Group footprints and other northern WECC regions. 2 June 28-29, 2007 Pittsburgh, PA Entities located within the Midwest ISO, PJM, New York ISO, and ISO New England footprints and adjacent areas. TBD TBD Entities located in the West other than those attending the June 13, 2007 conference in Park City, Utah. 2 A further notice with a detailed agenda for each conference will be issued in advance of the conferences. In the event a transmission provider is uncertain as to which technical conference is the appropriate forum for discussion of its “strawman” proposal, such transmission providers should contact Commission staff in advance to discuss the matter. 2 Staff also requests that a representative of WECC's Transmission Expansion Planning Policy Committee attend these technical conferences. For further information about these conferences, please contact: W. Mason Emnett, Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6461, *Mason.Emnett@ferc.gov.* Daniel Hedberg, Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6243, *Daniel.Hedberg@ferc.gov.* Philis J. Posey, Acting Secretary. [FR Doc. E7-7085 Filed 4-13-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF THE TREASURY Monetary Offices 31 CFR Part 82 Prohibition on the Exportation, Melting, or Treatment of 5-Cent and One-Cent Coins AGENCY: United States Mint, Treasury. ACTION: Final Rule. SUMMARY: To protect the coinage of the United States, the United States Mint is adopting a final rule that prohibits the exportation, melting, and treatment of 5-cent and one-cent coins. This rule is issued pursuant to 31 U.S.C. 5111(d), which authorizes the Secretary of the Treasury to prohibit or limit the exportation, melting, or treatment of United States coins when the Secretary decides the prohibition or limitation is necessary to protect the coinage of the United States. This rule's purpose is to ensure that sufficient quantities of 5-cent and one-cent coins remain in circulation to meet the needs of the United States. DATES: *Effective Date:* This final rule is effective April 16, 2007. FOR FURTHER INFORMATION CONTACT: Kristie Bowers, Attorney-Advisor, United States Mint at
(202)354-7631 (not a toll-free call). SUPPLEMENTARY INFORMATION: I. Background Section 5111(d) of title 31, United States Code, authorizes the Secretary of the Treasury to prohibit or limit the exportation, melting, or treatment of United States coins when the Secretary decides the prohibition or limitation is necessary to protect the coinage of the United States. In enacting 31 U.S.C. 5111(d), Congress has conferred upon the Secretary of the Treasury broad discretion to ensure that he can effectively carry out his statutory duties to protect the Nation's coinage and to ensure that sufficient quantities of coins are in circulation to meet the needs of the United States. Pursuant to this authority, the Secretary of the Treasury has determined that, to protect the coinage of the United States, it is necessary to generally prohibit the exportation, melting, or treatment of 5-cent and one-cent coins minted and issued by the United States. The Secretary has made this determination because the values of the metal contents of 5-cent and one-cent coins are in excess of their respective face values, raising the likelihood that these coins will be the subject of recycling and speculation. The prohibitions contained in this final rule apply only to 5-cent and one-cent coins. It is anticipated that this regulation will be a temporary measure that will be rescinded once actions are taken, or conditions change, to abate concerns that sufficient quantities of 5-cent and one-cent coins will remain in circulation to meet the needs of the United States. The Secretary of the Treasury has delegated to the Director of the United States Mint the authority to issue these regulations and to approve exceptions by license. II. Interim Rule This final rule is based on the interim rule published Wednesday, December 20, 2006 (71 FR 76148). The interim rule sought public comment on the proposed final rule. The comment period for the interim rule ended on January 19, 2007. The United States Mint received 31 comments from members of the public, businesses and trade associations. III. Summary of Comments General Overview Two commenters fully supported the regulation. One trade association supported the regulation as long as its proposed exception was included in the final regulation. Three commenters stated that the regulation should only be a temporary measure until a solution could be attained on the underlying issue. One commenter supported the regulation as it applies to 5-cent coins, but opposed the regulation as it applies to one-cent coins. Eighteen commenters generally opposed the regulation. Six commenters did not state whether they supported or opposed the regulation, but instead suggested an amendment to the regulation or proposed a solution to the underlying issue. Comments on Eliminating the 5-Cent Coin or One-Cent Coin and Altering Their Composition One bank and three individuals suggested that the United States government should eliminate the 5-cent coin and the one-cent coin as circulating coinage. The bank stated, “The cost associated with the creating and handling of these low denomination coins far exceeds their value.” Five commenters suggested that the United States Mint change the content of the 5-cent and one-cent coins to less expensive alloys. Two commenters suggested that the United States Mint eliminate the one-cent coin and alter the composition of the 5-cent coin. Commenters stated that the United States government should eliminate one-cent coins because they “waste pocket space” and people “throw them away.” A few of the commenters suggested that one-cent coins be eliminated after the 2009 Abraham Lincoln Bicentennial One-Cent Coin Redesign, provided for by Title III of the Presidential $1 Coin Act of 2005, Public Law 109-145 (Dec. 22, 2005). Two commenters suggested that existing 5-cent and one-cent coins be physically altered; one suggested punching holes in the center to decrease their melt value, and the other suggested encasing them in a ring of metal and increasing the denomination of the coins. Two commenters suggested the United States Mint begin producing a two-cent coin or a three-cent coin. The changes suggested by these comments are outside the scope of the interim rule, which is limited to implementation of the Secretary of the Treasury's authority under 31 U.S.C. 5111(d) to prohibit the exportation, melting, or treatment of coins when necessary to protect the coinage of the United States. We note, however, that under Article I, section 8, clause 5, of the United States Constitution, only Congress has the power to coin money and regulate its value. Congress determines the denominations, specifications, and design of United States coins. Under 31 U.S.C. 5112(c), Congress has delegated to the Secretary of the Treasury the authority to “prescribe the weight and the composition of copper and zinc in the alloy of the one-cent coin that the Secretary decides are appropriate when the Secretary decides that a different weight and alloy of copper and zinc are necessary to ensure an adequate supply of one-cent coins to meet the needs of the United States.” However, Congress has not delegated to the Secretary the authority to alter the composition of the one-cent coin to a metal, or an alloy of metals, other than copper and zinc. The United States Mint has ongoing research into alternative metals for the Nation's coinage. Changing the metal content or the denomination of United States coins requires legislation passed by Congress and approved by the President. Comments on Increasing the Face Value Limit on the Exporting Exception for One-Cent and 5-Cent Coins Carried on Individual or in Personal Effects Three commenters suggested that the aggregate face-value limit on the number of 5-cent and one-cent coins that can be exported by an individual carried on his or her person or in his or her personal effects should be increased. One of the commenters gave the example of Americans crossing the border into Canada to play “nickel slot” machines or “penny-ante” poker. The other commenter pointed out that a person would not be able to carry on his or her person one roll containing 5-cent coins bearing each of the five United States Mint Westward Journey Nickel Series TM designs without exceeding the $5 face-value limit, and would have to ship them out of the country instead. The aggregate face-value limit selected for the interim rule was the same face-value limit used when the Secretary invoked the standby authority of 31 U.S.C. 5111(d) for the periods 1967-1969 and 1974-1978. The United States Mint recognizes that some 30 years have passed since this authority was last invoked and, based on the consumer price index, the $5 limit in the previous regulations would be equivalent to about $20 today. However, the face values of 5-cent coins and one-cent coins obviously have not changed over this time period and there is no evidence to suggest that an average individual carries any more 5-cent or one-cent coins in his or her pocket change today, than in 1974 or 1967. Accordingly, the United States Mint has kept the aggregate face-value limit for the exception provided for in the current regulation at section 82.2(a)(2) at $5. The United States Mint nevertheless acknowledges the concerns raised by the commenters. Therefore, the exception provided for in the current regulation at section 82.2(a)(2) has been amended to reasonably accommodate these concerns by allowing exportation of 5-cent and one-cent coins having an aggregate face value of up to $25 when it is clear that the purpose for exporting such coins is for legitimate personal numismatic, amusement, or recreational use. Comments on Redeeming or Reclaiming One-Cent Coins Two commenters suggested the United States Mint should redeem existing 5-cent and one-cent coins and alter their physical form, as discussed above. One commenter suggested that the United States Mint and the Federal Reserve should encourage the public to redeem their unused one-cent coins and pay a small premium over their face value, and then the United States Mint could reclaim the pre-1982 copper one-cent coins for their metal content. One commenter stated that recycling the 5-cent and one-cent coins should not be prohibited because, if the coins are recycled for their metal content, it would increase the supply of copper, nickel and zinc, with the ensuing market forces resulting in a price decrease for those metals. The purpose of this regulation is to protect 5-cent and one-cent coins in circulation from being the subject of recycling and speculation in order to ensure that sufficient quantities of the coins remain in circulation to meet the needs of the United States. This regulation is not intended to address the cost and supply of metals used in, or the specifications for, the production of future 5-cent and one-cent coins. Further, the authorizing statute, 31 U.S.C. 5111(d), permits the Secretary of the Treasury only to prohibit or limit the exportation, melting, or treatment of United States coins. It does not authorize the Secretary to redeem current United States coin. Comments on the Constitutionality of the Regulation Twelve commenters stated that coins are the personal property of the holder and the Department of the Treasury does not have the authority to regulate what a person does with his or her own property. Although it is generally recognized that money is the property of its bearer under common law, Congress has the power to regulate the coins and currency of the United States pursuant to its authority under Article I, section 8, clause 5, of the United States Constitution. For instance, Congress has relied on that authority to regulate the use of coins by making it illegal to alter, deface, or mutilate United States coins with fraudulent intent, *see* 18 U.S.C. 331; to debase United States coins with fraudulent intent, *see* 18 U.S.C. 332; and to attach any business or professional card, notice, or advertisement on any United States coin, *see* 18 U.S.C. 475. There are many other examples of personal property whose use is regulated by the Federal government. These include controlled drugs; firearms; copyrighted books, electronic recordings; United States postage stamps; Federal Reserve notes; and uniforms and service medals of the Armed Forces. Such regulations are generally enacted to protect competing ownership interests in the same property, to protect the health and safety of the public, or to protect a special governmental interest in property otherwise privately owned. In this case, the Federal Government has an interest in ensuring that sufficient quantities of 5-cent and one-cent coins remain in circulation to meet the needs of the United States. Moreover, while several provisions of the Constitution protect property rights, a statute or regulation is not unconstitutional merely because it has some effect on those rights. *See, e.g., Penn Central Transp. Corp.* v. *New York City* , 438 U.S. 104
(1978)(Government restrictions on the use of private property are legal when substantially related to the promotion of the general welfare and do not prohibit reasonable beneficial use). The regulation here is necessary to protect the United States coinage. In addition, the standby authority that the Secretary of the Treasury possesses under 31 U.S.C. 5111(d) has been in effect since 1965; therefore, members of the public generally have been on notice that they accept and use U.S. coinage subject to this potential limitation. None of the comments set forth any specific theory under which the regulation is asserted to be unconstitutional, and we continue to believe that this is not the case. Comments on Debasement and Devaluation Eleven commenters discussed inflation and the debasement and devaluation of United States currency. However, this issue is beyond the scope of this regulation. Pursuant to the authorizing statute, 31 U.S.C. 5111, this regulation's purpose is to protect the Nation's coinage by ensuring there are sufficient 5-cent and one-cent coins in circulation to meet the needs of the United States. Comments on Enforcement of the Regulation One commenter stated that the penalties provided in the regulation are too harsh. However, the statute that enables the Secretary of the Treasury to issue this regulation, 31 U.S.C. 5111(d), mandates the penalties for engaging in the prohibited activities, as follows: (d)(1) The Secretary may prohibit or limit the exportation, melting, or treatment of United States coins when the Secretary decides the prohibition or limitation is necessary to protect the coinage of the United States.
(2)A person knowingly violating an order or license issued or regulation prescribed under paragraph
(1)of this subsection, shall be fined not more than $ 10,000, imprisoned not more than 5 years, or both. Three commenters stated that the cost of enforcing the regulation would exceed the minting costs that the regulation is intended to save, or that enforcing the regulation is a waste of law enforcement resources. The Secretary of the Treasury has weighed the enforcement costs associated with the enactment of this regulation against the potential costs of not enacting this regulation and has determined that it is in the public's best interest to enact this regulation as a temporary measure until actions are taken, or conditions change, to abate concerns that sufficient quantities of 5-cent and one-cent coins will remain in circulation to meet the needs of the United States. Two commenters voiced concern that the Federal Government could arrest or fine a science teacher for experimenting with a one-cent coin during a classroom demonstration, or could arrest or fine a child for using a penny pressing machine at an amusement park. However, the regulation includes an exception for the treatment of 5-cent and one-cent coins for educational, amusement, novelty, jewelry, and similar purposes as long as the volumes treated and the nature of the treatment make it clear that such treatment is not intended as a means by which to profit solely from the value of the metal content of the coins. Six commenters stated that the public would hoard the coins and remove them from circulation. The United States Mint is aware that 5-cent and one-cent coins may be hoarded. However, the legislative history of 31 U.S.C. 5111(d) indicates that when Congress passed the Coinage Act of 1965, section 105 (the predecessor provision to 31 U.S.C. 5111(d)), it did not intend on prohibiting hoarding because of concerns that such prohibitions would be difficult to enforce and that citizens might unknowingly violate the regulations. The United States Mint does not intend to prohibit the hoarding of 5-cent and one-cent coins but, consistent with the legislative intent of 31 U.S.C. 5111(d), has implemented these prohibitions on exportation, melting, and treatment to reduce the incentive to hoard these coins. Comments From Trade Associations and Businesses The Institute of Scrap Recycling Industries, Inc. (Institute), a trade association for the recycling industry, submitted a comment suggesting that an exception be added for the unintended exportation, melting, and treatment of 5-cent and one-cent coins that occurs incidental to the recycling of other materials, such as scrap automobiles and construction and demolition debris. We agree that such melting should not be prohibited, and have added an exception for coins incidentally present in recycled scrap. In doing so, we express no view as to whether the melting or export of coins under the circumstances described by the Institute would otherwise violate the regulation. The Industry Council for Tangible Assets (Council), a trade association for rare coin and precious metals dealers, submitted a comment suggesting that an exception be added for the exportation, melting, or treatment of “war nickels.” War nickels were 5-cent coins produced during World War II, from 1942 through 1945, from a special alloy of copper, silver, and manganese in order to conserve nickel for the war effort. The Council points out that the war nickels are traded for their numismatic value, they are melted for the value of their metal composition, and that few, if any, remain as circulating coins. Because it appears that covering war nickels under the regulation would disrupt longstanding practices and would not further the protection of circulating coinage, we have added an exception for such coins. Advice From the Cash Product Office of the Federal Reserve The Cash Product Office of the Federal Reserve advised that some depository institutions export 5-cent and one-cent coins, as well as other U.S. circulating coins, to foreign countries that have so-called “dollarized” monetary systems. Central banks in these countries purchase U.S. circulating coinage from domestic depository institutions for use as circulating money in their own countries. To accommodate this legitimate requirement to permit the exportation of 5-cent and one-cent coins, we have added an additional exception to the final regulation. IV. Conclusion Based on the comments received and the analysis of those comments as set forth above, and based on the additional considerations discussed above, the Department of the Treasury, United States Mint, has concluded that the interim regulation will be adopted as a final rule, with certain changes as discussed above and set forth below. V. Procedural Requirements This rule is not a significant regulatory action for the purposes of Executive Order 12866. Because a notice of proposed rulemaking was not required prior to the implementation of the interim rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6), do not apply. The final rule does not impose a “collection of information” requirement within the meaning of the Paperwork Reduction Act of 1995. The final rule will be effective upon publication. The final rule relieves some of the restrictions in the interim rule by providing for new exceptions and for the expansion of existing exceptions. Accordingly, because the final rule grants or recognizes an exemption or relieves a restriction currently in place, 5 U.S.C. 553(d)(1) exempts the final rule from the requirement in 5 U.S.C. 553(d) that the publication or service of a substantive rule shall be made not less than 30 days before its effective date. VI. Format The format of the final rule is generally consistent with the format of the interim rule. List of Subjects in 31 CFR Part 82 Administrative practice and procedure, Currency, Exports, Penalties. Amendments to the Regulation For the reasons set forth above, the interim rule amending Chapter 1 of Subtitle B of Title 31 of the Code of Federal Regulations, which was published at 71 FR 76148 on December 20, 2006, is adopted as a final rule with the following changes. PART 82—5-CENT AND ONE-CENT COIN REGULATIONS 1. The authority citation for part 82 continues to read as follows: Authority: 31 U.S.C. 5111(d). 2. Section 82.2 is amended by revising paragraph (a)(2), redesignating current paragraph
(c)as paragraph (f), and adding new paragraphs (c), (d), and
(e)as follows: § 82.2 Exceptions.
(a)* * *
(2)The exportation of 5-cent coins and one-cent coins carried on an individual, or in the personal effects of an individual, departing from a place subject to the jurisdiction of the United States, when the aggregate face value is not more than $5, or when the aggregate face value is not more than $25 and it is clear that the purpose for exporting such coins is for legitimate personal numismatic, amusement, or recreational use.
(c)The prohibition contained in § 82.1 against the exportation, melting, or treatment of 5-cent and one-cent coins of the United States shall not apply to coins exported, melted, or treated incidental to the recycling of other materials so long as—
(1)Such 5-cent and one-cent coins were not added to the other materials for their metallurgical value;
(2)The volumes of the 5-cent coins and one-cent coins, relative to the volumes of the other materials recycled, makes it clear that the presence of such coins is merely incidental; and
(3)The separation of the 5-cent and one-cent coins from the other materials would be impracticable or cost prohibitive.
(d)The prohibition contained in § 82.1 against the exportation, melting, or treatment of 5-cent coins shall not apply to 5-cent coins inscribed with the years 1942, 1943, 1944, or 1945 that are composed of an alloy comprising copper, silver and manganese.
(e)The prohibition contained in § 82.1 against the exportation of 5-cent coins and one-cent coins shall not apply to 5-cent coins and one-cent coins exported by a Federal Reserve Bank or a domestic depository institution, or to a foreign central bank, when the exportation of such 5-cent coins and one-cent coins is for use as circulating money. Dated: April 10, 2007. Edmund C. Moy, Director, United States Mint. [FR Doc. E7-7088 Filed 4-13-07; 8:45 am] BILLING CODE 4810-02-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-07-030] Drawbridge Operation Regulations; Quinnipiac River, New Haven, CT AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Ferry Street Bridge, across the Quinnipiac River, mile 0.7, at New Haven, Connecticut. This deviation, allows the bridge owner to keep one of the two moveable bascule spans in the closed position from April 16, 2007 through September 27, 2007. This deviation is necessary to facilitate scheduled bridge maintenance. DATES: This deviation is effective from April 16, 2007 through September 27, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, One South Street, New York, New York 10004, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is
(212)668-7165. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Judy Leung-Yee, Project Officer, First Coast Guard District, at
(212)668-7165. SUPPLEMENTARY INFORMATION: The Ferry Street Bridge, across the Quinnipiac River, mile 0.7, at New Haven, Connecticut, has a vertical clearance in the closed position of 25 feet at mean high water and 31 feet at mean low water. The existing regulation requires the bridge to open on demand except for certain morning, mid-day and evening hours. Connecticut Department of Transportation on behalf of the owner of the bridge, the City of New Haven, requested a temporary deviation to facilitate scheduled structural bridge fender repairs and painting at the bridge. In order to perform the structural repairs, one bascule span will remain in the closed position and the other span will remain open. Under this temporary deviation the Ferry Street Bridge across the Quinnipiac River, mile 0.7, at New Haven, Connecticut, may keep one of the two movable spans closed from April 16, 2007 through September 27, 2007. Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operating schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the **Federal Register** , where practicable. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: April 6, 2007. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E7-7156 Filed 4-13-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-07-032] Drawbridge Operation Regulations; Reynolds Channel, Lawrence, NY AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Atlantic Beach Bridge across Reynolds Channel, mile 0.4, at Lawrence, New York. Under this temporary deviation a one-hour advance notice will be required for bridge openings from April 9, 2007 through April 27, 2007, between 7 a.m. and 3:30 p.m., daily. This deviation is necessary to facilitate scheduled bridge maintenance. DATES: This deviation is effective from April 9, 2007 through April 27, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, One South Street, New York, New York, 10004, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is
(212)668-7165. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Judy Leung-Yee, Project Officer, First Coast Guard District, at
(212)668-7165. SUPPLEMENTARY INFORMATION: The Atlantic Beach Bridge across Reynolds Channel, mile 0.4, at Lawrence, New York, has a vertical clearance in the closed position of 25 feet at mean high water and 30 feet at mean low water. The existing operating regulations are listed at 33 CFR 117.799. The bridge owner, Nassau County Bridge Authority, requested a temporary deviation to allow the bridge owner to require a one-hour advance notice for bridge openings to facilitate scheduled mechanical bridge maintenance. Under this temporary deviation a one-hour advance notice shall be required for bridge openings at the Atlantic Beach Bridge from April 9, 2007 through April 27, 2007, between 7 a.m. and 3:30 p.m., daily. Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operating schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the **Federal Register** , where practicable. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: April 6, 2007. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E7-7155 Filed 4-13-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD07-06-050] RIN 1625-AA09 Drawbridge Operation Regulation; Venetian Causeway
(West)Drawbridge, Atlantic Intracoastal Waterway, Mile 1088.6, and Venetian Causeway
(East)Drawbridge, Biscayne Bay, Miami, Miami-Dade County, FL AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is changing the operating regulations governing the Venetian Causeway
(West)drawbridge, Atlantic Intracoastal Waterway, mile 1088.6, and Venetian Causeway
(East)drawbridge, Biscayne Bay, Miami, Miami-Dade County, Florida. This rule requires these drawbridges to open on signal, except that from 7 a.m. to 7 p.m., Monday through Friday, except Federal holidays the drawbridges will open on the hour and half-hour. This rule changes the Federal holiday dates and aligns them with all Federal holidays. DATES: This rule is effective May 16, 2007. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket (CGD07-06-050) and are available for inspection or copying at Commander (dpb), Seventh Coast Guard District, 909 S.E. 1st Avenue, Room 432, Miami, Florida 33131-3050 between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Michael Lieberum, Seventh Coast Guard District, Bridge Branch, telephone number 305-415-6744. SUPPLEMENTARY INFORMATION: Regulatory Information On October 3, 2006, we published a notice of proposed rulemaking
(NPRM)entitled Drawbridge Operation Regulations; Venetian Causeway
(West)Drawbridge, Atlantic Intracoastal Waterway, Mile 1088.6, and Venetian Causeway
(East)Drawbridge, Biscayne Bay, Miami, Miami-Dade County, FL in the **Federal Register** 71 FR 191. We received six comments on the proposed rule. No public meeting was requested, and none was held. Background and Purpose The existing regulation of the Venetian Causeway
(West)Drawbridge, Atlantic Intracoastal Waterway mile 1088.6, Miami, Miami-Dade County, Florida, requires the draw to open promptly and fully for the passage of vessels when a request to open is given. The existing regulation of the Venetian Causeway
(East)Drawbridge, Biscayne Bay, Miami, Miami-Dade County, Florida, requires the draw to open on signal; except that from November 1 through April 30 from 7:15 a.m. to 8:45 a.m. and 4:45 p.m. to 6:15 p.m. Monday through Friday, the draw need not be opened. However, the draws shall open at 7:45 a.m., 8:15 a.m., 5:15 p.m., and 5:45 p.m. if any vessels are waiting to pass. The draw shall open on signal on Thanksgiving Day, Christmas Day, New Year's Day and Washington's Birthday. The draw shall open at any time for public vessels of the United States, tugs with tows, regularly scheduled cruise vessels, and vessels in distress. The residents of Venetian Causeway requested the regulations of both drawbridges (East and West) be changed to allow for a 30-minute opening schedule from 7 a.m. to 7 p.m., Monday through Friday, except Federal holidays in order to relieve vehicular traffic delays. On April 3, 2006, we published a test deviation entitled Drawbridge Operation Regulations; Venetian Causeway
(West)drawbridge, Atlantic Intracoastal Waterway mile 1088.6, and Venetian Causeway
(East)drawbridge, Biscayne Bay, Miami, Miami-Dade County, Florida in the **Federal Register** 71 FR 16492. We received eight comments all in favor of the test deviation. On October 3, 2006, we published a notice of proposed rulemaking
(NPRM)in the **Federal Register** 71 FR 191. We received six comments on the proposed rule. The current holiday listings for the Venetian Causeway
(East)bridge have created confusion because they do not follow the Federal holiday schedule. This rule will align the Venetian Causeway
(East)bridge to the Federal holiday schedule and eliminate the confusion. Discussion of Comments and Changes The Coast Guard received six responses to the notice of proposed rulemaking (NPRM). Five comments were for the proposed rule and one comment against the proposed rule. The comment against the proposed rule stated that the East Venetian Drawbridge is too low and the half-hour schedule would cause an unreasonable restriction during the day. The Coast Guard considered this comment and determined that the half-hour opening schedule will not cause an unreasonable delay as vessels will be able to time their transits during these opening periods. No changes were made to the Final Rule. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although bridge openings will be less frequent, vessel traffic will still be able to transit the Intracoastal Waterway in the vicinity of the Venetian Causeway (East and West) bridges pursuant to the revised opening schedule. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which may be small entities: The owners or operators of vessels needed to transit the Intracoastal Waterway and Biscayne Bay in the vicinity of the Venetian Causeway (East and West) bridges, persons intending to drive over the bridges, and nearby business owners. The revision to the openings schedule would not have a significant impact on a substantial number of small entities. Vehicle traffic and small business owners in the area might benefit from the improved traffic flow that regularly scheduled openings will offer this area. Although bridge openings will be less frequent, vessel traffic will still be able to transit the Intracoastal Waterway in the vicinity of the Venetian Causeway (East and West) bridges pursuant to the revised opening schedule. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about the rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); § 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. In § 117.261 revise paragraphs
(nn)through
(pp)to read as follows: § 117.287 Atlantic Intracoastal Waterway from St. Marys River to Key Largo.
(nn)The Venetian Causeway Bridge (West), mile 1088.6, shall open on signal, except that from 7 a.m. to 7 p.m., Monday through Friday, except Federal holidays, the bridge need only open on the hour and half-hour.
(oo)through
(pp)[Reserved.] 3. Revise § 117.269 to read as follows: § 117.269 Biscayne Bay. The Venetian Causeway Bridge
(East)shall open on signal, except that from 7 a.m. to 7 p.m., Monday through Friday, except Federal holidays, the bridge need only open on the hour and half-hour. Dated: March 19, 2007. James Watson, Captain, U.S.C.G., USCG District Seven Commander, Acting. [FR Doc. E7-7157 Filed 4-13-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-07-035] Drawbridge Operation Regulations; Chelsea River, Chelsea and East Boston, MA AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the P.J. McArdle Bridge across the Chelsea River at mile 0.3, between Chelsea and East Boston, Massachusetts. Under this temporary deviation, the bridge may remain in the closed position from 8 a.m. to 5 p.m., on June 16, 2007. Vessels that can pass under the draw without a bridge opening may do so at all times. This deviation is necessary to facilitate the annual Chelsea River Revel and 5K Road Race. DATES: This deviation is effective on June 16, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, 408 Atlantic Avenue, Boston, Massachusetts, 02110, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is
(617)223-8364. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: John McDonald, Project Officer, First Coast Guard District, at
(617)223-8364. SUPPLEMENTARY INFORMATION: The P.J. McArdle Bridge, across the Chelsea River at mile 0.3, between Chelsea and East Boston, Massachusetts, has a vertical clearance in the closed position of 21 feet at mean high water and 30 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.593. The owner of the bridge, the City of Boston, requested a temporary deviation to facilitate the annual Chelsea River Revel and 5K Road Race. The bridge will not be able to open while this scheduled event is underway. Under this temporary deviation, the P.J. McArdle Bridge need not open for the passage of vessel traffic between 8 a.m. and 5 p.m. on June 16, 2007. Vessels that can pass under the bridge without a bridge opening may do so at all times. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: April 5, 2007. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E7-7152 Filed 4-13-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CCGD05-07-035] RIN 1625-AA00 Safety Zone: Satellite Launch, NASA Wallops Flight Facility, Wallops Island, VA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The U. S. Coast Guard is establishing a safety zone in support of a satellite rocket space launch originating from the Mid-Atlantic Regional Spaceport
(MARS)Pad 0B launch complex. This action is intended to restrict vessel traffic within 12-nautical miles of Wallops Island, VA as described herein. This safety zone is necessary to facilitate the launch process and protect mariners from the hazards associated with the satellite launch. DATES: This rule is effective from 2 a.m. April 21, 2007 until 5 a.m. April 24, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD05-07-035 and are available for inspection or copying at the U. S. Coast Guard Sector Hampton Roads, Norfolk Federal Building, 200 Granby St., Suite 700, Norfolk, VA, 23510 between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: LT Bill Clark, Waterways Management Division, U. S. Coast Guard Sector Hampton Roads, Virginia at
(757)668-5580. SUPPLEMENTARY INFORMATION: Regulatory Information Pursuant to 5 U.S.C. 553(b)(B), a notice of proposed rulemaking
(NPRM)was not published for this regulation as good cause exists for not publishing a NPRM and for making this regulation effective less than 30 days after **Federal Register** publication under 5 U.S.C. 553(d)(3). Any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public safety as immediate action is required to prevent vessel traffic from transiting through the navigable waters in the vicinity of the Wallops Island, Chincoteague Inlet, and those waters extending beyond the State of Maryland located within the boundaries of the safety zone. Background and Purpose On April 21, 2007, the National Aeronautics and Space Administration
(NASA)will be attempting to launch a rocket carrying a spacecraft from Wallops Island, VA. Spectators are expected to be observing from both land and sea. Vessel traffic in the vicinity of this location will be temporarily restricted while the safety zone is in effect and as described herein. The safety zone will be in effect from 2 a.m. on April 21, 2007 until 5 a.m. on April 24, 2007. This safety zone will be enforced from 2 a.m. until 5 a.m. each day the safety zone is in effect. If the launch occurs as planned on one of those days during this period, then the safety zone will no longer be enforced on subsequent days following the launch as identified in this paragraph. To protect mariners and spectators from the hazards associated with the launch, and to protect the launch vehicle and equipment a warning signal will be displayed in accordance with 33 CFR 334.130(b)(3). Discussion of Rule The U.S. Coast Guard is establishing a regulated area that consists of a safety zone encompassing all navigable waters from 37°-48′-30″ N/075°-31′-58″ W on Northam Narrows to 37°-51′-30″ N/075°-28′-36″ W on Cat Creek. This regulated area will follow the Virginia coastal and inland shoreline from the aforementioned position in Cat Creek out to a point on the northeast tip of Wallops Island at 37°-53′-03″ N/075°-25′-05″ W, thence to a point on the southwest tip of Assateague Island at 37°-52′-28″N/075°-24′-20″ W, thence to a point on the southeast side of Assateague Island at 37°-51′-32″N/075°-22′-01″ W, thence easterly to a point on the United States territorial seas boundary line at 37°-47′-30″ N/075°-09′-55″ W. The regulated area will continue in a southerly direction along the United States territorial seas boundary line to a point at 37°-40′-56″ N/075°-21′-12″ W, thence westerly to a point on Assawoman Island at 37°-47′-11″ N/075°-31′-34″ W, thence back again to the point of origin. The safety zone will be enforced from 2 a.m. until 5 a.m. on April 21, 2007 and every day there after at the same time until April 24, 2007 that the launch is attempted. After April 24, 2007 the regulated area will no longer be in effect. Except for participants and vessels authorized by the U. S. Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation restricts access to the regulated area, the effect of this rule will not be significant because:
(i)The safety zone will be in effect for a limited duration; and
(ii)the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. However, this rule may affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in the described portion of the safety zone during the enforcement periods from 2 a.m. to 5 a.m. from April 21, 2007 until April 24, 2007. The safety zone will not have a significant impact on a substantial number of small entities, because the zone will only be in place for a few hours each day during the effective period and maritime advisories will be issued, so the mariners can adjust their plans accordingly. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Bill Clark, Chief, Waterways Management Division, Sector Hampton Roads at
(757)668-5580. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. An “Environmental Analysis Check List” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 Subpart C as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T05-035, to read as follows: § 165.T05-035 Security Zone: Wallops Island, Virginia.
(a)*Location.* The following area is a safety zone: All navigable waters from 37°-48′-30″N/075°-31′-58″W on Northam Narrows to 37°-51′-30″N/075°-28′-36″W on Cat Creek, thence to a point following the Virginia coastal and inland shoreline to a point on the northeast tip of Wallops Island at 37°-53′-03″N/075°-25′-05″W, thence easterly to a point on the southwest tip of Assateague Island at 37°-52′-28″N/075°-24′-20″W, thence along the shoreline to a point on the southeast side of Assateague Island at 37°-51′-32″N/075°-22′-01″W, thence easterly to a point on the United States territorial seas boundary line at 37°-47′-30″N/075°-09′-55″W. The regulated area will continue in a southerly direction along the United States territorial seas boundary line to a point at 37°-40′-56″N/075°-21′-12″W, thence westerly to a point on Assawoman Island at 37°-47′-11″N/075°-31′-34″W, thence back again to the point of origin in the Captain of the Port, Hampton Roads, Virginia zone as defined in 33 CFR 3.25-10.
(b)*Definition.* As used in this section *Captain of the Port Representative:* Any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port, Hampton Roads, Virginia to act on his behalf.
(c)*Regulations.*
(1)In accordance with the general regulations in 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port, Hampton Roads or his designated representatives.
(2)The operator of any vessel in the immediate vicinity of this safety zone shall:
(i)Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(ii)Proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(3)The Captain of the Port, Hampton Roads and the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia can be contacted at telephone number
(757)668-5555 or
(757)484-8192.
(4)The Coast Guard Representatives enforcing the safety zone can be contacted on VHF-FM 13 and 16.
(d)*Effective Date.* This regulation is effective from 2 a.m. on April 21, 2007 until 5 a.m. on April 24, 2007. Dated: April 4, 2007. Patrick B. Trapp, Captain, U.S. Coast Guard, Captain of the Port, Hampton Roads. [FR Doc. E7-7183 Filed 4-13-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD01-07-33] RIN 1625-AA00 Safety Zone; South Portland, ME, Gulf Blasting Project AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is reinstating the temporary safety zone around the blasting and dredging project near the Gulf Oil Terminal Berth in South Portland, Maine and around the M/V RELIANCE. These safety zones are needed to protect persons, facilities, vessels and others in the maritime community from the safety hazards associated with this blasting and dredging project, which is being undertaken to increase the water depth of the Gulf Oil Terminal Berth to 41 feet. Entry into this safety zone is prohibited unless authorized by the Captain of the Port, Northern New England. DATES: This rule is effective from 8 a.m. Eastern Daylight Time
(EDT)April 2, 2007 until 11:59 p.m. Eastern Daylight Time
(EDT)on April 15, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD01-07-012 and are available for inspection or copying at U.S. Coast Guard Sector Northern New England, 259 High Street, South Portland, ME 04106 between the hours of 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: LTJG Jarrett Bleacher, at
(207)741-5421. SUPPLEMENTARY INFORMATION: Regulatory Information On February 20, 2007, we enacted a Temporary Final Rule
(TFR)entitled “Safety Zone; South Portland, Maine, Gulf Blasting Project”. (72 FR 10360, March 8, 2007) The original effective period for this rule was from 7 a.m. Eastern Standard Time
(EST)on February 20, 2007 until 4 p.m. Eastern Daylight Time
(EDT)on March 31, 2007. In order to maintain the protection of persons, facilities, vessels and others in the maritime community from the safety hazards associated with this blasting and dredging project, as the blasting contractor has informed the Coast Guard that operations will not be completed within the scheduled timeframe, we find it necessary to reissue a temporary regulation establishing a safety zone around the South Portland Maine, Gulf blasting project. We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because any delay encountered with this regulation would be contrary to public safety since the safety zone is needed to provide for the safety of life on navigable waters and to prevent traffic from transiting within the waters effected by this blasting and dredging project. The details of this project's continuation were not provided to the Coast Guard until March 22, 2007 making it impossible to publish a NPRM or a final rule 30 days in advance. Similarly, Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying this rule would be contrary to the public interest since continued action is necessary to protect persons, facilities, vessels and others in the maritime community from the safety hazards associated with the handling, detonation, and transportation of explosives. Background and Purpose The explosives loading and blasting operations will continue to occur at various times during the period between March 31, 2007 and April 15, 2007. The blasting plan calls for the drilling, blasting, and dredging of various areas within the berthing area of the Gulf Oil Terminal in South Portland, Maine. The explosives loading will occur at East End Beach at the Eastern Promenade, Portland, Maine, or at the municipal boat ramp at Bug Light Park, South Portland, Maine. The explosives will be transported via truck aboard M/V RELIANCE to the Gulf Oil Terminal in South Portland where the blasting and dredging project will be conducted. This regulation establishes a moving safety zone in all waters of the Fore River and Casco Bay in a 100-yard radius around the M/V RELIANCE as it transits from the East End Beach or Bug Light Park to the Gulf Facility and from the Gulf Facility back to the East End Beach or Bug Light Park. It also establishes a 100-yard safety zone around the perimeter of the affected portion of the berthing area of the Gulf Oil Terminal while blasting operations are being conducted. This area is defined as all of the waters enclosed by a line starting from a point located at the western side of the Gulf Oil Terminal Dock at latitude 43°39′12.537″ N, longitude 70°14′25.923″ W; thence to latitude 43°39′10.082″ N, longitude 70°14′26.287″ W; thence to latitude 43°39′10.209″ N, longitude 70°14′27.910″ W; thence to latitude 43°39′12.664″ N, longitude 70°14′27.546″ W; thence to the point of beginning.(DATUM:NAD 83). These safety zones are required to protect the maritime community from the hazards associated with the loading, detonation, and transportation of explosives. Entry into this zone will be prohibited unless authorized by the Captain of the Port. Discussion of Rule This rule continues to provide for the safety of vessel traffic and the maritime public from the hazards associated with blasting operations on the designated waters in the Fore River. This TFR reinstates a temporary safety zone around the blasting and dredging project near the Gulf Oil Terminal Berth in South Portland. This document restricts vessel traffic in various portions of the Fore River and Casco Bay while the M/V RELIANCE is in transit and around the perimeter of the affected portion of the Gulf Oil Terminal when blasting operations are taking place. Although the safety zone being reinstated will be in effect for two weeks, as before, it will only be enforced during actual transit and blasting times. Entry into those zones by any vessel is prohibited unless specifically authorized by the Captain of the Port, Northern New England. The Captain of the Port anticipates negligible negative impact on vessel traffic from this temporary safety zone as it will be in effect only during transit and blasting operations. Blasting operations are anticipated to occur only two to three times per week between the hours of 7 a.m. and 4 p.m. The moving safety zone around the M/V RELIANCE will be enforced only during the transit of explosives to the site and from the site back to shore with unused explosives. The zone around the perimeter of the work site extends only minimally into the channel and will not affect vessels transiting in or out of the port. The zone around the worksite will be enforced only during the actual blasting times. The enhanced safety to life and property provided by this rule greatly outweighs any potential negative impacts. Public notifications will be made during the entire effective period of this safety zone via marine information broadcasts. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. The effect of this rule will not be significant for the following reasons: The safety zone will be enforced only during the transit of the M/V RELIANCE and during blasting operations. There is adequate room in the channel for vessels to transit during the blasting operations. Vessels will be permitted to transit and navigate in the effected waters when no blasting is taking place, minimizing any adverse impact. Additionally, extensive maritime advisories will be broadcast during the duration of the effective period. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit in the safety zone during this demolition event. However, this rule will not have a significant economic impact on a substantial number of small entities due to the minimal time that vessels will be restricted from the area, the ample space available for vessels to maneuver and navigate around the zone, and advance notifications will be made to the local community by marine information broadcasts. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121]), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LTJG Jarrett Bleacher at
(207)741-5421, Sector Northern New England, Waterways Management Division. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any police or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(g), as it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T01-012 to read as follows: § 165.T01-012 Safety Zone: Gulf Oil Terminal Dredging Project, South Portland, ME.
(a)*Location.* The following area is a safety zone: All waters of the Fore River and Casco Bay in a 100 yard radius around the M/V RELIANCE as it transits from the East End Beach or Bug Light Park to the Gulf Oil Terminal Facility and from the Gulf Oil Terminal Facility back to the East End Beach or Bug Light Park, while transporting explosives; and, all waters in a 100 yard radius around the perimeter of the berthing area of the Gulf Oil Terminal while blasting operations are being conducted. This area is defined as: All of the waters enclosed by a line starting from a point located at the western side of the Gulf Oil Terminal Dock at longitude 43°39′12.537″ N, longitude 70°14′25.923″ W; thence to latitude 43°39′10.082″ N, longitude 70°14′26.287″ W; thence to latitude 43°39′10.209″ N, longitude 70°14′27.910″ W; thence to latitude 43°39′12.664″ N, longitude 70°14′27.546″ W; thence to the point of beginning.(DATUM:NAD 83). All vessels are restricted from entering this area.
(b)*Effective Date* . This section is effective 8 a.m. April 2, 2007 until 11:59 p.m. on April 15, 2007.
(c)*Definitions* .
(1)*Designated representative* means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port (COTP).
(2)[Reserved]
(d)*Regulations.*
(1)In accordance with the general regulations in 165.23 of this part, entry into or movement within this zone by any person or vessel is prohibited unless authorized by the COTP, Northern New England or the COTP's designated representative.
(2)The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or the COTP's designated representative.
(3)Vessel operators desiring to enter or operate within the safety zone may contact the COTP or the COTP's designated representative at telephone number 207-767-0303 or on VHF Channel 13 (156.7 MHz) or VHF channel 16 (156.8 MHz) to seek permission to do so. If permission is granted, all persons and vessels must comply with the instructions given to them by the COTP or the COTP's designated representative. Dated: April 2, 2007. S.P. Garrity, Captain, U.S. Coast Guard, Captain of the Port, Northern New England. [FR Doc. E7-7187 Filed 4-13-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Parts 1 and 41 [Docket No.: PTO-P-2005-0016] RIN 0651-AB77 Revisions and Technical Corrections Affecting Requirements for Ex Parte and Inter Partes Reexamination AGENCY: United States Patent and Trademark Office, Department of Commerce. ACTION: Final rule. SUMMARY: The United States Patent and Trademark Office (Office) is revising the rules of practice relating to *ex parte* and *inter partes* reexamination. The Office is designating the correspondence address for the patent as the correct address for all communications for patent owners in an *ex parte* reexamination or an *inter partes* reexamination, and simplifying the filing of reexamination papers by providing for the use of a single “mail stop” address for the filing of substantially all *ex parte* reexamination papers (such is already the case for *inter partes* reexamination papers). The Office is revising the rules to prohibit supplemental patent owner responses to an Office action in an *inter partes* reexamination proceeding without a showing of sufficient cause. Finally, the Office is making miscellaneous clarifying changes as to terminology and applicability of the reexamination rules. The Office is not implementing its proposal (that was set forth in the proposed rule making) to newly provide for a patent owner reply to a request for reexamination, prior to the Office's decision on the request. DATES: *Effective Date:* May 16, 2007. *Applicability Date:* The changes in this final rule apply to any reexamination proceeding ( *ex parte* or *inter partes* ) which is pending before the Office as of May 16, 2007 and to any reexamination proceeding which is filed after that date. FOR FURTHER INFORMATION CONTACT: By telephone—Kenneth M. Schor, Senior Legal Advisor at
(571)272-7710; by mail addressed to U.S. Patent and Trademark Office, Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, marked to the attention of Kenneth M. Schor; by facsimile transmission to
(571)273-7710 marked to the attention of Kenneth M. Schor; or by electronic mail message (e-mail) over the Internet addressed to *kenneth.schor@uspto.gov.* SUPPLEMENTARY INFORMATION: The Office is revising the rules of practice relating to *ex parte* and *inter partes* reexamination as follows: I: Designating the correspondence address for the patent as the correct address for all notices, official letters, and other communications for patent owners in an *ex parte* reexamination or an *inter partes* reexamination. Also, simplifying the filing of reexamination papers by providing for the use of “Mail Stop *Ex Parte* Reexam” for the filing of all *ex parte* reexamination papers (not just *ex parte* reexamination requests), other than certain correspondence to the Office of the General Counsel. II: Prohibiting supplemental patent owner responses to an Office action in an *inter partes* reexamination without a showing of sufficient cause. III: Making miscellaneous clarifying changes as to the terminology and applicability of the reexamination rules, and correcting inadvertent errors in the text of certain reexamination rules. I. Reexamination Correspondence *Subpart 1—The Patent Owner's Address of Record:* Section 1.33(c) has been revised to designate the correspondence address for the patent to be reexamined, or being reexamined, as the correct address for all notices, official letters, and other communications for patent owners in reexamination proceedings. Prior to this revision to § 1.33(c), all notices, official letters, and other communications for patent owners in a reexamination proceeding had been directed to the attorney or agent of record in the patent file at the address listed on the register of patent attorneys and agents maintained by the Office of Enrollment and Discipline
(OED)pursuant to § 11.5 and § 11.11 (hereinafter, the “attorney or agent of record register address”). The correspondence address for any pending reexamination proceeding not having the same correspondence address as that of the patent is, by way of this revision to § 1.33(c), automatically changed to that of the patent file—as of the effective date of this Notice. For any such proceeding, it is strongly encouraged that the patent owner affirmatively file a Notification of Change of Correspondence Address in the reexamination proceeding and/or the patent to conform the address of the proceeding with that of the patent and to clarify the record as to which address should be used for correspondence. While the correspondence address change for the reexamination proceeding is automatically effected (by rule) even if the patent owner notification is not filed, such a patent owner notification clarifies the record, and addresses the possibility that, absent such a patent owner notification, correspondence may inadvertently be mailed to an incorrect address, causing a delay in the prosecution. This revision to § 1.33(c) is based on the following:
(1)Prior to the revision, the Office had received reexamination filings where the request had been served on the patent owner at the correspondence address under § 1.33(a) that was the correct address for the patent, rather than at the attorney or agent of record register address that was the previously prescribed (prior to the present rule revision) correspondence address in § 1.33(c) for use in reexamination. This occurred because the § 1.33(a) address was, and is, the address used for correspondence during the pendency of applications, as well as post-grant correspondence in patents maturing from such applications.
(2)Further, even if a potential reexamination requester realized that the attorney or agent of record register address was the proper patent owner address to use, patent practitioners occasionally move from one firm to another, and a potential reexamination requester was then faced with two (or more) § 1.33(c) addresses for the practitioners of record; the requester then had to decide which practitioner to serve.
(3)Finally, the “attorney or agent of record register address” might not be kept up-to-date. In this regard, the OED regularly has mail returned because the register of patent attorneys and agents maintained pursuant to § 11.5 and § 11.11 is not up-to-date. On the other hand, a practitioner or patent owner was, and is, likely to be inclined to keep the § 1.33(a) address up-to-date for prompt receipt of notices regarding the patent. Thus, the correspondence address for the patent provides a better or more reliable option for the patent owner's address than does the address in the register of patent attorneys and agents maintained by OED pursuant to § 11.5 and § 11.11 (which was the reexamination address for the patent owner called for by § 1.33(c) prior to the present revision of § 1.33(c)). As was pointed out in the notice of proposed rule making ( *Revisions and Technical Corrections Affecting Requirements for Ex Parte and Inter Partes Reexamination* , 71 FR 16072 (March 30, 2006) 1305 *Off. Gaz. Pat. Office* 132 (April 25, 2006)), a change to the correspondence address may be filed with the Office during the enforceable life of the patent, and the correspondence address will be used in any correspondence relating to maintenance fees unless a separate fee address has been specified. See § 1.33(d). A review of randomly selected recent listings of *inter partes* reexamination filings reflected that all had an attorney or agent of record for the related patents. There were an average of 18.6 attorneys or agents of record for the patents, and for those attorneys or agents, an average of 3.8 addresses (according to the register of patent attorneys and agents maintained pursuant to § 11.5 and § 11.11). Although for half of the patents, all of the attorneys or agents had the same address, one patent had 77 attorneys and agents of record, and the register reflects 18 different addresses for these practitioners. In such a patent with many different attorneys and agents of record, and many of the practitioners in different states, mailing a notice related to a reexamination proceeding for the patent to the OED register address of an attorney or agent of record in the patented file, even the attorney or agent most recently made of record, is likely to result in correspondence not being received by the appropriate party (prior to the present rule change, the notice would have been mailed to the first-listed attorney or agent of record). Since the correspondence address of the patent file is used for maintenance fee correspondence where a fee address is not specified, patent owners already have an incentive to keep the correspondence address for a patent file up-to-date. Given the choice of relying on either the correspondence address for the patent or the address for the attorney/agent of record per the register of patent attorneys and agents (as was the case prior to the present revision of § 1.33(c)), it is more reasonable to rely on the correspondence address for the patent. The patentee is responsible for updating the correspondence address for the patent, and if the patentee does not, then the patentee appropriately bears the risk of a terminated reexamination prosecution due to the failure to respond to an Office action sent to an obsolete address. Further, use of the correspondence address for the patent provides both a potential reexamination requester and the Office with one simple address to work with, and the requester and the Office should not be confused in the situations where attorneys move from firm to firm (as that has become more common). The correspondence address for the patent is available in public PAIR (Patent Application Information Retrieval) at the Office's Web site *www.uspto.gov* , so that a requester need only click on the address button for the patent, and he/she will know what address to use. *Subpart 2—Reexamination correspondence addressed to the Office:* Section 1.1(c) is revised to prescribe the use of “Mail Stop *Ex Parte* Reexam” for the filing of all *ex parte* reexamination papers (not just *ex parte* reexamination requests), other than correspondence to the Office of the General Counsel pursuant to § 1.1(a)(3) and § 1.302(c). In the final rule *Changes to Implement the 2002 Inter Partes Reexamination and Other Technical Amendments to the Patent Statute,* 68 FR 70996 (Dec. 22, 2003), 1278 *Off. Gaz. Pat. Office* 218 (Jan. 20, 2004), § 1.1(c) was amended to provide separate mail stops for *ex parte* reexamination proceedings and *inter partes* reexamination proceedings. As per that rule making, the mail stop for *ex parte* reexamination proceedings could only be used for the original request papers for *ex parte* reexamination. The new mail stop for *inter partes* reexamination, on the other hand, was to be used for both original request papers and all subsequent correspondence filed in the Office (other than correspondence to the Office of the General Counsel pursuant to § 1.1(a)(3) and § 1.302(c)), because the Central Reexamination Unit
(CRU)was (and still is) the central receiving area for all inter partes reexamination proceeding papers. The CRU has now also become the central receiving area for all ex parte reexamination proceeding papers. Accordingly, the filing of ex parte reexamination papers is now simplified by revising § 1.1(c) to require the use of “Mail Stop *Ex Parte* Reexam” for the filing of all ex parte reexamination papers (original request papers and all subsequent correspondence), other than correspondence to the Office of the General Counsel pursuant to § 1.1(a)(3) and § 1.302(c). Correspondence relating to all reexamination proceedings is best handled at one central location where Office personnel have specific expertise in reexamination because of the unique nature of reexamination proceedings. That central location is the CRU. II. To Prohibit Supplemental Patent Owner Responses to an Office Action Without a Showing of Sufficient Cause The Office is amending § 1.945 to provide that a patent owner supplemental response (which can be filed to address a third-party requester's comments on patent owner's initial response to an Office action) will be entered only where the patent owner has made a showing of sufficient cause as to why the supplemental response should be entered. Pursuant to § 1.937(b), an *inter partes* reexamination proceeding is “conducted in accordance with §§ 1.104 through 1.116, the sections governing the application examination process * * * except as otherwise provided * * *” Thus, a patent owner's response to an Office action is governed by § 1.111. Prior to the revision of § 1.111(a)(2) implemented via the final rule, *Changes To Support Implementation of the United States Patent and Trademark Office 21st Century Strategic Plan,* 69 FR 56482 (Sept. 21, 2004), 1287 *Off. Gaz. Pat. Office* 67 (Oct. 12, 2004) (final rule), a patent owner could file an unlimited number of supplemental responses to an Office action for an *inter partes* reexamination proceeding, thereby delaying prosecution. The changes to § 1.111(a)(2) made in the Strategic Plan final rule, in effect, addressed this undesirable consequence of the rules in reexamination by providing that a reply (or response, in reexamination) which is supplemental to a § 1.111(b) compliant reply will not be entered as a matter of right (with the exception of a supplemental reply filed while action by the Office is suspended under § 1.103(a) or (c)). Section 1.111(a)(2)(i), as implemented in the Strategic Plan final rule, provides that “the Office may enter” a supplemental response to an Office action under certain conditions. Whether or not the supplemental response should be entered, based on the individual circumstances for submission of a supplemental response is a question to be decided by the Office. In order to fully inform both the Office and the requester (so that the requester can provide rebuttal in its comments) as to why patent owner deems a supplemental response to be worthy of entry, § 1.945 has been revised to require a patent owner showing of sufficient cause why entry should be permitted to accompany any supplemental response by the patent owner. The showing of sufficient cause must provide:
(1)A detailed explanation of how the criteria of § 1.111(a)(2)(i) is satisfied;
(2)an explanation of why the supplemental response was not presented together with the original response to the Office action; and
(3)a compelling reason to enter the supplemental response. It is to be noted that in some instances, where there is a clear basis for the supplemental response, this three-prong showing may be easily satisfied. Thus, for example, the patent claim text may have been incorrectly reproduced, where a patent claim is amended in the original response. In such an instance, the patent owner need only point to the § 1.111(a)(2)(i)(E) provision for correction of informalities ( *e.g.* , typographical errors), and state that the incorrect reproduction of the claim was not noted in the preparation of the original response. The compelling reason to enter the supplemental response is implicit in such a statement, as the record for the proceeding certainly must be corrected as to the incorrect reproduction of the claim. This revision permits the entry of a supplemental response to an Office action where there is a valid reason for it, and a showing to that effect is made by the patent owner. At the same time, it provides both the Office and the requester with notice of patent owner's reasons for desiring entry, and it permits the requester to rebut patent owner's stated position. It is to be noted that any requester comments filed after a patent owner response to an Office action must be filed “within 30 days after the date of service of the patent owner's response.” 35 U.S.C. 314(b)(2). Thus, where the patent owner files a supplemental response to an Office action, the requester would be well advised to file any comments deemed appropriate within 30 days after the date of service of the patent owner's supplemental response to preserve requester's comment right, in the event the Office exercises its discretion to enter the supplemental response. (The requester's comments may address whether the patent owner showing is adequate, in addition to addressing the merits of the supplemental response.) If the patent owner's supplemental response is not entered by the Office, then both the supplemental response, and any comments following that supplemental response, will either be returned to parties or discarded as the Office chooses in its sole discretion. If the supplemental response and/or comments were scanned into the electronic Image File Wrapper
(IFW)for the reexamination proceeding, and thus, the papers cannot be physically returned or discarded, then the supplemental response and/or comments entries will be marked “closed” and “non-public,” and they will not constitute part of the record of the reexamination proceeding. Such papers will not display in the Office's image file wrapper that is made available to the public, patent owners, and representatives of patent owners, *i.e.* , they will not display in PAIR (Patent Application Information Retrieval) at the Office's Web site *http://www.uspto.gov.* III. Clarifying Changes as to Reexamination Rule Terminology and Applicability, and Correction of Inadvertent Errors in the Text of Certain Reexamination Rules The Office is making miscellaneous clarifying changes as to the terminology and applicability of the reexamination rules. The rule changes of sub-parts 1 and 2 below were originally proposed in the *Changes To Support Implementation of the United States Patent and Trademark Office 21st Century Strategic Plan,* 68 FR 53816 (Sept. 12, 2003), 1275 *Off. Gaz. Pat. Office* 23 (Oct. 7, 2003) (proposed rule) (hereinafter the Strategic Plan Proposed Rule). The Office did not proceed with those changes in the final rule *Changes To Support Implementation of the United States Patent and Trademark Office* 21st Century Strategic Plan, 69 FR 56482 (Sept. 21, 2004), 1287 *Off. Gaz. Pat. Office* 67 (Oct. 12, 2004) (final rule) (hereinafter the Strategic Plan Final Rule). The Office then re-presented those proposals in *Revisions and Technical Corrections Affecting Requirements for Ex Parte and Inter Partes Reexamination,* 71 FR 16072 (March 30, 2006) 1305 *Off. Gaz. Pat.* Office 132 (April 25, 2006) (proposed rule) after further consideration and in view of the changes made by the final rule *Rules of Practice Before the Board of Patent Appeals and Interferences,* 69 FR 49960 (Aug. 12, 2004), 1286 Off. Gaz. Pat. Office 21 (Sept. 7, 2004) (final rule) (hereinafter, the Appeals final rule). The essential substance of the changes set forth in sub-parts 1 and 2, remains as originally proposed in the Strategic Plan Proposed Rule. The four types (sub-parts) of revisions are explained as follows: *Sub-part 1.* The rules are amended to clarify that “conclusion” of a reexamination “proceeding” takes place when the reexamination certificate is issued and published, while “termination” of the “prosecution” of the proceeding takes place when the patent owner fails to file a timely response in an *ex parte* or *inter partes* reexamination proceeding, or a Notice of Intent to Issue Reexamination Certificate
(NIRC)is issued, whichever occurs first. This distinction is important, because a reexamination prosecution that is terminated may be reopened at the option of the Director where appropriate. For example, a rejection that was withdrawn during the proceeding may be reinstated after the prosecution has terminated, where the propriety of that rejection has been reconsidered. In contrast, a reexamination proceeding that has been concluded is not subject to being reopened. After the reexamination proceeding has been concluded, the Office is not permitted to reinstate the identical ground of rejection in a subsequent reexamination proceeding, when the same question of patentability raised by the prior art in the concluded proceeding is the basis of the rejection. See section 13105, part (a), of the Patent and Trademark Office Authorization Act of 2002, enacted in Public Law 107-273, 21st Century Department of Justice Appropriations Authorization Act, 116 Stat. 1758 (2002). This distinction between terminating the prosecution of the reexamination proceeding, and the conclusion of the reexamination proceeding, was highlighted by the Federal Circuit decision of *In re Bass,* 314 F.3d 575, 577, 65 USPQ2d 1156, 1157 (Fed. Cir. 2003), wherein the court indicated that : Until a matter has been completed, however, the PTO may reconsider an earlier action. *See In re Borkowski,* 505 F.2d 713, 718, 184 USPQ 29, 32-33 (CCPA 1974). A reexamination is complete upon the statutorily mandated issuance of a reexamination certificate, 35 U.S.C. 307(a); the NIRC merely notifies the applicant of the PTO's intent to issue a certificate. A NIRC does not wrest jurisdiction from the PTO precluding further review of the matter. Each of the Notice of Intent to Issue Reexamination Certificate cover sheet forms ( *ex parte* reexamination Form PTOL 469 and *inter partes* reexamination Form PTOL 2068) specifically states (in its opening sentence) that “[p]rosecution on the merits is (or remains) closed in this * * * reexamination proceeding. This proceeding is subject to reopening at the initiative of the Office, or upon petition.” This statement in both forms makes the point that the NIRC terminates the prosecution in the reexamination proceeding (if prosecution has not already been terminated, *e.g.* , via failure to respond), but does not (terminate or) conclude the reexamination proceeding itself. Rather, it is the issuance and publication of the reexamination certificate that concludes the reexamination proceeding. The rules are revised accordingly. Definitional Consideration: In the Strategic Plan Proposed Rule, the terminology used was that a patent owner's failure to file a timely response in a reexamination proceeding (and the issuance of the NIRC) would “conclude” the prosecution of the reexamination proceeding, but would not terminate the reexamination proceeding, and the issuance and publication of a reexamination certificate would “terminate” the reexamination proceeding. This usage of “conclude” and “terminate” has been reconsidered, however, and the usage of the terms has been reversed to be consistent with the way the Office defines “termination,” as can be observed in the recent Appeals final rule ( *supra.* ). It is to be noted that the patent statute, in 35 U.S.C. 307(a), states for *ex parte* reexamination: “In a reexamination proceeding under this chapter, when the time for appeal has expired or any appeal proceeding has *terminated,* the Director will issue and publish a certificate canceling any claim of the patent finally determined to be unpatentable, confirming any claim of the patent determined to be patentable, and incorporating in the patent any proposed amended or new claim determined to be patentable.” (Emphasis added). 35 U.S.C. 316 contains an analogous statement for *inter partes* reexamination. Thus, after the appeal proceeding in the reexamination is terminated (which terminates the prosecution in the reexamination), the reexamination proceeding is concluded by the issuance and publication of the reexamination certificate. It is further observed that in the Appeals final rule, § 1.116(c) states that “[t]he admission of, or refusal to admit, any amendment after a final rejection, a final action, an action closing prosecution, or any related proceedings will not operate to relieve the * * * reexamination prosecution from termination under § 1.550(d) or § 1.957(b) * * *.” The use of “termination of the prosecution” is consistent with the presentation in § 1.116(c) in the Appeals final rule. As a further indication in the Appeals final rule, § 1.197(a) discusses the passing of jurisdiction over an application or patent under *ex parte* reexamination proceeding to the examiner after a decision by the Board of Patent Appeals and Interferences, and § 1.197(b) then states that “[p]roceedings on an application are considered terminated by the dismissal of an appeal or the failure to timely file an appeal to the court or a civil action (§ 1.304) except * * *.” Thus, the termination (of the appeal) does not signify the completion of an application or reexamination proceeding. Rather, the application then continues until patenting or abandonment, and the reexamination continues until issuance (and publication) of the reexamination certificate; at that point these proceedings are concluded. The above changes are directed to §§ 1.502, 1.530(l)(2), 1.550, 1.565(d), 1.570, 1.902, 1.953, 1.957, 1.958, 1.979, 1.991, 1.997, and 41.4. *Sub-part 2.* The reexamination rules are revised to state that the reexamination certificate is “issued and published.” Prior to this revision, the rules referred to the issuance of the reexamination certificate, but failed to refer to the publication of the certificate. Pursuant to 35 U.S.C. 307(a), “when the time for appeal has expired or any appeal proceeding has terminated, the Director will *issue and publish* a certificate * * *” (emphasis added) for an *ex parte* reexamination proceeding. Likewise, for an *inter partes* reexamination, 35 U.S.C. 316(a) states that “when the time for appeal has expired or any appeal proceeding has terminated, the Director shall *issue and publish* a certificate” (emphasis added). Any reexamination proceeding is concluded when the reexamination certificate has been issued and published. It is at that point in time that the Office no longer has jurisdiction over the patent that has been reexamined. Accordingly, the titles of §§ 1.570 and 1.997, as well as paragraphs
(b)and (d), are now revised to track the language of 35 U.S.C. 307 and 35 U.S.C. 316, and refer to both issuance and publication, to thereby make it clear in the rules when the reexamination proceeding is concluded. The other reexamination rules containing language referring to the issuance of the reexamination certificate are likewise revised. These changes are directed to §§ 1.502, 1.530, 1.550, 1.565(c), 1.570, 1.902, 1.953, 1.957, 1.979, and 1.997. *Sub-part 3.* In § 1.137, the introductory text of paragraphs
(a)and
(b)previously stated “a reexamination *proceeding* terminated under §§ 1.550(d) or 1.957(b) or (c).” [Emphasis added]. As pointed out in the discussion of the first sub-part, when the patent owner fails to timely respond, it is actually the *prosecution* of the reexamination that is terminated under § 1.550(d) for *ex parte* reexamination, or is terminated under § 1.957(b) for *inter partes* reexamination. For the § 1.957(c) scenario, however, the *prosecution* of the *inter partes* reexamination proceeding is not terminated when the patent owner fails to timely respond pursuant to § 1.957(c). Rather, an Office action is issued to permit the third party requester to challenge the claims found patentable (as to any matter where the requester has preserved the right of such a challenge), and the prosecution is “limited to the claims found patentable at the time of the failure to respond, and to any claims added thereafter which do not expand the scope of the claims which were found patentable at that time.” Section 1.957(c). Accordingly, the introductory text of § 1.137(a), and that of § 1.137(b), is now revised to provide for the situation where the prosecution is “limited” pursuant to § 1.957(c) (and the prosecution of the reexamination is not “terminated”). Also, § 1.137(e) is revised consistently with § 1.137(a) and § 1.137(b). Further, conforming changes are made to §§ 1.8 and 41.4, which are revised to contain language that tracks that of §§ 1.137(a) and 1.137(b). It is noted that § 1.957(c) does, in fact, result in the “terminating” of reexamination prosecution as to the non-patentable claims (under § 1.957(b), on the other hand, prosecution is terminated *in toto* ). It would be confusing, however, to refer to a termination of reexamination prosecution in the § 1.957(c) scenario, since the limited termination as to the non-patentable claims could easily be confused with the termination of the entirety of the prosecution of § 1.957(b). Accordingly, the § 1.957(c) “limited” scope of prosecution to the scope of the claims found patentable is the language deemed better suited for use in the rules. *Sub-part 4.* Section 1.8(b) is revised to explicitly provide a remedy for an *inter partes* reexamination proceeding where correspondence was mailed or transmitted in accordance with paragraph § 1.8(a) by a patent owner, and pursuant to § 1.957(c), the reexamination prosecution is not terminated, but is rather “limited to the claims found patentable at the time of the failure to respond, and to any claims added thereafter which do not expand the scope of the claims which were found patentable at that time.” Pursuant to the previous version of § 1.8(b), a remedy was provided for having correspondence considered to be timely filed, where correspondence was mailed or transmitted in accordance with paragraph § 1.8(a) but not timely received in the Office, and “the application [was] held to be abandoned or the proceeding is dismissed, *terminated* , or decided with prejudice.” [Emphasis added.] It could have appeared that § 1.8(b) did not apply to the § 1.957(c) scenario where prosecution is “limited” rather than “terminated.” Therefore, § 1.8(b) is revised to explicitly apply the § 1.8(b) remedy in the § 1.957(c) scenario as well. In addition, the certificate of mailing and transmission is available to a third party requester filing papers in an *inter partes* reexamination. See MPEP 2624 and 2666.05. Just as a § 1.8(b) remedy is (and was) provided for the patent owner in the § 1.957(b) and § 1.957(c) scenarios, § 1.8(b) is now revised to explicitly provide a remedy for the requester in the § 1.957(a) scenario. *Sub-part 5.* The final rule *Rules of Practice Before the Board of Patent Appeals and Interferences* 69 FR 49960 (Aug. 12, 2004), 1286 *Off. Gaz. Pat. Office* 21 (Sept. 7, 2004) (final rule) revised the reexamination appeal rules to remove and reserve §§ 1.961 to 1.977. In addition, §§ 1.959, 1.979, 1.993 were revised and new §§ 41.60 through 41.81 were added. Revisions of some of the reexamination rules referring to these sections were inadvertently not made, and have now been made via this Notice. Further, §§ 1.510(f) and 1.915(c) are revised to change § 1.34(a) to § 1.34, to update the two sections to conform with the revision of § 1.34 made in final rule *Revision of Power of Attorney and Assignment Practice* 69 FR 29865 (May 26, 2004) (final rule). In addition, in the final rule *Clarification of Filing Date Requirements for Ex Parte and Inter Partes Reexamination Proceedings* , 71 FR 44219 (Aug. 4, 2006) (final rule), the following errors appear. At page 44222, it is stated: “If after receiving a ‘Notice of Failure to Comply with * * * Reexamination Request Filing Requirements,' the requester does not remedy the defects in the request papers that are pointed out, then the request papers will not be given a filing date, *and a control number will not be assigned* * * *. If any identified non-compliant item has not been corrected, then a filing date ( *and a control number* ) will not be assigned to the request papers.” [Emphasis added] The Office will, however, be assigning control numbers and receipt dates to requests for reexamination that are not compliant with the reexamination filing date requirements. Thus, the text should read, and is hereby corrected to read: “If after receiving a ‘Notice of Failure to Comply with * * * Reexamination Request Filing Requirements,' the requester does not remedy the defects in the request papers that are pointed out, then the request papers will not be given a filing date. The simplest case * * *. If any identified non-compliant item has not been corrected, then a filing date will not be assigned to the request papers.” *Comments Received:* The Office published a notice proposing the changes to *ex parte* and *inter partes* reexamination practice for comment. See *Revisions and Technical Corrections Affecting Requirements for Ex Parte and Inter Partes Reexamination* , 71 FR 16072 (March 30, 2006) 1305 *Off. Gaz. Pat. Office* 132 (April 25, 2006) (hereinafter, the “Revisions and Technical Corrections proposed rule”). In response to the Revisions and Technical Corrections proposed rule, the Office received four sets of written comments—one from an intellectual property organization, two from corporations, and one from a law firm. There were no comments received from individual patent practitioners or others. The following four proposals were set forth in the Revisions and Technical Corrections proposed rule: *Proposal I:* To newly provide for a patent owner reply to a request for an *ex parte* reexamination or an *inter partes* reexamination prior to the examiner's decision on the request. *Proposal II:* To prohibit supplemental patent owner responses to an Office action in an *inter partes* reexamination without a showing of cause. *Proposal III:* To designate the correspondence address for the patent as the correct address for all notices, official letters, and other communications for patent owners in an *ex parte* reexamination or an *inter partes* reexamination. Also, to simplify the filing of reexamination papers by providing for the use of “Mail Stop *Ex parte* Reexam” for the filing of all *ex parte* reexamination papers (not just *ex parte* reexamination requests), other than certain correspondence to the Office of the General Counsel. *Proposal IV:* To make miscellaneous clarifying changes as to the terminology and applicability of the reexamination rules, and to correct inadvertent errors in the text of certain reexamination rules. After reviewing the comments, this notice of final rule making:
(a)Adopts Proposals II—IV of the Revisions and Technical Corrections proposed rule for revision of the rules of practice, while making only stylistic and non-substantive changes to the relevant rules, which changes are discussed below, and
(b)does not adopt Proposal I of the Revisions and Technical Corrections proposed rule. The comments taking issue with the proposals, and the Office's responses to those comments, now follow. Comments generally in support of a change that has been adopted are only discussed in some instances. I. Comments as to Proposal I of the Revisions and Technical Corrections Proposed Rule Proposal I, as set forth in the Revisions and Technical Corrections proposed rule, was to newly provide for a patent owner reply to a request for reexamination, prior to the Office's decision on the request. Comments against implementing the proposal in any form, were advanced by a major intellectual property organization and one of the two corporations that commented on the proposal. One comment, which was advanced by the other corporation that commented, was in favor of implementing the proposal even more liberally in favor of the patent owner than was proposed. *1. The corporate comment in favor of implementation of Proposal I:* This comment states that commenter believes this proposed rule change allows for greater input from involved parties before an Examiner determines whether reexamination should be declared, and that the greater input would further the goal of a fair and efficient, well-informed reexamination. The comment further states that the proposed rule change would allow patentees to inform the Patent Office of facts that may bear upon the decision on the reexamination request, such as the outcome of litigation involving prior art submitted to the Patent Office with the request, and other relevant factors. The comment then goes on to request “further clarification and certain modifications to the proposed rule change.” The commenter urges that patent owner's reply to a Director-ordered examination should be allowed. The commenter asserts that the discarding/returning of a non-compliant patent owner reply to a request for reexamination (without a chance for re-submission) seems unduly harsh, and is unlike other Office rules that allow a submission to be corrected if not in proper form. The commenter further requests that various options as to relief from the 50-page limit for the reply be implemented. Finally, the commenter suggests implementation of the Electronic Filing System
(EFS)to expedite submission of the reply to the request. 2. *The intellectual property organization comment opposed to implementation of Proposal I:* The commenter points out that evidence has not been proffered to suggest a need for a patent owner to have an opportunity to reply to a request for reexamination before a decision has been made by the Office. It is asserted that no evidence has been advanced as to granted reexaminations that should not have been granted based on incomplete/inaccurate information, or because of the allegedly low statutory threshold of a “substantial new question of patentability” to order reexamination, or because of an examiner inexperienced in reexamination practices. The commenter later provides a statistical analysis to show that the Office's reexamination statistics do not justify implementation of Proposal I without such evidence. The comment states that the Office has made a substantial improvement in the handling of reexamination proceedings by creating the new Central Reexamination Unit
(CRU)dedicated to these proceedings, resulting in better management of reexamination proceedings, more timely, detailed and thorough Office actions, and an increase of the quality of the work product. Given this, it seems premature to introduce the opportunity for a patent owner to file a reply before the Office makes a decision on the request before it is determined that the expertise being applied in the new reexamination unit will not avoid or at least minimize any problem that is identified. In addition, there is a concern that placing additional and perhaps unnecessary burdens on the new CRU will inhibit either the quality or special dispatch of the work being performed by the CRU. The comment identifies a “significant concern with the proposed practice * * * that it has the potential to significantly alter the balance between the patent owner and a third party in *ex parte* reexaminations in further favor of the patent owner.” The comment continues,—“The *ex parte* reexamination proceeding is recognized as being one that is biased heavily in favor of the patent owner by excluding participation by the third party after the request is filed (unless the patent owner files a statement after the request is granted that would trigger only one additional opportunity for the third party to reply to any statement filed by the patent owner) * * *. [U]nder the proposal, the patent owner effectively would have an opportunity to file a patent owner's statement before the PTO decision on the request and thereafter exclude the third party from further participation in the proceeding by simply not filing any patent owner's statement.” The comment concludes that the Office “should not bias the *ex parte* proceeding in further favor of the patent owner, and should not take steps that will create additional and unnecessary burdens on the reexamination unit that are likely to further weaken the incentives for third parties to provide useful information relevant to patentability to the [Office].” The commenter then adds that “[e]ven in an *inter partes* proceeding, we are not aware of any justification for unnecessarily adding to the burdens of the reexamination unit or providing opportunities for the patent owner to delay the initiation of *inter partes* reexamination.” *3. The corporate comment opposed to implementation of Proposal I:* The comment points out some generally favorable aspects of Proposal I, but counters with a recognition that “the impact of the issuance and enforcement of potentially invalid patents [is] so detrimental to the public as to warrant giving the requester every opportunity to proffer prior art to the Office for its consideration even though some inefficiencies may result.” Commenter expresses a concern that “permitting the patent owner to respond to the requester's comments before a reexamination determination is made” could “have the additional unintended affect [ *sic* , effect] of going beyond merely addressing whether or not there is a substantial new question of patentability, thus discouraging third party requesters from using the reexamination process.” The commenter notes the potential that the proposal “will delay the issuance of orders because of the time spent by the examiner in reviewing the patent owner's comments. It will also begin an unofficial ‘mini' reexamination proceeding before the examiner actually has made a decision to order reexamination. That is, it will be difficult for the examiner to avoid considering why the subject matter as claimed was not anticipated or rendered obvious by the prior art cited in the request in view of the patent owner's reply before the order granting reexamination is made. This will result in the discouraging of third party requester's [sic] from utilizing the reexamination process because of the perception that the Office may unintentionally address ‘the merits' rather than merely determining whether or not the requester raised a substantial new question of patentability.” The commenter expresses a final concern that “allowing patent owner comments may actually cause an increase in petition filings. Ultimately, this churn between the Office and the requester could create a different source of Office delays as well as expense for the requester before the order even issues.” The commenter further states: “Particularly for requests worthy of proceeding to reexamination, the Office should take care to ensure that patent owner's response does not delay issuance of the order and reexamination process.” Proposal I is not adopted for the detailed reasons set forth in the intellectual property organization and corporate comments opposed to implementation of Proposal I. Reexamination practice will, however, in the future be re-evaluated to determine whether this proposal should be reconsidered at a later date. The corporate comment opposed to implementation of Proposal I provided suggestions to address some of its concerns, and these will now be addressed. The suggestions include strictly limiting the patent owner's response with review to ensure that the patent owner does not “comment on the merits, rather than just the issue of whether a new question of patentability is raised” and “placing a high burden on the patent holder to overcome a request, such as by clear and convincing evidence.” Such suggestions, however, would unduly complicate and prolong the reexamination proceeding with a requirement for a highly subjective determination as to what would be, or would not be, prohibited in a patent owner's direct reply to a reexamination request. The commenter that favored implementing Proposal I suggested implementing the proposal more liberally in favor of the patent owner than was proposed by the Office. Such points are, however, moot, as the proposal is not being adopted. The following is also added with respect to the suggestions made. As to the assertion that the discarding/returning of a non-compliant patent owner reply without a chance for re-submission is unlike other Office rules that allow a submission to be corrected if not in proper form, in this instance there is a three-month statutory period running against the Office to decide the request. A reply correction cycle would make it unduly burdensome for the Office to comply with the three-month statutory mandate. As to the various options as to liberalizing the 50-page limit for the reply suggested by commenter, this too would impact on the Office's ability to comply with the three-month statutory mandate. As to the suggestion for a patent owner reply to a Director-ordered reexamination, the following is observed: After reexamination is ordered at the initiative of the USPTO Director, the patent owner does in fact have the right to reply via a patent owner's statement under § 1.530. This right of “reply” takes place before the proceeding enters into the examination stage, and is essentially what the commenter is requesting. As to a notification to patent owner prior to reexamination being ordered at the initiative of the USPTO Director, which the commenter also refers to, there is no official proceeding at that point in which to notify the patent owner of the intent to initiate a reexamination. Also, if such a notice of intent to initiate a reexamination were issued as suggested by the commenter, that would be tantamount to ordering reexamination since a substantial new question of patentability would be needed in each case. The effect would be the same as initiating reexamination followed by a patent owner's statement under § 1.530 filed prior to the examination stage of the proceeding, which is provided for in the current practice. Further, the suggestion also is subject to the above-discussed concerns raised in the intellectual property organization and corporate comments opposed to implementation of Proposal I. II. Comments as to Proposal II of the Revisions and Technical Corrections Proposed Rule Proposal II, as set forth in the Revisions and Technical Corrections proposed rule, was to prohibit a supplemental patent owner response to an Office action (which can be filed to address a third party requester's comments on patent owner's initial response to an Office action) without an adequate showing of sufficient cause for entry. This would be implemented by revising § 1.945. Three comments addressed this proposal. 1. The law firm comment expresses a belief that the proposed revision to § 1.945 would achieve the Office's purpose of
(1)providing assistance to the Office in exercising its discretion to enter supplemental replies pursuant to § 1.111(a)(2) in *inter partes* reexamination proceedings, and
(2)discouraging patent owners from filing superfluous supplemental replies that delay the proceedings. The commenter, however, raises certain concerns as to the proposal. Commenter correctly points out that, pursuant to the proposal, the showing of sufficient cause would be required to provide:
(1)A detailed explanation of how the criteria of § 1.111(a)(2)(i) is satisfied;
(2)an explanation of why the supplemental response could not have been presented together with the original response to the Office action; and
(3)a compelling reason to enter the supplemental response. The commenter then asserts that an explanation of why the supplemental response “could not” have been presented together with the original response is not workable. The commenter suggests use of “was not” in place of “could not” to address the concern. This point is well taken and is adopted. Once the patent owner explains why the supplemental response “was not” presented together with the original response, the Office can evaluate the reason in terms of the equities it provides. Thus, if the patent owner was reasonably not aware of a certain fact or circumstance that generated patent owner's basis for the supplemental response, that will be a factor to be balanced against the delay in the proceeding and additional resources to be expended by the requester and the Office. Commenter also asserts that there is no guidance of what would be a “compelling reason” to enter the supplemental response. This point is addressed here in terms of equities. A patent owner would need to show that its position would be prejudiced by the lack of entry of a supplemental response in a way that cannot be addressed later in the proceeding, and that the adverse effect on patent owner is significant enough to counter-balance the delay in the proceeding and additional resources to be expended by the requester and the Office. Thus, if the patent owner simply was not aware of an argument, or even rebuttal art, that the requester submitted in commenting on the Office action and patent owner's response, a supplemental response will not be entered for the purpose of addressing the argument, or rebuttal art. The purpose of the response is to respond to the Office action, not to reply to the requester or to reshape the patent owner's response after obtaining requester's input. Likewise, if the purpose of the supplemental response is merely to reconfigure claims without making a material change to the substance, or to add some claims for additional scope of protection, such would not provide a compelling reason. 2. The intellectual property organization comment supports implementation of Proposal II. Commenter, however, requests clarification as follows: “If a patent owner files a supplemental response to a PTO action in an *inter partes* reexamination proceeding, we understand that it must be accompanied by a showing of sufficient cause. We further understand that the filing of that supplemental response, whether or not accompanied by an appropriate showing and whether or not the PTO ultimately enters the supplemental response, will trigger an opportunity for the third party to file written comments that may address both the supplemental response and any showing of sufficient cause. Please confirm whether our understanding is correct.” In response, the following is provided. It is mandated by statute that any requester comments filed after a patent owner response to an Office action must be filed “within 30 days after the date of service of the patent owner's response.” 35 U.S.C. 314(b)(2). Thus, where the patent owner files a supplemental response to an Office action, the requester would be well advised to file any comments deemed appropriate (to address the merits and/or showing of sufficient cause) within 30 days after the date of service of the patent owner's supplemental response, in case the Office exercises its discretion to enter the supplemental response. If the supplemental response is not entered, both the supplemental response and any comments following that supplemental response will either be returned to parties or discarded as the Office chooses in its sole discretion. If the supplemental response and/or comments were scanned into the electronic Image File Wrapper
(IFW)for the reexamination proceeding, and thus, the papers cannot be physically returned or discarded, then the supplemental response and/or comments entries will be marked “closed” and “non-public,” and they will not constitute part of the record of the reexamination proceeding. Such papers will not display in the Office's image file wrapper that is made available to the public, patent owners, and representatives of patent owners, *i.e.* , they will not display in PAIR at the Office's Web site *http://www.uspto.gov* . 3. One of the two corporate comments opposes Proposal II. Commenter states that “ ‘compelling reasons’ for entering a supplemental reply is not the standard set by sections 111(a)(2)(i)(A)-(F), and no justification has been suggested for why a patentee should be subjected to such an obstacle. We submit that the undefined but presumably considerable ‘compelling reason' standard is unnecessary, and will unfairly prevent patentees from presenting information to the Patent Office that will assist in achieving a correct outcome in reexaminations. This will reduce the quality and reliability of reexamination decisions, and thus this proposed rule should not be implemented.” The comment is noted, but it is not persuasive in view of the following: Sections 1.111(a)(2)(i)(A) through (a)(2)(i)(F) were implemented with a focus on applications for patents, in which the prosecution is *ex parte* . For reexamination, however, there is a unique statutory mandate for special dispatch, which calls for measures to minimize delays in the proceeding. In an *ex parte* reexamination proceeding, delay brought about by a supplemental patent owner response can be acceptable where the delay is insignificant, in order to achieve the benefits to which the commenter alludes. In *inter partes* reexamination, however, each time the patent owner supplementally responds, the requester may, be statute, respond within a given time period; the Office must then process a whole new set of papers for the parties. Accordingly, the delay in *inter partes* reexamination is magnified, when the patent owner supplementally responds. The potential for extension of the prosecution each time the patent owner files a supplemental patent owner response is unique to *inter partes* reexamination, and will not be permitted without sufficient cause having been shown. The Office has been receiving supplemental patent owner responses purporting to meet the conditions of § 1.111(a)(2)(i)(F), which have resulted in undue delays in the proceedings, requiring the Office to evaluate whether such supplemental responses comply with any of the provisions of §§ 1.111(a)(2)(i)(A) through (a)(2)(i)(F). Furthermore, the reexamination statute gives the third party requester an absolute right to file comments on the patent owner's response. Accordingly, the Office is forced to evaluate two sets of papers from each party, causing yet further delay. In addition, the Office has seen patent owners file multiple supplemental responses causing dramatic delays in the administrative process (a typical situation is discussed in the next paragraph). While it is not uncommon for adverse parties to want to have “the last word,” the Office needs to set reasonable limits in order to control the administrative process, as well as comply with the statutory mandate for special dispatch in *inter partes* reexamination. A typical situation is as follows. A patent owner wishes to respond to the requester's comments on the patent owner's response, and the patent owner thus files a supplemental response to address the requester's comments. The requester may then choose to supplementally comment on patent owner's supplemental response. Multiple iterations of patent owner responses addressing requester comments followed by further requester comments may then take place. The Office has experienced this situation in a number of proceedings, and the Office has needed to address each set of supplemental responses and supplemental comments—to first ascertain why patent owner filed the supplemental response and the equities presented by the parties, and then to decide whether to either close from public view (or return) the papers, or to enter them, and the Office must perform all the attendant processing. The present rule revision requires the patent owner to state, up front, the basis for seeking entry of a supplemental response, and it gives the requester an opportunity for rebuttal. This provides the Office with a mechanism for immediately weeding out any inappropriate supplemental response. Also, the requirement that patent owner provide the basis for entry will alert the patent owner to situations where no appropriate basis exists, such that patent owner will realize it should not make a submission. This will save
(a)the patent owner the effort of making the submission, only to have it returned,
(b)the requester the effort of making a supplemental comment, only to have it returned, and
(c)the Office from having to expend the resources to address and process the submissions. It is further to be noted that, in a litigation setting, the courts have established controls to limit the extent of briefing, and the Office is likewise justified in limiting the parties' responses to an Office action. Moreover, regardless of how many patent owner responses are permitted, it should be noted that the *inter partes* reexamination statute (35 U.S.C. 314) specifically contemplates that the requester has the right to respond to every patent owner submission, thereby giving the requester “the last word.” There is no intent in the statute to provide the patent owner with a chance to file a “last word” supplemental response to address the requester's comments. Indeed, 35 U.S.C. 314(b)(2) ends the iteration of addressing the Office action by stating that “the third-party requester shall have one opportunity to file written comments addressing issues raised by the action of the Office or the patent owner's response thereto.” As a final point, 35 U.S.C. 314(b)(1) provides the patent owner with the ability *to respond to what the Office action says,* not to the requester's comments, and that continues to be available in the proceeding. Such is the statutory framework for providing prosecution by parties, while, at the same time, maintaining the requirement for special dispatch in the *inter partes* reexamination proceeding. Proposal II has been adopted in revised form—an explanation is required as to why the supplemental response “was not” presented together with the original response to the Office action, rather than the proposed explanation of why the supplemental response “could not” have been presented. III. Comments as to Proposal III of the Revisions and Technical Corrections Proposed Rule The second part of Proposal III, as set forth in the Revisions and Technical Corrections, was to simplify the filing of reexamination papers by providing for the use of “Mail Stop *Ex Parte* Reexam” for the filing of all *ex parte* reexamination papers (not just *ex parte* reexamination requests), other than certain correspondence to the Office of the General Counsel. No issues were raised by the comments as to that part of Proposal III. The first part of Proposal III, as set forth in the Revisions and Technical Corrections proposed rule, was to designate the correspondence address for the patent as the correct address for all notices, official letters, and other communications for patent owners in a reexamination. It was that part of Proposal III that was commented upon. 1. One of the corporate comments supports the Proposal II rule change as to the designation of the correspondence address for the patent as the correct address for communications for patent owners in a reexamination, and recognizes the need to ease the burden on the Office in corresponding with patent owners in reexamination proceedings. Commenter, however, strongly encourages the Office to promptly post all correspondence electronically since “the correspondence address will be the only address used for mailings by the Office” under the proposal, “and no double correspondence will be sent.” In response, all correspondence for a reexamination proceeding is in fact promptly posted electronically in the Office's Image File Wrapper
(IFW)for that proceeding, and is available via the Office's public PAIR (Patent Application Information Retrieval) system. One of the benefits resulting from the Office's somewhat recent creation of the Central Reexamination Unit is that reexamination correspondence is now mailed by a central unit dedicated solely to reexamination, which is in a position to ensure prompt entry of correspondence into the IFW. 2. The intellectual property organization comment likewise supports Proposal III. Commenter, however, identifies a concern that “the Office states that it will automatically change the correspondence address to that of the patent file.” Commenter suggests that, despite the rule revision, the correspondence address of the patent owner and any third party, should be maintained by the Office as “whatever correspondence address has been established,” and “a specific requirement of the patent owner to comply with the adopted regulation” should be made. This suggestion is presented to reduce “the risk of termination of the prosecution of a reexamination proceeding by sending correspondence to the patent owner at an address different than has already been established in the pending reexamination proceeding.” This suggestion is not adopted; however, for *inter partes* reexamination proceedings, an accommodation will be made by the Office as is discussed below. Retaining the old attorney or agent of record register address as that of the patent owner's correspondence address in the face of the rule change which mandates otherwise can only lead to uncertainty and confusion. This would result in a situation where some correspondence addresses are done one way and others are done another way. Third party requesters would be placed in a quandary as to which address to serve. The same would be true for parties serving papers under MPEP 2286 or 2686 (notifications of existence of prior or concurrent proceedings). Retaining the address used for correspondence in the reexamination proceeding different from that used during the pendency of applications (as well as post-grant correspondence in patents maturing from such applications) will also make it difficult for members of the public reviewing the patent and its associated files and materials. Furthermore, searching out all the instances where the correspondence address would be in need of a change in view of the “adopted regulation” in order to send the suggested “specific requirement of the patent owner to comply with the adopted regulation” would place a huge and undue burden on Office resources. The *ex parte* reexamination data captured by the Office through Sept. 30, 2006, will be used to illustrate this. There are 1,944 *ex parte* reexamination proceedings pending. The Office would need to check to see which of the 8,252 total *ex parte* reexamination proceedings are the 1,944 pending reexamination proceedings. Then, Notices would need to be sent out for all of them, and the Office would also need to do the PALM work. For *inter partes* reexamination proceedings, however, there are approximately 200 pending proceedings. Accordingly, the Office intends to issue, in the near future, a notice in all pending *inter partes* reexamination proceedings, notifying the parties about this rule change and the patent owner's correct address. It is to be noted that requester paper service on patent owner occurs far more often in *inter partes* reexamination, than such service on patent owner in *ex parte* reexamination. Thus, the major impact of commenter's concern in this area has been addressed. IV. Proposal IV has been adopted as it was proposed—none of the comments took issue with any aspect of this proposal. Section-by-Section Discussion *Section 1.1:* Section 1.1(c)(1) is amended to provide for use of “Mail Stop *Ex Parte* Reexam” for the filing of all *ex parte* reexamination papers other than certain correspondence to the Office of the General Counsel. Paragraph (c)(1) of § 1.1(c) has been changed from its prior reading “Requests for *ex parte* reexamination (original request papers only) should be additionally marked ‘Mail Stop *Ex Parte* Reexam’ ” to now read “Requests for *ex parte* reexamination (original request papers) and all subsequent *ex parte* reexamination correspondence filed in the Office, other than correspondence to the Office of the General Counsel pursuant to § 1.1(a)(3) and § 1.302(c), should be additionally marked ‘Mail Stop *Ex Parte* Reexam.’ ” *Section 1.8:* Section 1.8(b) is amended to recite “In the event that correspondence is considered timely filed by being mailed or transmitted in accordance with paragraph
(a)of this section, but not received in the * * * Office after a reasonable amount of time has elapsed from the time of mailing or transmitting of the correspondence * * * or the prosecution of a reexamination proceeding is terminated pursuant to § 1.550(d) or § 1.957(b) or limited pursuant to § 1.957(c), or a requester paper is refused consideration pursuant to § 1.957(a), the correspondence will be considered timely if the party who forwarded such correspondence:”. The language “the prosecution of a reexamination proceeding is terminated” (for § 1.550(d) and § 1.957(b)) clarifies that the reexamination proceeding is not concluded under § 1.550(d) or § 1.957(b), but rather, the prosecution of the reexamination is terminated. The language “or the prosecution of a reexamination proceeding is * * * limited pursuant to § 1.957(c)” more appropriately sets forth that the § 1.8(b) remedy is applied to avoid the § 1.957(c) consequences of a patent owner's failure to respond in an *inter partes* reexamination. The language “or a requester paper is refused consideration pursuant to § 1.957(a)” more appropriately sets forth that the § 1.8(b) remedy is applied to avoid the § 1.957(a) consequences of a failure to file a requester paper in an *inter partes* reexamination. *Section 1.17:* Sections 1.17(l) and
(m)are revised to clarify that a reexamination proceeding is not concluded under § 1.550(d) or § 1.957(b), but rather, the prosecution of a reexamination is terminated under § 1.550(d) or § 1.957(b), or reexamination prosecution is limited under § 1.957(c). No change is made as to the fee amounts. *Section 1.33:* Section 1.33(c) is revised to replace the prior recitation of “the attorney or agent of record (see § 1.32(b)) in the patent file at the address listed on the register of patent attorneys and agents maintained pursuant to §§ 11.5 and 11.11 or, if no attorney or agent is of record, to the patent owner or owners at the address or addresses of record” with “correspondence address.” As § 1.33(c) is now revised, all notices, official letters, and other communications for the patent owner or owners in a reexamination proceeding will be directed to the correspondence address for the patent. As previously discussed, a change to the correspondence address may be filed with the Office during the enforceable life of the patent. *Section 1.137:* Sections 1.137(a), (b), and
(e)are amended to more appropriately set forth the § 1.550(d) and § 1.957(b) consequences of the patent owner's failure to make a required response. To do so, the introductory text of § 1.137(a) and § 1.137(b) is now revised to recite “a reexamination *prosecution* becoming terminated under §§ 1.550(d) or 1.957(b)” (emphasis added), rather than the previous recitation of “a reexamination *proceeding* becoming terminated under §§ 1.550(d) or 1.957(b)” (emphasis added). In § 1.137(e), “a terminated *ex parte* reexamination prosecution” and “a terminated *inter partes* reexamination prosecution or an *inter partes* reexamination limited as to further prosecution” are inserted in place of the previous recitation of “a terminated *ex parte* reexamination proceeding” and “a terminated *inter partes* reexamination proceeding,” respectively. Sections 1.137(a),
(b)and
(e)are amended to clarify that the reexamination proceedings under § 1.957(c) referred to in § 1.137 are limited as to further prosecution; the prosecution is not terminated. To make this clarification, the introductory text portions of § 1.137(a) and § 1.137(b) are revised to recite that the prosecution is “limited under § 1.957(c),” rather than “terminated.” Section 1.137(e) is revised to also refer to “revival” of “an *inter partes* reexamination limited as to further prosecution.” The heading of § 1.137 is also revised to add “limited.” *Section 1.502:* Section 1.502 is amended to state that the “reexamination proceeding” is “concluded by the issuance and publication of a reexamination certificate.” That is the point at which citations (having an entry right in the patent) that were filed after the order of *ex parte* reexamination will be placed in the patent file. *Section 1.510:* Section 1.510(f) is revised to change § 1.34(a) to § 1.34. This change updates the section to conform to the revision of § 1.34 made in *Revision of Power of Attorney and Assignment Practice* , 69 FR 29865 (May 26, 2004) (final rule). *Section 1.530:* Section 1.530(a) is amended to provide for the disposition of the unauthorized paper being explicitly set forth in the § 1.530(a), *i.e.* , the paper will be returned or discarded at the Office's option. This explicit recitation of the Office's discretion was proposed at the last line of the discussion of § 1.530(a) in the Section-by-Section analysis of the proposed rule making notice and was not commented on. If the unauthorized paper was scanned into the electronic Image File Wrapper
(IFW)for the reexamination proceeding, and thus, the paper cannot be physically returned or discarded, then the unauthorized paper entry will be marked “closed” and “non-public,” and it will not constitute part of the record of the reexamination proceeding. Such papers will not display in the Office's image file wrapper that is made available, via PAIR, to the public, patent owners, and representatives of patent owners. Section 1.530(k) is amended to state that proposed amendments in *ex parte* or *inter partes* reexamination are not effective until the reexamination certificate is both “issued and published” to conform § 1.530(k) with the language of 35 U.S.C. 307. Sections 1.530(l)(1) and (l)(2) are amended to delete the references to “1.977” and add instead “1.997.” This corrects the prior reference to non-existent § 1.977. In addition, § 1.530(l)(2) is revised to recite that the reexamination proceeding is “concluded” by a reexamination certificate under § 1.570 or § 1.997, as opposed to “terminated,” which applies to a reexamination prosecution. *Section 1.550:* Section 1.550(d) is amended to recite that “[i]f the patent owner fails to file a timely and appropriate response to any Office action or any written statement of an interview required under § 1.560(b), the prosecution in the *ex parte* reexamination proceeding will be a terminated prosecution, and the Director will proceed to issue and publish a certificate concluding the reexamination proceeding under § 1.570 * * *.” This makes it clear that the patent owner's failure to timely file a required response (or interview statement) will result in the “terminating of prosecution of the reexamination proceeding,” but will not “conclude the reexamination proceeding.” It is to be noted that the prosecution will be a terminated prosecution as of the day after the response was due and not timely filed. In this instance, the Notice of Intent to Issue Reexamination Certificate
(NIRC)will be subsequently issued; however, it will not be the instrument that operates to terminate the prosecution, since that will have already automatically occurred upon the failure to respond. Further, “issued and published” is used to conform § 1.550(d) to the language of 35 U.S.C. 307. *Section 1.565:* Section 1.565(c) is amended to set forth that merged (consolidated) *ex parte* reexamination proceedings will result in the “issuance and publication” of a single certificate under § 1.570. As pointed out above, this tracks the statutory language. Section 1.565(d) is further amended to make it clear that the issuance of a reissue patent for a merged reissue-reexamination proceeding effects the conclusion of the reexamination proceeding. This is distinguished from the termination of the reexamination prosecution, as pointed out above. As a further technical change, “consolidated” in the prior version of § 1.565(c) is revised to now recite “merged,” for consistency with the terminology used in § 1.565(d). There is no difference in the meaning of the two terms, and the use of different terms in the two subsections was confusing. In addition, in § 1.565(d), the prior recitation of “normally” is replaced by “usually” (“normally” was an inadvertent inappropriate choice of terminology). The same term (“usually”) would be added to § 1.565(c). As was pointed out in the Notice of Proposed Rule Making, there are instances where the Office does not merge (consolidate) an ongoing *ex parte* reexamination proceeding with a subsequent reexamination or reissue proceeding, which are addressed on a case-by-case basis. The following examples are again set forth. If the prosecution in an ongoing *ex parte* reexamination proceeding has terminated ( *e.g.* , a Notice of Intent to Issue Reexamination Certificate has issued), the *ex parte* reexamination proceedings will generally not be merged (consolidated) with a subsequent reexamination proceeding or reissue application. If an ongoing *ex parte* reexamination proceeding is ready for decision by the Board of Patent Appeals and Interferences, or is on appeal to the U.S. Court of Appeals for the Federal Circuit, it would be inefficient (and contrary to the statutory mandate for special dispatch in reexamination) to “pull back” the ongoing *ex parte* reexamination proceeding for merger with a subsequent reexamination proceeding or reissue application. As a final example, an ongoing *ex parte* reexamination proceeding might be directed to one set of claims for which a first accused infringer (with respect to the first set) has filed the ongoing request for reexamination. A later reexamination request might then be directed to a different set of claims for which a second accused infringer (with respect to the second set) has filed the request. In this instance, where there are simply no issues in common, merger would serve only to delay the resolution of the first proceeding without providing any benefit to the public (this would run counter to the statutory mandate for “special dispatch” in reexamination proceedings). If reexamination is to act as an effective alternative to litigation, the ability to decide the question of whether to merge/consolidate based on the merits of a particular fact pattern must be, and is, reserved to the Office. *Section 1.570:* The heading of § 1.570 and § 1.570(a) are amended to make it clear that the issuance and publication of the *ex parte* reexamination certificate “concludes” the reexamination “proceeding.” The failure to timely respond, or the issuance of the NIRC, terminate prosecution, but do not conclude the reexamination proceeding. For consistency with the language of 35 U.S.C. 307, § 1.570, paragraphs
(b)and (d), are amended to recite that the reexamination certificate is both “issued and published.” *Section 1.902:* Section 1.902 is amended to state that the “reexamination proceeding” is “concluded by the issuance and publication of a reexamination certificate.” That is the point at which citations (having a right to entry in the patent) that were filed after the order of *inter partes* reexamination will be placed in the patent file. *Section 1.915:* Section 1.915(c) is revised to change the prior recitation of “§ 1.34(a)” to § 1.34. This change updates the section to conform to the revision of § 1.34 made in *Revision of Power of Attorney and Assignment Practice* , 69 FR 29865 (May 26, 2004) (final rule). *Section 1.923:* In the first sentence of § 1.923, the prior recitation of “§ 1.919” is changed to “§ 1.915,” since it is § 1.915 that provides for the request; § 1.919 provides for the filing date of the request. *Section 1.945:* Prior to the present revision, § 1.945 provided that “[t]he patent owner will be given at least thirty days to file a response to any Office action on the merits of the *inter partes* reexamination.” Section 1.945 is now revised to address the filing of a supplemental response to an Office action. Any supplemental response to an Office action will be entered only where the supplemental response is accompanied by a showing of sufficient cause why the supplemental response should be entered. The showing of sufficient cause must provide:
(1)A detailed explanation of how the requirements of § 1.111(a)(2)(i) are satisfied;
(2)an explanation of why the supplemental response was not presented together with the original response to the Office action; and
(3)a compelling reason to enter the supplemental response. Where the patent owner files a supplemental response to an Office action, the requester may file its comments under § 1.947 within 30 days after the date of service of the patent owner's supplemental response, in order to preserve requester's statutory comment right, in the event the Office exercises its discretion to enter the supplemental response. (The comments may address the merits of the proceeding and/or the adequacy of the showing of sufficient cause why the supplemental response should be entered.) If the requester fails to file comments, and the Office enters the supplemental response after 30 days from its filing, the requester will be statutorily barred from commenting at this stage, because, pursuant to 35 U.S.C. 314(b)(2), any requester comments filed after a patent owner response to an Office action must be filed “within 30 days after the date of service of the patent owner's response.” If the requester files comments and the patent owner's supplemental response is not entered by the Office, then both the supplemental response, and any comments following that supplemental response, will either be returned to the parties or discarded as the Office chooses in its sole discretion. If the supplemental response and/or comments were scanned into the electronic Image File Wrapper
(IFW)for the reexamination proceeding, and thus, the papers cannot be physically returned or discarded, then the supplemental response and/or comments entries will be marked “closed” and “non-public,” and they will not constitute part of the record of the reexamination proceeding. Such papers will not display in the Office's image file wrapper that is made available, via PAIR, to the public, patent owners, and representatives of patent owners. The decision on the sufficiency of the showing will not be issued until after receipt of requester comments under § 1.947 on the supplemental response, or the expiration of the 30-day period for requester comments (whichever comes first). The decision will be communicated to the parties either prior to, or with, the next Office action on the merits, as is deemed appropriate for the handling of the case. A showing of sufficient cause will not be established by an explanation that the supplemental response is needed to address the requester's comments (on patent owner's response), and could not have been presented together with the original response because it was not known that requester would raise a particular point. The *inter partes* reexamination statute (35 U.S.C. 314) provides for the patent owner to respond to an Office action, and the requester to comment on that response. There is no intent in the statute to provide the patent owner with a chance to file a supplemental response to address the requester's comments. Indeed, 35 U.S.C. 314(b)(2) ends the iteration of addressing the Office action by stating that “the third-party requester shall have one opportunity to file written comments addressing issues raised by the action of the Office or the patent owner's response thereto.” As pointed out above, no corresponding rule revision is needed in *ex parte* reexamination, since there is no third party requester comment on a patent owner response (that a patent owner will wish to address), and § 1.111(a)(2) adequately deals with patent owner supplemental responses. *Section 1.953:* The prior version of § 1.953(b) stated: “Any appeal by the parties shall be conducted in accordance with §§ 1.959-1.983.” This reference to §§ 1.959 through 1.983 is not correct, as some of the referenced rules had been deleted and others added. Instead of revising the incorrect reference, the entire sentence has been deleted as being out of place in § 1.953, which is not directed to the appeal process, but is rather directed to an Office action notifying parties of the right to appeal. Section 1.953(c) is amended to state that if a notice of appeal is not timely filed after a Right of Appeal Notice (RAN), then “prosecution in the *inter partes* reexamination proceeding will be terminated.” This will not, however, conclude the reexamination proceeding. *Section 1.956:* The subheading preceding § 1.956 is amended to refer to termination of the prosecution of the reexamination, rather than the termination or conclusion of the reexamination proceeding, since termination of the prosecution of the reexamination is what the sections that follow address. It is § 1.997 (Issuance of *Inter Partes* Reexamination Certificate) that deals with conclusion of the reexamination proceeding. *Section 1.957:* Section 1.957(b) is amended to recite that “[i]f no claims are found patentable, and the patent owner fails to file a timely and appropriate response * * *, the prosecution in the reexamination proceeding will be *a terminated prosecution* , and the Director will proceed to issue and publish a certificate concluding the reexamination proceeding under § 1.997 * * *.” (Emphasis added). This makes it clear that the patent owner's failure to timely file a required response, where no claim has been found patentable, will result in the terminating of prosecution of the reexamination proceeding, but will not conclude the reexamination proceeding. As previously discussed for *ex parte* reexamination, the prosecution will be a terminated prosecution as of the day after the response was due and not timely filed. In this instance, the NIRC will be subsequently issued; however, it will not be the instrument that operates to terminate the prosecution, since that will have already automatically occurred upon the failure to respond. Also, “issued and published” is used to conform § 1.550(d) to the language of 35 U.S.C. 316. *Section 1.958:* The heading of § 1.958 is amended to refer to the termination of prosecution of the reexamination, rather than the termination or conclusion of the reexamination proceeding, since that is what the rule addresses. *Section 1.979:* Section 1.979(b) is amended to recite that “[u]pon judgment in the appeal before the Board of Patent Appeals and Interferences, if no further appeal has been taken (§ 1.983), the prosecution in the *inter partes* reexamination proceeding will be terminated and the Director will issue and publish a certificate under § 1.997 concluding the proceeding.” This makes it clear that the termination of an appeal for an *inter partes* reexamination proceeding will result in a terminating of prosecution of the reexamination proceeding if no other appeal is present, but will not conclude the reexamination proceeding. Rather, it is the reexamination certificate under § 1.997 that concludes the reexamination proceeding. In addition, the title of § 1.979 is amended to add “appeal” before proceedings, and thus recite “Return of Jurisdiction from the Board of Patent Appeals and Interferences; termination of appeal proceedings.” This makes it clear that it is the appeal proceedings that are terminated; the reexamination proceeding is not terminated or concluded. *Section 1.983:* In § 1.983(a), the prior incorrect reference to § 1.979(e) is changed to recite the correct reference: § 41.81. *Section 1.989:* Section 1.989(a) is amended to set forth that consolidated (merged) reexamination proceedings containing an *inter partes* reexamination proceeding will result in the issuance and publication of a single certificate under § 1.570. As pointed out above, this tracks the statutory language. *Section 1.991:* In § 1.991, “and 41.60-41.81” is added to the previously recited “§§ 1.902 through 1.997,” since §§ 41.60-41.81 provide the requester with participation rights. Further, § 1.991 is amended to make it clear that the issuance of a reissue patent for a merged reissue-reexamination proceeding effects the conclusion of the reexamination proceeding. This is distinguished from the termination of the reexamination prosecution, as pointed out above. *Section 1.997:* Both the heading of § 1.997 and § 1.997(a) are amended to make it clear that the issuance and publication of the *inter partes* reexamination certificate effects the conclusion of the reexamination proceeding. The failure to timely respond, or the issuance of the NIRC, does not conclude the reexamination proceeding. Section 1.997(a) is also revised to make its language consistent with that of § 1.570(a). For consistency with the language of 35 U.S.C. 316, Section 1.997, paragraphs
(b)and (d), are amended to recite that the reexamination certificate is both issued and published. *Section 41.4:* Paragraph
(b)of § 41.4 is amended to
(1)recite to “a reexamination prosecution becoming terminated under §§ 1.550(d) or 1.957(b)” rather than the prior recitation of “a reexamination proceeding becoming terminated under §§ 1.550(d) or 1.957(b),” and
(2)refer to the prosecution as being “limited” under § 1.957(c) rather than “terminated” under § 1.957(c). These changes track those made in § 1.137; see the discussion of § 1.137. Rule Making Considerations *Regulatory Flexibility Act:* For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that the changes implemented in this notice will not have a significant economic impact on a substantial number of small entities. *See* 5 U.S.C. 605(b). The Office has issued between about 150,000 and 190,000 patents each year during the last five fiscal years. The Office receives fewer than 100 requests for *inter partes* reexamination each year. The principal impact of the changes in this final rule is to prohibit supplemental patent owner responses to an Office action in an *inter partes* reexamination without a showing of sufficient cause. The change in this final rule to prohibit supplemental patent owner responses to an Office action in an *inter partes* reexamination without a showing of sufficient cause will not have a significant economic impact on a substantial number of small entities for two reasons. First, assuming that all patentees in an *inter partes* reexamination are small entities and that all would have submitted a supplemental response without sufficient cause, the change would impact fewer than 100 small entity patentees each year. Second, there is no petition or other fee for the showing of sufficient cause that would be necessary under the implemented change for a supplemental patent owner's response to an Office action in an *inter partes* reexamination. Therefore, the changes implemented in this notice will not have a significant economic impact on a substantial number of small entities. *Executive Order 13132:* This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). *Executive Order 12866:* This rule making has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993). *Paperwork Reduction Act:* This notice involves information collection requirements which are subject to review by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The collections of information involved in this notice have been reviewed and previously approved by OMB under OMB control numbers: 0651-0027, 0651-0031, 0651-0033, and 0651-0035. The United States Patent and Trademark Office is not resubmitting the other information collections listed above to OMB for its review and approval because the changes in this notice do not affect the information collection requirements associated with the information collections under these OMB control numbers. The principal impacts of the changes in this final rule are to:
(1)Prohibit supplemental patent owner responses to an Office action in an *inter partes* reexamination without a showing of sufficient cause,
(2)designate the correspondence address for the patent as the correspondence address for all communications for patent owners in * ex parte * and *inter partes* reexaminations, and
(3)provide for the use of a single “mail stop” address for the filing of substantially all *ex parte* reexamination papers (as is already the case for *inter partes* reexamination papers). Comments are invited on:
(1)Whether the collection of information is necessary for proper performance of the functions of the agency;
(2)the accuracy of the agency's estimate of the burden;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information to respondents. Interested persons are requested to send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and
(2)Robert A. Clarke, Acting Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. List of Subjects 37 CFR Part 1 Administrative practice and procedure, Courts, Freedom of information, Inventions and patents, Reporting and recordkeeping requirements, Small businesses, and Biologics. 37 CFR Part 41 Administrative practice and procedure, Inventions and patents, Lawyers. For the reasons set forth in the preamble, 37 CFR parts 1 and 41 are amended as follows: PART 1—RULES OF PRACTICE IN PATENT CASES 1. The authority citation for 37 CFR part 1 continues to read as follows: Authority: 35 U.S.C. 2(b)(2), unless otherwise noted. 2. Section 1.1 is amended by revising paragraph (c)(1) to read as follows: § 1.1 Addresses for non-trademark correspondence with the United States Patent and Trademark Office.
(c)* * *
(1)Requests for *ex parte* reexamination (original request papers) and all subsequent *ex parte* reexamination correspondence filed in the Office, other than correspondence to the Office of the General Counsel pursuant to § 1.1(a)(3) and § 1.302(c), should be additionally marked “Mail Stop *Ex Parte* Reexam.” 3. Section 1.8 is amended by revising the introductory text of paragraph
(b)to read as follows: § 1.8 Certificate of mailing or transmission.
(b)In the event that correspondence is considered timely filed by being mailed or transmitted in accordance with paragraph
(a)of this section, but not received in the U.S. Patent and Trademark Office after a reasonable amount of time has elapsed from the time of mailing or transmitting of the correspondence, or after the application is held to be abandoned, or after the proceeding is dismissed or decided with prejudice, or the prosecution of a reexamination proceeding is terminated pursuant to § 1.550(d) or § 1.957(b) or limited pursuant to § 1.957(c), or a requester paper is refused consideration pursuant to § 1.957(a), the correspondence will be considered timely if the party who forwarded such correspondence: 4. Section 1.17 is amended by revising paragraphs
(l)and
(m)to read as follows: § 1.17 Patent application and reexamination processing fees.
(l)For filing a petition for the revival of an unavoidably abandoned application under 35 U.S.C. 111, 133, 364, or 371, for the unavoidably delayed payment of the issue fee under 35 U.S.C. 151, or for the revival of an unavoidably terminated or limited reexamination prosecution under 35 U.S.C. 133 (§ 1.137(a)): By a small entity (§ 1.27(a))—$250.00. By other than a small entity—$500.00.
(m)For filing a petition for the revival of an unintentionally abandoned application, for the unintentionally delayed payment of the fee for issuing a patent, or for the revival of an unintentionally terminated or limited reexamination prosecution under 35 U.S.C. 41(a)(7) (§ 1.137(b)): By a small entity (§ 1.27(a))—$750.00. By other than a small entity—$1,500.00. 5. Section 1.33 is amended by revising paragraph
(c)to read as follows: § 1.33 Correspondence respecting patent applications, reexamination proceedings, and other proceedings.
(c)All notices, official letters, and other communications for the patent owner or owners in a reexamination proceeding will be directed to the correspondence address. Amendments and other papers filed in a reexamination proceeding on behalf of the patent owner must be signed by the patent owner, or if there is more than one owner by all the owners, or by an attorney or agent of record in the patent file, or by a registered attorney or agent not of record who acts in a representative capacity under the provisions of § 1.34. Double correspondence with the patent owner or owners and the patent owner's attorney or agent, or with more than one attorney or agent, will not be undertaken. 6. Section 1.137 is amended by revising its heading, the introductory text of paragraph (a), the introductory text of paragraph (b), and paragraph
(e)to read as follows: § 1.137 Revival of abandoned application, terminated or limited reexamination prosecution, or lapsed patent.
(a)*Unavoidable.* If the delay in reply by applicant or patent owner was unavoidable, a petition may be filed pursuant to this paragraph to revive an abandoned application, a reexamination prosecution terminated under §§ 1.550(d) or 1.957(b) or limited under § 1.957(c), or a lapsed patent. A grantable petition pursuant to this paragraph must be accompanied by:
(b)*Unintentional.* If the delay in reply by applicant or patent owner was unintentional, a petition may be filed pursuant to this paragraph to revive an abandoned application, a reexamination prosecution terminated under §§ 1.550(d) or 1.957(b) or limited under § 1.957(c), or a lapsed patent. A grantable petition pursuant to this paragraph must be accompanied by:
(e)*Request for reconsideration.* Any request for reconsideration or review of a decision refusing to revive an abandoned application, a terminated or limited reexamination prosecution, or lapsed patent upon petition filed pursuant to this section, to be considered timely, must be filed within two months of the decision refusing to revive or within such time as set in the decision. Unless a decision indicates otherwise, this time period may be extended under:
(1)The provisions of § 1.136 for an abandoned application or lapsed patent;
(2)The provisions of § 1.550(c) for a terminated *ex parte* reexamination prosecution, where the *ex parte* reexamination was filed under § 1.510; or
(3)The provisions of § 1.956 for a terminated *inter partes* reexamination prosecution or an *inter partes* reexamination limited as to further prosecution, where the *inter partes* reexamination was filed under § 1.913. 7. Section 1.502 is revised to read as follows: § 1.502 Processing of prior art citations during an ex parte reexamination proceeding. Citations by the patent owner under § 1.555 and by an *ex parte* reexamination requester under either § 1.510 or § 1.535 will be entered in the reexamination file during a reexamination proceeding. The entry in the patent file of citations submitted after the date of an order to reexamine pursuant to § 1.525 by persons other than the patent owner, or an *ex parte* reexamination requester under either § 1.510 or § 1.535, will be delayed until the reexamination proceeding has been concluded by the issuance and publication of a reexamination certificate. See § 1.902 for processing of prior art citations in patent and reexamination files during an *inter partes* reexamination proceeding filed under § 1.913. 8. Section 1.510 is amended by revising paragraph
(f)to read as follows: § 1.510 Request for ex parte reexamination.
(f)If a request is filed by an attorney or agent identifying another party on whose behalf the request is being filed, the attorney or agent must have a power of attorney from that party or be acting in a representative capacity pursuant to § 1.34. 9. Section 1.530 is amended by revising paragraphs (a),
(k)and
(l)to read as follows: § 1.530 Statement by patent owner in ex parte reexamination; amendment by patent owner in ex parte or inter partes reexamination; inventorship change in ex parte or inter partes reexamination.
(a)Except as provided in § 1.510(e), no statement or other response by the patent owner in an *ex parte* reexamination proceeding shall be filed prior to the determinations made in accordance with § 1.515 or § 1.520. If a premature statement or other response is filed by the patent owner, it will not be acknowledged or considered in making the determination, and it will be returned or discarded (at the Office's option).
(k)Amendments not effective until certificate. Although the Office actions will treat proposed amendments as though they have been entered, the proposed amendments will not be effective until the reexamination certificate is issued and published.
(l)Correction of inventorship in an *ex parte* or *inter partes* reexamination proceeding.
(1)When it appears in a patent being reexamined that the correct inventor or inventors were not named through error without deceptive intention on the part of the actual inventor or inventors, the Director may, on petition of all the parties set forth in § 1.324(b)(1)-(3), including the assignees, and satisfactory proof of the facts and payment of the fee set forth in § 1.20(b), or on order of a court before which such matter is called in question, include in the reexamination certificate to be issued under § 1.570 or § 1.997 an amendment naming only the actual inventor or inventors. The petition must be submitted as part of the reexamination proceeding and must satisfy the requirements of § 1.324.
(2)Notwithstanding paragraph (1)(1) of this section, if a petition to correct inventorship satisfying the requirements of § 1.324 is filed in a reexamination proceeding, and the reexamination proceeding is concluded other than by a reexamination certificate under § 1.570 or § 1.997, a certificate of correction indicating the change of inventorship stated in the petition will be issued upon request by the patentee. 10. Section 1.550 is amended by revising paragraph
(d)to read as follows: § 1.550 Conduct of ex parte reexamination proceedings.
(d)If the patent owner fails to file a timely and appropriate response to any Office action or any written statement of an interview required under § 1.560(b), the prosecution in the *ex parte* reexamination proceeding will be a terminated prosecution, and the Director will proceed to issue and publish a certificate concluding the reexamination proceeding under § 1.570 in accordance with the last action of the Office. 11. Section 1.565 is amended by revising paragraphs
(c)and
(d)to read as follows: § 1.565 Concurrent office proceedings which include an ex parte reexamination proceeding.
(c)If *ex parte* reexamination is ordered while a prior *ex parte* reexamination proceeding is pending and prosecution in the prior *ex parte* reexamination proceeding has not been terminated, the *ex parte* reexamination proceedings will usually be merged and result in the issuance and publication of a single certificate under § 1.570. For merger of *inter partes* reexamination proceedings, see § 1.989(a). For merger of *ex parte* reexamination and *inter partes* reexamination proceedings, see § 1.989(b).
(d)If a reissue application and an *ex parte* reexamination proceeding on which an order pursuant to § 1.525 has been mailed are pending concurrently on a patent, a decision will usually be made to merge the two proceedings or to suspend one of the two proceedings. Where merger of a reissue application and an *ex parte* reexamination proceeding is ordered, the merged examination will be conducted in accordance with §§ 1.171 through 1.179, and the patent owner will be required to place and maintain the same claims in the reissue application and the *ex parte* reexamination proceeding during the pendency of the merged proceeding. The examiner's actions and responses by the patent owner in a merged proceeding will apply to both the reissue application and the *ex parte* reexamination proceeding and will be physically entered into both files. Any *ex parte* reexamination proceeding merged with a reissue application shall be concluded by the grant of the reissued patent. For merger of a reissue application and an *inter partes* reexamination, see § 1.991. 12. Section 1.570 is amended by revising its heading and paragraphs (a),
(b)and (d), to read as follows: § 1.570 Issuance and publication of ex parte reexamination certificate concludes ex parte reexamination proceeding.
(a)To conclude an *ex parte* reexamination proceeding, the Director will issue and publish an *ex parte* reexamination certificate in accordance with 35 U.S.C. 307 setting forth the results of the *ex parte* reexamination proceeding and the content of the patent following the *ex parte* reexamination proceeding.
(b)An *ex parte* reexamination certificate will be issued and published in each patent in which an *ex parte* reexamination proceeding has been ordered under § 1.525 and has not been merged with any *inter partes* reexamination proceeding pursuant to § 1.989(a). Any statutory disclaimer filed by the patent owner will be made part of the *ex parte* reexamination certificate.
(d)If an *ex parte* reexamination certificate has been issued and published which cancels all of the claims of the patent, no further Office proceedings will be conducted with that patent or any reissue applications or any reexamination requests relating thereto. 13. Section 1.902 is revised to read as follows: § 1.902 Processing of prior art citations during an inter partes reexamination proceeding. Citations by the patent owner in accordance with § 1.933 and by an *inter partes* reexamination third party requester under § 1.915 or § 1.948 will be entered in the *inter partes* reexamination file. The entry in the patent file of other citations submitted after the date of an order for reexamination pursuant to § 1.931 by persons other than the patent owner, or the third party requester under either § 1.913 or § 1.948, will be delayed until the *inter partes* reexamination proceeding has been concluded by the issuance and publication of a reexamination certificate. See § 1.502 for processing of prior art citations in patent and reexamination files during an *ex parte* reexamination proceeding filed under § 1.510. 14. Section 1.915 is amended by revising paragraph
(c)to read as follows: § 1.915 Content of request for inter partes reexamination.
(c)If an *inter partes* request is filed by an attorney or agent identifying another party on whose behalf the request is being filed, the attorney or agent must have a power of attorney from that party or be acting in a representative capacity pursuant to § 1.34. 15. Section 1.923 is revised to read as follows: § 1.923 Examiner's determination on the request for inter partes reexamination. Within three months following the filing date of a request for *inter partes* reexamination under § 1.915, the examiner will consider the request and determine whether or not a substantial new question of patentability affecting any claim of the patent is raised by the request and the prior art citation. The examiner's determination will be based on the claims in effect at the time of the determination, will become a part of the official file of the patent, and will be mailed to the patent owner at the address as provided for in § 1.33(c) and to the third party requester. If the examiner determines that no substantial new question of patentability is present, the examiner shall refuse the request and shall not order *inter partes* reexamination. 16. Section 1.945 is revised to read as follows: § 1.945 Response to Office action by patent owner in inter partes reexamination.
(a)The patent owner will be given at least thirty days to file a response to any Office action on the merits of the *inter partes* reexamination.
(b)Any supplemental response to the Office action will be entered only where the supplemental response is accompanied by a showing of sufficient cause why the supplemental response should be entered. The showing of sufficient cause must include:
(1)An explanation of how the requirements of § 1.111(a)(2)(i) are satisfied;
(2)An explanation of why the supplemental response was not presented together with the original response to the Office action; and
(3)A compelling reason to enter the supplemental response. 17. Section 1.953 is amended by revising paragraphs
(b)and
(c)to read as follows: § 1.953 Examiner's Right of Appeal Notice in inter partes reexamination.
(b)Expedited Right of Appeal Notice: At any time after the patent owner's response to the initial Office action on the merits in an *inter partes* reexamination, the patent owner and all third party requesters may stipulate that the issues are appropriate for a final action, which would include a final rejection and/or a final determination favorable to patentability, and may request the issuance of a Right of Appeal Notice. The request must have the concurrence of the patent owner and all third party requesters present in the proceeding and must identify all of the appealable issues and the positions of the patent owner and all third party requesters on those issues. If the examiner determines that no other issues are present or should be raised, a Right of Appeal Notice limited to the identified issues shall be issued.
(c)The Right of Appeal Notice shall be a final action, which comprises a final rejection setting forth each ground of rejection and/or final decision favorable to patentability including each determination not to make a proposed rejection, an identification of the status of each claim, and the reasons for decisions favorable to patentability and/or the grounds of rejection for each claim. No amendment can be made in response to the Right of Appeal Notice. The Right of Appeal Notice shall set a one-month time period for either party to appeal. If no notice of appeal is filed, prosecution in the *inter partes* reexamination proceeding will be terminated, and the Director will proceed to issue and publish a certificate under § 1.997 in accordance with the Right of Appeal Notice. 18. The undesignated center heading immediately preceding § 1.956 is revised to read as follows: Extensions of Time, Terminating of Reexamination Prosecution, and Petitions To Revive in Inter Partes Reexamination 19. Section 1.957 is amended by revising paragraph
(b)to read as follows: § 1.957 Failure to file a timely, appropriate or complete response or comment in inter partes reexamination.
(b)If no claims are found patentable, and the patent owner fails to file a timely and appropriate response in an *inter partes* reexamination proceeding, the prosecution in the reexamination proceeding will be a terminated prosecution and the Director will proceed to issue and publish a certificate concluding the reexamination proceeding under § 1.997 in accordance with the last action of the Office. 20. Section 1.958 is amended by revising its heading to read as follows: § 1.958 Petition to revive inter partes reexamination prosecution terminated for lack of patent owner response. 21. Section 1.979 is amended by revising its heading and paragraph
(b)to read as follows: § 1.979 Return of Jurisdiction from the Board of Patent Appeals and Interferences; termination of appeal proceedings.
(b)Upon judgment in the appeal before the Board of Patent Appeals and Interferences, if no further appeal has been taken (§ 1.983), the prosecution in the *inter partes* reexamination proceeding will be terminated and the Director will issue and publish a certificate under § 1.997 concluding the proceeding. If an appeal to the U.S. Court of Appeals for the Federal Circuit has been filed, that appeal is considered terminated when the mandate is issued by the Court. 22. Section 1.983 is amended by revising paragraph
(a)to read as follows: § 1.983 Appeal to the United States Court of Appeals for the Federal Circuit in inter partes reexamination.
(a)The patent owner or third party requester in an *inter partes* reexamination proceeding who is a party to an appeal to the Board of Patent Appeals and Interferences and who is dissatisfied with the decision of the Board of Patent Appeals and Interferences may, subject to § 41.81, appeal to the U.S. Court of Appeals for the Federal Circuit and may be a party to any appeal thereto taken from a reexamination decision of the Board of Patent Appeals and Interferences. 23. Section 1.989 is amended by revising paragraph
(a)to read as follows: § 1.989 Merger of concurrent reexamination proceedings.
(a)If any reexamination is ordered while a prior *inter partes* reexamination proceeding is pending for the same patent and prosecution in the prior *inter partes* reexamination proceeding has not been terminated, a decision may be made to merge the two proceedings or to suspend one of the two proceedings. Where merger is ordered, the merged examination will normally result in the issuance and publication of a single reexamination certificate under § 1.997. 24. Section 1.991 is revised to read as follows: § 1.991 Merger of concurrent reissue application and inter partes reexamination proceeding. If a reissue application and an *inter partes* reexamination proceeding on which an order pursuant to § 1.931 has been mailed are pending concurrently on a patent, a decision may be made to merge the two proceedings or to suspend one of the two proceedings. Where merger of a reissue application and an *inter partes* reexamination proceeding is ordered, the merged proceeding will be conducted in accordance with §§ 1.171 through 1.179, and the patent owner will be required to place and maintain the same claims in the reissue application and the *inter partes* reexamination proceeding during the pendency of the merged proceeding. In a merged proceeding the third party requester may participate to the extent provided under §§ 1.902 through 1.997 and 41.60 through 41.81, except that such participation shall be limited to issues within the scope of *inter partes* reexamination. The examiner's actions and any responses by the patent owner or third party requester in a merged proceeding will apply to both the reissue application and the *inter partes* reexamination proceeding and be physically entered into both files. Any *inter partes* reexamination proceeding merged with a reissue application shall be concluded by the grant of the reissued patent. 25. Section 1.997 is amended by revising its heading and paragraphs (a), (b), and
(d)to read as follows: § 1.997 Issuance and publication of inter partes reexamination certificate concludes inter partes reexamination proceeding.
(a)To conclude an *inter partes* reexamination proceeding, the Director will issue and publish an *inter partes* reexamination certificate in accordance with 35 U.S.C. 316 setting forth the results of the *inter partes* reexamination proceeding and the content of the patent following the *inter partes* reexamination proceeding.
(b)A certificate will be issued and published in each patent in which an *inter partes* reexamination proceeding has been ordered under § 1.931. Any statutory disclaimer filed by the patent owner will be made part of the certificate.
(d)If a certificate has been issued and published which cancels all of the claims of the patent, no further Office proceedings will be conducted with that patent or any reissue applications or any reexamination requests relating thereto. PART 41—PRACTICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES 26. The authority citation for 37 CFR part 41 continues to read as follows: Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134, 135. 27. Section 41.4 is amended by revising paragraph
(b)to read as follows: § 41.4 Timeliness.
(b)*Late filings* .
(1)A late filing that results in either an application becoming abandoned or a reexamination prosecution becoming terminated under §§ 1.550(d) or 1.957(b) of this title or limited under § 1.957(c) of this title may be revived as set forth in § 1.137 of this title.
(2)A late filing that does not result in either an application becoming abandoned or a reexamination prosecution becoming terminated under §§ 1.550(d) or 1.957(b) of this title or limited under § 1.957(c) of this title will be excused upon a showing of excusable neglect or a Board determination that consideration on the merits would be in the interest of justice. Dated: April 9, 2007. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E7-7202 Filed 4-13-07; 8:45 am] BILLING CODE 3510-16-P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Parts 2 and 7 [Docket No.: PTO-T-2007-0005] RIN 0651-AC11 Correspondence With the Madrid Processing Unit of the United States Patent and Trademark Office AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Final rule. SUMMARY: The United States Patent and Trademark Office (Office) revises the rules of practice to change the address for correspondence with the Madrid Processing Unit of the Office. The Office relocated to Alexandria, Virginia, in 2004, and hereby changes the address for correspondence with the Office relating to filings pursuant to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks to an Alexandria, Virginia address. DATES: *Effective Date:* The changes in this final rule are effective April 16, 2007. FOR FURTHER INFORMATION CONTACT: Jennifer Chicoski, Office of the Commissioner for Trademarks,
(571)272-8943, or via e-mail at *Jennifer.chicoski@uspto.gov.* SUPPLEMENTARY INFORMATION: In connection with the relocation of the Office to Alexandria, Virginia, in 2004, the Office previously changed most of its correspondence addresses so that correspondence has been routed through a United States Postal Service
(USPS)facility that is more conveniently located to the Office. A post office box had been retained in Arlington, Virginia, the previous location of the Office, for the acceptance of certain correspondence, including submissions to the Madrid Processing Unit
(MPU)of the Office. The Office has now made arrangements so that correspondence to the MPU may be routed to the Office at its current location. In connection with the address change, the USPS has provided a separate routing +4 zip code to distinguish mail for the MPU from other Office mail, and all correspondence to the MPU should now be sent to the Office's main headquarters, addressed with the separate routing +4 zip code. The Office appreciates that it will take some period of time for all persons filing correspondence with the MPU to become accustomed to the address change. Although the address change is effective immediately, the Office plans to arrange for continued delivery of correspondence addressed to the MPU's former Arlington, Virginia 22215 address as a courtesy for a limited period of time. The Office cannot ensure the availability of the Arlington, Virginia Post Office Box for receipt of MPU correspondence after October 31, 2007. The Office also is adding reference to a particular type of correspondence, requests to note replacements under § 7.28, that are presently not identified in the rule as being accepted by mail or via hand delivery, in order to clarify that the Office does accept such requests by mail or by hand during the hours the Office is open to receive correspondence. Discussion of Specific Rules The Office is amending §§ 2.190(e) and 7.4(b) to provide that international applications under § 7.11, subsequent designations under § 7.21, responses to notices of irregularity under § 7.14, requests to record changes in the International Register under § 7.23 and § 7.24, requests to note replacement under § 7.28, requests for transformation under § 7.31, and petitions to the Director to review an action of the Office's MPU, when filed by mail, must be addressed to: Madrid Processing Unit, 600 Dulany Street, MDE-7B87, Alexandria, VA 22314-5793. The Office is amending § 7.4(b)(2) to add that requests to note replacement under § 7.28, when filed by mail, will be accorded the date of receipt in the Office. The Office is amending § 7.4(c) to add requests to note replacement under § 7.28 to the list of correspondence that may be hand-delivered to the Office. Rule Making Requirements *Administrative Procedure Act:* Since this final rule is directed to changing the address for filing certain correspondence with the Office, this final rule merely involves rules of agency organization, procedure, or practice within the meaning of 5 U.S.C. 553(b)(A). Accordingly, this final rule may be adopted without prior notice and opportunity for public comment under 5 U.S.C. 553(b) and (c), or thirty-day advance publication under 5 U.S.C. 553(d). *Regulatory Flexibility Act:* As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 (or any other law), a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) is not required. *See* 5 U.S.C. 603. *Executive Order 13132:* This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). *Executive Order 12866:* This rule making has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993). *Paperwork Reduction Act:* This rule making does not create any new information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. The collection of this information has been approved by OMB under control number 0651-0055. List of Subjects 37 CFR Part 2 Administrative practice and procedure, Trademarks. 37 CFR Part 7 Administrative practice and procedure, Trademarks, International Registration. For the reasons given in the preamble and under the authority contained in 15 U.S.C. 1123 and 35 U.S.C. 2, as amended, the Office is amending parts 2 and 7 of Title 37 of the Code of Federal Regulations, as follows: PART 2—RULES OF PRACTICE IN TRADEMARK CASES 1. The authority citation for part 2 continues to read: Authority: 15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted. 2. Amend § 2.190 by revising paragraph
(e)to read as follows: § 2.190 Addresses for trademark correspondence with the United States Patent and Trademark Office.
(e)*Certain Documents Relating to International Applications and Registrations.* International applications under § 7.11, subsequent designations under § 7.21, responses to notices of irregularity under § 7.14, requests to record changes in the International Register under § 7.23 and § 7.24, requests to note replacements under § 7.28, requests for transformation under § 7.31, and petitions to the Director to review an action of the Office's Madrid Processing Unit, when filed by mail, must be mailed to: Madrid Processing Unit, 600 Dulany Street, MDE-7B87, Alexandria, VA 22314-5793. PART 7—RULES OF PRACTICE IN FILINGS PURSUANT TO THE PROTOCOL RELATING TO THE MADRID AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION OF MARKS 3. The authority citation for part 7 continues to read: Authority: 15 U.S.C. 1135, 35 U.S.C. 2, unless otherwise noted. 4. Amend § 7.4 by revising paragraphs
(b)introductory text, (b)(2) and
(c)to read as follows: § 7.4 Receipt of correspondence.
(b)*Correspondence Filed By Mail.* International applications under § 7.11, subsequent designations under § 7.21, responses to notices of irregularity under § 7.14, requests to record changes in the International Register under § 7.23 and § 7.24, requests to note replacement under § 7.28, requests for transformation under § 7.31, and petitions to the Director to review an action of the Office's Madrid Processing Unit, when filed by mail, must be addressed to: Madrid Processing Unit, 600 Dulany Street, MDE-7B87, Alexandria, VA 22314-5793.
(1)* * *
(2)Responses to notices of irregularity under § 7.14, requests to note replacement under § 7.28, and requests for transformation under § 7.31, when filed by mail, will be accorded the date of receipt in the Office.
(c)*Hand-Delivered Correspondence.* International applications under § 7.11, subsequent designations under § 7.21, responses to notices of irregularity under § 7.14, requests to record changes in the International Register under § 7.23 and § 7.24, requests to note replacement under § 7.28, requests for transformation under § 7.31, and petitions to the Director to review an action of the Office's Madrid Processing Unit, may be delivered by hand during the hours the Office is open to receive correspondence. Madrid-related hand-delivered correspondence must be delivered to the Trademark Assistance Center, James Madison Building—East Wing, Concourse Level, 600 Dulany Street, Alexandria, VA 22314, Attention: MPU. Dated: April 9, 2007. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E7-7116 Filed 4-13-07; 8:45 am] BILLING CODE 3510-16-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 405, 410, 411, 414, 415, and 424 [CMS-1321-F2] RIN 0938-AN84 Medicare Program; Revisions to Payment Policies, Five-Year Review of Work Relative Value Units, and Changes to the Practice Expense Methodology Under the Physician Fee Schedule, and Other Changes to Payment Under Part B; Correcting Amendment AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Correcting amendment. SUMMARY: This correcting amendment corrects several technical and typographical errors in the final rule with comment period that appeared in the December 1, 2006 **Federal Register** (71 FR 69624). The final rule with comment period addressed Medicare Part B payment policy, including the physician fee schedule
(PFS)that is applicable for calendar year
(CY)2007; payment for covered outpatient drugs and biologicals; payment for renal dialysis services; and policies related to independent diagnostic testing facilities (IDTFs). The final rule with comment period also updated the list of certain services subject to the physician self-referral prohibitions. DATES: *Effective Date:* Pursuant to section 1871(e) of the Act, except for the corrections to § 410.33, this correcting amendment is effective January 1, 2007. The corrections to § 410.33 are effective April 16, 2007. FOR FURTHER INFORMATION CONTACT: Diane Milstead,
(410)786-3355. SUPPLEMENTARY INFORMATION: I. Background FR Doc. 06-9086 (71 FR 69624), the final rule with comment period entitled “Medicare Program; Revisions to Payment Policies, Five-Year Review of Work Relative Value Units, and Changes to the Practice Expense Methodology Under the Physician Fee Schedule, and Other Changes to Payment Under Part B; Revisions to the Payment Policies of Ambulance Services Under the Fee Schedule for Ambulance Services; Ambulance Inflation Factor Update for CY 2007” (hereinafter referred to as the CY 2007 PFS final rule with comment period), contained technical and typographical errors. Some of these technical and typographical errors were addressed in the correction notice that appeared in the December 8, 2006 **Federal Register** (71 FR 58415). Additional errors have been identified in the CY 2007 PFS final rule with comment period and are addressed in this correcting amendment. II. Errors in the Preamble A. Summary of Errors in the Preamble In the preamble of the CY 2007 PFS final rule with comment period, there were a number of technical errors and omissions. On page 69635, following the section heading titled, “(vi) Equipment Cost Per Minute,” there was an error in the formula for calculating the equipment cost per minute. On page 69647, language was inadvertently omitted from the response concerning cardiac monitoring services. On page 69654, in Table 5, “Practice Expense Supply Item Additions for CY 2007”, we incorrectly included a supply item and failed to include the unit price of another item. On page 69663, the word “an” was incorrectly typed to read “as” in two places. On page 69671, the word “not” was incorrectly included in a sentence. On page 69677, the word “of” was missing from a sentence. On page 69688, under the section heading titled, “d. “ESRD Wage Index Tables,” the references to addenda were incorrect. On page 69696, the word “supplier” was misspelled. On page 69699 in the narrative concerning revisions to the performance standards for IDTFs, we inadvertently omitted language specifying that paragraphs
(g)and
(h)are not applicable to those services included in § 410.33(a)(2). We also inadvertently included language requiring IDTFs to list serial numbers and that was not our intention. On pages 69744, the narrative concerning Table 17 contained several errors. On pages 69746, certain CPT codes were incorrectly included in Table 17. On page 69747, we incorrectly included a discussion about gold markers for CPT code 55876. On page 69748, the word “radiology” was incorrectly stated as “radiation.” On page 69749, the word “of” should be removed from the phrase “radiology of and certain other imaging services.” On pages 69749 and 69750, in Table 18, under the subheading, “Radiology and certain other imaging services,” we made errors in the descriptors for CPT codes 0174T and 0175T and HCPCS codes A9567, A9568, Q9952, and Q9953. On page 69750, in Table 19, we omitted CPT codes 78350 and G0243. On page 69760, language was omitted from the formula. On pages 69769 and 69770, in Table 36, “Impact of Final Rule with Comment Period and Estimated Physician Update on 2007 Payment for Selected Procedures”, we identified errors in the new payment amounts for the following CPT and HCPCS codes: 27130, 27244, 27447, 33533, 35301, 43239, 77056, 77056-26, 77057, 77057-26, 92980, 93000, 93015 and G0317. Corrections to these errors are reflected in section II.B. of this correcting amendment. B. Correction of Errors in the Preamble 1. On page 69635, in the 3rd column, under the discussion titled, “(vi) Equipment Cost Per Minute,” the calculation for the equipment cost per minute contained an error. The formula is corrected to read as follows: “The equipment cost per minute is calculated as: (1/(minutes per year * usage)) * price * ((interest rate/(1-(1/((1+interest rate)‸life of equipment)))) + maintenance).” 2. On page 69647, in the 3rd column, in the 1st full paragraph, after the 3rd sentence, insert the following language: “We also added the holter monitor to CPT codes 93226 and 93232 and assigned the equipment a time of 1440 minutes for these codes and reduced the holter monitor equipment time for CPT codes 93225 and 93231 to 42 minutes to correspond with the clinical staff associated with these services.” 3. On page 69654, in Table 5, the supply item, “Kit, gold markers, fiducial, 3 per kit” is deleted from the table. In addition, the unit price “$1290” for “Agent, embolic” is added to the table. 4. On page 69663, in the 2nd column, lines 5 through 12 of the third full paragraph, the language in the discussion with respect to items “(1) and (2)” is corrected to read as follows: “(1) who receives a referral for such an ultrasound screening as a result of an initial preventive physical examination
(IPPE)(as defined in section 1861(ww)(1) of the Act);
(2)who has not been previously furnished such an ultrasound screening under this title; and”. 5. On page 69671, in the 2nd column, line 24, delete the second occurrence of the word “not”. This sentence is revised to read as follows: “Given the range of comments, we do not believe it is advisable to mandate the use of the methodology, which we proposed at § 414.804(a)(4)(iii), for excluding lagged exempt sales.” 6. On page 69677, the 3rd column, line 2, insert the word “of” between “number” and “units.” The sentence is revised to read as follows: “One commenter asked that we clarify the number of units to be reported are the number of units sold excluding exempted sales.” 7. On page 69688, in the 1st column, under the section heading titled, “d. ESRD wage Index Tables,” the paragraph is revised to read as follows: “Addenda G and H show the CY 2007 ESRD wage index, including the BNF adjustment, for urban areas (Addendum G) and rural areas (Addendum H).” 8. On page 69696, in the 1st column, 2nd paragraph, line 4, the spelling of the word “supplier” is corrected. 9. On page 69699— a. In the 1st column, the 5th full paragraph, the following sentence is added to the end of the paragraph: “Additionally, we do not intend to require IDTFs to list the serial numbers of all diagnostic equipment used by IDTFs in their comprehensive liability insurance. We recognize that it is infeasible for IDTFs to comply with this requirement and that such a requirement would inadvertently change the comprehensive liability insurance policy into a different type of insurance policy. Therefore, we are revising the language in § 410.33(g)(6) of our regulations to remove the serial number requirement.” b. In the 3rd column, the 2nd full paragraph, the following language is added at the end of the paragraph: “In addition, we are clarifying that these performance standards are not applicable to the diagnostic tests listed under the exceptions in § 410.33(a)(2).” 10. On page 69744, in the 3rd column, in the paragraph following the section heading, “F. Additional Pricing Issue,” the narrative concerning the table is corrected to read as follows: “We are carrier-pricing the global and TC for the codes listed in Table 17. The TC is not paid in the facility setting under the PFS and for the majority of these services the RUC recommended that these be designated as NA in the non-facility setting. Work RVUs will continue to be used to establish payment for the PC.” 11. On page 69746, the following CPT codes are deleted from Table 17: 93503, 93539, 93540, 93541, 93542, 93543, 93544 and 93545. 12. On page 69747, the 1st column, the final paragraph that continues into the 2nd column is removed in its entirety. 13. On page 69748, in the 1st column, the 3rd paragraph, line 4, the word, “radiation” is corrected to read as, “radiology.” 14. On page 69749, in the 1st column, the 1st full paragraph, line 4, in the phrase, “radiology of and certain other imaging services,” delete the word, “of.” The phrase is corrected to read “radiology and certain other imaging services.” 15. On pages 69749 and 69750, in Table 18, the following descriptors are corrected as follows: Table 18.—Additions to the Physician Self-Referral List of CPT 1 /HCPCS Codes Radiology and Certain Other Imaging Services 0174T Cad cxr with interp. 0175T Cad cxr remote. A9567 Technetium TC-99m aerosol. A9568 Technetium tc99m arcitumomab. Q9952 Inj Gad-base MR contrast, 1ml. Q9953 Inj Fe-base MR contrast, 1ml. 1 CPT codes and descriptions only are copyright 2006 American Medical Association. All rights are reserved and applicable FARS/DFARS clauses apply. 16. On page 69750, in Table 19, the following CPT and HCPCS codes and their descriptors are added: Table 19.—Deletions to the Physician Self-Referral List of CPT 1 /HCPCS Codes Radiation and Certain Other Imaging Services 78350 Bone mineral, single photon. Radiation Therapy Services and Supplies G0243 Multisour photon stero treat. 1 CPT codes and descriptions only are copyright 2006 AMA. All rights are reserved and applicable FARS/DFARS clauses apply. 17. On page 69760, the payment formula at the top of the 3rd column is corrected to read as follows: “[((Work RVU × BN adjustor (0.8994)) (round product to two decimal places) × Work GPCI) + (PE RVU × PE GPCI) + (MP RVU × MP GPCI)] × CF.” 18. On pages 69769 through 69770 in Table 36, the following corrections are made: Table 36.—Impact of Final Rule with Comment Period and Estimated Physician Update on 2007 Payment For Selected Procedures CPT/HCPCS MOD Description FACILITY OLD NEW Percent change NON-FACILITY OLD NEW Percent change 27130 Total hip arthroplasty $1,399.55 $1,292.21 −8% $1,399.55 na na 27244 Treat thigh fracture $1,137.68 $1,045.36 −8% $1,137.68 na na 27447 Total knee arthroplasty $1,511.35 $1,391.17 −8% $1,511.35 na na 33533 CABG, arterial, single $1,933.53 $1,812.55 −6% $1,933.53 na na 35301 Rechanneling of artery $1,128.97 $1,018.01 −10% $1,128.97 na na 43239 Upper GI endoscopy, biopsy $162.20 $147.18 −9% $334.26 $309.11 −8% 77056 Mammogram, both breasts $97.40 na na $97.40 $92.48 −5% 77056 26 Mammogram, both breasts $45.10 $39.22 −13% $45.10 $39.22 −13% 77057 Mammogram, screening $85.65 na na $85.65 $77.73 −9% 77057 26 Mammogram, screening $36.38 $31.67 −13% $36.38 $31.67 −13% 92980 Inser intracoronary stent $830.71 $756.04 −9% $830.71 na na 93000 Electrocardiogram, complete $26.91 na na $26.91 $23.39 −13% 93015 Cardiovascular stress test $108.01 na na $108.01 $99.32 −8% G0008 Admin influenza virus vac na na na $18.57 $18.35 −1% G0317 ESRD related svs 4+mo 20+yrs $308.11 $268.11 −13% $308.11 $268.11 −13% III. Errors in the Regulation Text A. Summary of Errors in the Regulation Text On page 69784, in § 410.33, we erroneously omitted a cross-reference in (a)(2) to include paragraphs
(g)and (h). In addition, in § 410.33(g), Application certification standards, an editing error resulted in language being included on page 69785 in § 410.33(g)(6) that required IDTFs to list the serial numbers of all their diagnostic equipment in their comprehensive liability insurance policy. On page 69785, § 411.15(o) contained erroneous revisions. Due to an editing error, changes to § 411.15(o) were improperly included in the August 22, 2006 proposed rule (71 FR 49081). There was no explanation given for these changes in the preamble, no public comments were received on the proposed changes, and the changes to the regulation text were inadvertently included in the final rule without any explanation. The erroneous language suggests that Medicare may pay for a category A device in certain clinical trials. Currently, however, the statute does not authorize payment for the costs of the category A device, but only for “routine costs of care” (section 1862(m) of the Act; § 405.207(b)(2)). Thus, we are correcting this final rule by restoring the language in § 411.15(o) to the language from the 2006 version of the CFR. On pages 69787 and 69788, language was incorrectly included concerning non-lagged price concessions in the example. B. Correction of Errors in the Regulation Text The correction of errors for the regulation text appear after section V. of this correcting amendment. IV. Errors in the Addenda A. Summary of Errors in the Addenda The following errors in Addenda B, G and J are revised under this correcting amendment. These addenda will not appear in the Code of Federal Regulations. In Addendum B, pages 69796 through 70011, we are making the following corrections:
(1)Incorrect RVUs were listed for the following CPT codes: 36478, 37210, 44180, 44186, 77056, 77056-TC, 77422, 77423, 78351, 93225, 93226, 93231, 93232, 95991, 98960, 98961, 98962, G9041, G9042, G9043 and G9044.
(2)Incorrect status indicators and RVUs were listed for CPT codes 93503, 93539, 93540, 93541, 93542, 93543, 93544 and 93545. In Addendum G, pages 70022 through 70043, we are making the following corrections:
(1)The title of the Addendum was missing a word.
(2)On page 70037, the wage index value for CBSA code “39820, Redding CA” was incorrect. In Addendum J, pages 70248 through 70251, we note the following errors:
(1)On page 70247, CPT codes 78267 and 78268 are not in numerical order.
(2)On page 70248, in the 2nd column, we made typographical errors in the code descriptors for CPT codes 0174T and 0175T.
(3)On page 70250, in the 1st column, we incorrectly listed CPT code 78350. That code (single-photon absorptiometry) is non-covered beginning in 2007 under the policy changes discussed on page 69691 of the CY 2007 PFS final rule with comment period.
(4)On page 70250, in the 3rd column, we made typographical errors in the descriptors for HCPCS codes A9567, A9568, Q9952, and Q9953.
(5)On page 70251, in the 2nd column, we did not include the correct descriptor for HCPCS code G0173. Also, in that column, we incorrectly included HCPCS G0243, which was terminated effective December 31, 2006.
(6)On page 70251, in the second footnote at the bottom of the page, we gave an incorrect Web site address. These corrections are reflected in section IV.B. of this correcting amendment. B. Correction of Errors in Addenda 1. On pages 69796 through 70011, in Addendum B: Relative Value Units
(RVUs)and Related Information the following entries are corrected to read as follows: Addendum B.—Relative Value Units
(RVUs)and Related Information—Corrections CPT 1 / HCPCS 2 Mod Status Description Physician Work RVUs 3 Fully Implemented Non-Facility PE RVUs Year 2007 Transitional Non-Facility PE RVUs Fully Implemented Facility PE RVUs Year 2007 Transitional Facility PE RVUs Mal-Practice RVUs Fully Implemented Non-Facility Total Year 2007 Transitional Non-Facility Total Fully Implemented Facility Total Year 2007 Transitional Facility Total Global 36478 A Endovenous laser, 1st vein 6.72 26.53 41.71 2.03 2.41 0.37 33.62 48.80 9.12 9.50 000 37210 A Embolization uterine fibroid 10.60 79.88 79.88 3.13 3.13 0.60 91.08 91.08 14.33 14.33 000 44180 A Lap, enterolysis 15.19 NA NA 5.65 6.09 1.86 NA NA 22.70 23.14 090 44186 A Lap, jejunostomy 10.30 NA NA 4.43 4.70 1.27 NA NA 16.00 16.27 090 77056 A Mammogram, both breasts 0.87 1.96 1.68 NA NA 0.11 2.94 2.66 NA NA XXX 77056 TC A Mammogram, both breasts 0.00 1.72 1.41 NA NA 0.07 1.79 1.48 NA NA XXX 77422 A Neutron beam tx, simple 0.00 5.31 2.61 NA NA 0.13 5.44 2.74 NA NA XXX 77423 A Neutron beam tx, complex 0.00 7.51 3.57 NA NA 0.13 7.64 3.70 NA NA XXX 78351 N Bone mineral, dual photon 0.30 0.47 1.41 0.07 0.11 0.01 0.78 1.72 0.38 0.42 XXX 93225 A ECG monitor/record, 24 hrs 0.00 0.85 1.14 NA NA 0.08 0.93 1.22 NA NA XXX 93226 A ECG monitor/report, 24 hrs 0.00 1.18 1.93 NA NA 0.14 1.32 2.07 NA NA XXX 93231 A Ecg monitor/record, 24 hrs 0.00 0.71 1.32 NA NA 0.11 0.82 1.43 NA NA XXX 93232 A ECG monitor/report, 24 hrs 0.00 1.34 1.97 NA NA 0.13 1.47 2.10 NA NA XXX 93503 A Insert/place heart catheter 2.91 NA NA 0.47 0.63 0.20 NA NA 3.58 3.74 000 93539 A Injection, cardiac cath 0.40 NA NA 0.22 0.18 0.01 NA NA 0.63 0.59 000 93540 A Injection, cardiac cath 0.43 NA NA 0.24 0.19 0.01 NA NA 0.68 0.63 000 93541 A Injection for lung angiogram 0.29 NA NA 0.15 0.12 0.01 NA NA 0.45 0.42 000 93542 A Injection for heart x-rays 0.29 NA NA 0.15 0.12 0.01 NA NA 0.45 0.42 000 93543 A Injection for heart x-rays 0.29 NA NA 0.16 0.12 0.01 NA NA 0.46 0.42 000 93544 A Injection for aortography 0.25 NA NA 0.13 0.11 0.01 NA NA 0.39 0.37 000 93545 A Inject for coronary x-rays 0.40 NA NA 0.22 0.18 0.01 NA NA 0.63 0.59 000 95991 A Spin/brain pump refill & main 0.77 1.63 1.53 0.18 0.17 0.06 2.46 2.36 1.01 1.00 XXX 98960 B Self-mgmt educ & train, 1 pt 0.00+ 0.57 0.57 NA NA 0.01 0.58 0.58 NA NA XXX 98961 B Self-mgmt educ/train, 2-4 pt 0.00+ 0.27 0.27 NA NA 0.01 0.28 0.28 NA NA XXX 98962 B Self-mgmt educ/train, 5-8 pt 0.00+ 0.20 0.20 NA NA 0.01 0.21 0.21 NA NA XXX G9041 A Low vision rehab occupationa 0.44 0.29 0.29 0.29 0.29 0.01 0.74 0.74 0.74 0.74 XXX G9042 A Low vision rehab orient/mobi 0.10 0.29 0.29 0.29 0.29 0.01 0.40 0.40 0.40 0.40 XXX G9043 A Low vision lowvision therapi 0.10 0.29 0.29 0.29 0.29 0.01 0.40 0.40 0.40 0.40 XXX G9044 A Low vision rehabilate teache 0.10 0.23 0.23 0.23 0.23 0.01 0.40 0.40 0.40 0.40 XXX 1 CPT codes and descriptions only are copyright 2006 American Medical Association. All Rights Reserved. Applicable FARS/DFARS apply. 3 + Indicates RVUs are not used for Medicare payment. 2. On pages 70022 through 70043, the title of Addendum G is corrected to read as follows: “CY 2007 ESRD WAGE INDEX FOR URBAN AREAS BASED ON CBSA LABOR MARKET AREAS.” 3. On page 70037, the wage index value for CBSA code 39820, Redding CA is corrected to read “1.3895”. 4. In Addendum J: a. On page 70247, in the 3rd column, the entries for CPT codes 78267 and 78268 and their respective descriptors are corrected by placing them in numerical order. b. On page 70248, in the 2nd column, the descriptors for CPT codes 0174T and 0175T are corrected by revising “crx” to read “cxr”. c. On page 70250, in the 1st column, the entry for CPT code 78350 is removed. d. On page 70250, in the 3rd column, the descriptors for HCPCS codes A9567, A9568, Q9952 and Q9953 are corrected to read as follows: Addendum J.—List of CPT 1 /HCPCS Codes Used To Describe Certain Designated Health Service Categories 2 Under Section 1877 of the Social Security Act [Effective Date January 1, 2007] RADIATION THERAPY SERVICES AND SUPPLIES CPT code Descriptor A9567 Technetium TC-99m aerosol. A9568 Technetium tc99m arcitumomab. Q9952 Inj Gad-base MR contrast,1ml. Q9953 Inj Fe-base MR contrast,1ml. 1 CPT codes and descriptions only are copyright 2006 American Medical Association. All rights are reserved and applicable FARS/DFARS clauses apply. 2 This list does not include codes for the following designated health service
(DHS)categories: durable medical equipment and supplies; parenteral and enteral nutrients, equipment and supplies; prosthetics, orthotics, and prosthetic devices and supplies; home health services; outpatient prescription drugs; and inpatient and outpatient hospital services. For the definitions of these DHS categories, refer to § 411.351. For more information, refer to *http://cms.hhs.gov/PhysicianSelfReferral/* . e. On page 70251, in the 2nd column, the descriptor for HCPCS code G0173 is corrected to read, “Linear acc stereo radsur com”, and HCPCS code G0243 and its descriptor are removed. f. On page 70251, in the 3rd column, the Web site in the last sentence of the second footnote is corrected to read *http://www.cms.hhs.gov/PhysicianSelfReferral/* . V. Waiver of Proposed Rulemaking and Delay in Effective Date We ordinarily publish a notice of proposed rulemaking in the **Federal Register** to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act
(APA)(5 U.S.C. 553(b)). However, we can waive the notice and comment procedures if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the rule. Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued. This correcting amendment addresses technical errors and omissions made in FR Doc. 06-9086, entitled “Medicare Program; Revisions to Payment Policies, Five-Year Review of Work Relative Value Units, and Changes to the Practice Expense Methodology Under the Physician Fee Schedule, and Other Changes to Payment Under Part B; Revisions to the Payment Policies of Ambulance Services Under the Fee Schedule for Ambulance Services; Ambulance Inflation Factor Update for CY 2007,” which appeared in the December 1, 2006 **Federal Register** (71 FR 69624), and was effective January 1, 2007. This correcting amendment identifies errors and technical correction that are in addition to those identified in the correction notice that appeared in the December 8, 2006 **Federal Register** (71 FR 58415). The provisions of this final rule with comment period have been previously subjected to notice and comment procedures. Except as noted below, these corrections are consistent with the discussion and text of the final rule with comment period, and do not make substantive changes to the CY 2007 published rule. As such, this correcting amendment is intended to ensure the CY 2007 PFS final rule with comment period accurately reflects the policies adopted in that rule. With respect to most of the corrections in this correcting amendment, we find, therefore, that it is unnecessary and would be contrary to the public interest to undertake further notice and comment procedures to incorporate these corrections into the final rule with comment period. Except as noted below, for the same reasons, we are also waiving the 30-day delay in effective date for this correcting amendment. We believe that it is in the public interest to ensure that the CY 2007 PFS final rule with comment period accurately states our policies relating to the PFS and other Part B payment policies. Therefore, except as noted otherwise, we find that delaying the effective date of these corrections beyond the January 1, 2007 effective date of the final rule with comment period would be contrary to the public interest. In so doing, we also find good cause to waive the 30-day delay in the effective date. With respect to the corrections to pages 69699 and 69785 concerning revisions to the performance standards for IDTFs, we find that it would be impracticable and contrary to the public interest to seek public comments before correcting this regulation. The current regulatory language is erroneous because it would require IDTFs to list the serial numbers for all diagnostic equipment in its comprehensive liability insurance policy. This requirement would be impracticable for several reasons. For one, most IDTFs would be unable to comply with this requirement because only some of their diagnostic equipment is onsite. Secondly, this requirement would have the unintended effect of changing the comprehensive liability insurance policy into a different type of insurance policy. For the same reasons, we are waiving the 30-day delay in effective date for these corrections. The corrections to pages 69699 and 69785 concerning revisions to the performance standards for IDTFs are effective April 16, 2007. With respect to the corrections to § 411.15(o), we find it would be contrary to the public interest to seek public comments before correcting this regulation. The current regulatory language is erroneous and misleading for it suggests that Medicare payment could be made for certain category A devices for which questions of safety and effectiveness have not been resolved (§ 405.201). Moreover, payment for category A devices in these circumstances would be inconsistent with Congressional intent in enacting section 1862(m) of the Act. Section 1871(e)(1)(A) of the Act, as amended by section 903(b)(1) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(MMA)(Pub. L. 108-173), generally prohibits the Secretary from making retroactive substantive changes in policy unless retroactive application of the change is necessary to comply with statutory requirements, or failure to apply the change retroactively would be contrary to the public interest. We are making the corrections to § 411.15(o) retroactive because failure to apply the change retroactively to January 1, 2007 would be contrary to the public interest because it would fail to preserve the public fisc. *OPM* v. *Richmond* , 496 U.S. 414 (1990). Moreover, retroactivity is necessary to comply with statutory requirements in section 1862(m) of the Act which did not authorize payment for category A devices. (Catalog of Federal Domestic Assistance Program No. 93.774, Medicare—Supplementary Medical Insurance Program) Dated: April 5, 2007. Ann C. Agnew, Executive Secretary to the Department. Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendments: PART 410—SUPPLEMENTARY MEDICAL INSURANCE
(SMI)BENEFITS 1. The authority citation for part 410 continues to read as follows: Authority: Secs. 1102, 1834, and 1871 of the Social Security Act (42 U.S.C. 1302, 1395m, and 1395hh). Subpart B—Medical and Other Health Services 2. Section 410.33 is amended by— A. Revising paragraph (a)(2). B. Revising paragraph (g)(6). The revisions read as follows: § 410.33 [Amended]
(a)* * *
(2)*Exceptions* . The following diagnostic tests that are payable under the physician fee schedule and furnished by a nonhospital testing entity are not required to be furnished in accordance with the criteria set forth in paragraphs
(b)through
(e)and
(g)and
(h)of this section.
(g)* * *
(6)Have a comprehensive liability insurance policy of at least $300,000 per location that covers both the place of business and all customers and employees of the IDTF. The policy must be carried by a nonrelative-owned company. PART 411—EXCLUSIONS FROM MEDICARE AND LIMITATIONS ON MEDICARE PAYMENT 3. The authority citation for part 411 is amended to read as follows: Authority: Secs. 1102, 1860D-1 through 1860D-42, 1871, and 1877 of the Social Security Act (42 U.S.C. 1302, 1395w-101 through 1395w-152, 1395hh, and 1395nn). Subpart A—General Exclusions and Exclusion of Particular Services 4. Section 411.15 is amended by revising paragraph
(o)to read as follows: § 411.15 [Amended]
(o)Experimental or investigational devices, except for certain devices.
(1)Categorized by the FDA as a non-experimental/investigational (Category B) device defined in § 405.201(b) of this chapter; and
(2)Furnished in accordance with the FDA-approved protocols governing clinical trials. PART 414—PAYMENT FOR PART B MEDICAL AND OTHER HEALTH SERVICES 5. The authority citation for Part 414 continues to read as follows: Authority: Secs. 1102, 1871, and 1881(b)(l) of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395rr(b)(l)). Subpart J—Submission of Manufacturer's Average Sales Price Data 6. Section 414.804(a)(3)(iv) is revised to read as follows: § 414.804 [Amended]
(a)* * *
(3)* * *
(iv)*Example.* After adjusting for exempted sales, the total lagged price concessions (discounts, rebates, etc.) over the most recent 12-month period available associated with sales for National Drug Code 12345-6789-01 subject to the ASP reporting requirement equal $200,000, and the total in dollars for the sales subject to the average sales price reporting requirement for the same period equals $600,000. The lagged price concessions percentage for this period equals 200,000/600,000 = 0.33333. The total in dollars for the sales subject to the average sales price reporting requirement for the quarter being reported, equals $50,000 for 10,000 units sold. The manufacturer's average sales price calculation for this National Drug Code for this quarter is: $50,000−(0.33333 × $50,000) = $33,334 (net total sales amount); $33,334/10,000 = $3.33 (average sales price). [FR Doc. E7-6989 Filed 4-13-07; 8:45 am] BILLING CODE 4120-01-P NATIONAL TRANSPORTATION SAFETY BOARD 49 CFR Part 801 Public Availability of Information AGENCY: National Transportation Safety Board (NTSB). ACTION: Final rule. SUMMARY: The NTSB is updating its regulations regarding the availability of information. This amendment updates the NTSB regulations that implement the Freedom of Information Act
(FOIA)and Privacy Act, notifies the public of changes in the NTSB's Freedom of Information Act processing procedures and, in general, advises the public on the availability of information from NTSB accident investigations. DATES: This final rule will become effective May 23, 2007. ADDRESSES: A copy of the notice of proposed rulemaking (NPRM), published in the **Federal Register** , is available for inspection and copying in the Board's public reading room, located at 490 L'Enfant Plaza, SW., Washington, DC 20594-2000. Alternatively, a copy of the NPRM is available on the Board's Web site, at *http://www.ntsb.gov.* FOR FURTHER INFORMATION CONTACT: Gary L. Halbert, General Counsel,
(202)314-6080. SUPPLEMENTARY INFORMATION: Regulatory History On November 22, 2006, the NTSB published a notice of proposed rulemaking entitled, “Public Availability of Information,” in the **Federal Register** (71 FR 67523). This NPRM set forth amendments to the Board's regulations regarding the availability of information, and provided updated information regarding how the public may obtain NTSB records. The NPRM also set forth an updated fee schedule to apply to requests for NTSB records. Discussion of Comments and Changes The NTSB did not receive any comments regarding the aforementioned NPRM. The NTSB also did not receive any requests for a public meeting; therefore, the NTSB did not hold a public meeting on the NPRM. In the interest of ensuring that all provisions of 49 CFR part 801 are accurate and complete, the Board's final rule herein will include one minor revision to § 801.60(a) that the NTSB did not include in the NPRM: In the final sentence of § 801.60(a), the rule will now advise requesters to “pay fees in accordance with the instructions provided on the invoice the FOIA Office sends to the requester.” The language of § 801.60(a) in the NPRM had directed requesters to pay fees via check or money order. In the interest of ensuring that changes in banking technology, resources, and the like do not compel the NTSB to continually amend provisions of part 801, the final rule will advise requesters to refer to the payment instructions on each invoice that they receive. Statutory and Regulatory Evaluation This rule provides current, accurate information to the public regarding how the public may obtain NTSB records and information. This rule will serve to inform and assist the public with regard to obtaining NTSB records and information. This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of the potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this rule under Executive Order 12866. Likewise, this rule does not require an analysis under the Unfunded Mandates Reform Act, 2 U.S.C. 1501-1571, or the National Environmental Policy Act, 42 U.S.C. 4321-4347. In addition, the NTSB has considered whether this rule would have a significant economic impact on a substantial number of small entities, under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule requests no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Furthermore, the NTSB does not anticipate that this rule will have a substantial, direct effect on State or local governments; as such, this rule does not have implications for federalism under Executive Order 13132, Federalism. This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. In addition, the NTSB has evaluated this rule under: Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights; Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks; Executive Order 13175, Consultation and Coordination with Indian Tribal Governments; Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use; and the National Technology Transfer and Advancement Act, 15 U.S.C. 272 note. The NTSB has concluded that this rule does not contravene any of the requirements set forth in these Executive Orders or statutes, nor does this rule prompt further consideration with regard to such requirements. List of Subjects in 49 CFR Part 801 Archives and records, Freedom of information, Privacy. For the reasons discussed in the preamble, the NTSB revises 49 CFR part 801 to read as follows: PART 801—PUBLIC AVAILABILITY OF INFORMATION Subpart A—Applicability and Policy Sec. 801.1 Applicability. 801.2 Policy. 801.3 Definitions. Subpart B—Administration 801.10 General. 801.11 Segregability of records. 801.12 Protection of records. Subpart C—Time Limits 801.20 Processing of records. 801.21 Initial determination. 801.22 Final determination. 801.23 Extension. Subpart D—Accident Investigation Records 801.30 Records from accident investigations. 801.31 Public hearings regarding investigations. 801.32 Accident reports. Subpart E—Other Board Documents 801.40 The Board's rules. 801.41 Reports to Congress. Subpart F—Exemption from Public Disclosure 801.50 Exemptions from disclosure. 801.51 National defense and foreign policy secrets. 801.52 Internal personnel rules and practices of the NTSB. 801.53 Records exempt by statute from disclosure. 801.54 Trade secrets and commercial or financial information. 801.55 Interagency and intra-agency exchanges. 801.56 Unwarranted invasion of personal privacy. 801.57 Records compiled for law enforcement purposes. 801.58 Records for regulation of financial institutions. 801.59 Geological records. Subpart G—Fee Schedule 801.60 Fee schedule. 801.61 Appeals of fee determinations. Authority: Independent Safety Board Act of 1974, as amended (49 U.S.C. 1101-1155); 5 U.S.C. 551(2); Freedom of Information Act (5 U.S.C. 552); 18 U.S.C. 641 and 2071; 31 U.S.C. 3717 and 9701; Federal Records Act, 44 U.S.C. Chapters 21, 29, 31, and 33. Subpart A—Applicability and Policy § 801.1 Applicability.
(a)This part contains the rules that the National Transportation Safety Board
(NTSB)follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be read together with the FOIA, which provides additional information about public access to records maintained by the NTSB.
(b)This part also provides for document services and the fees for such services, pursuant to 31 U.S.C. 9701.
(c)This part applies only to records existing when the request for the information is made. The NTSB is not required to create records for the sole purpose of responding to a FOIA request.
(d)Sections 801.51 through 801.59 of this chapter describe records that are exempt from public disclosure. § 801.2 Policy.
(a)In implementing 5 U.S.C. 552, it is the policy of the NTSB to make information available to the public to the greatest extent possible, consistent with the mission of the NTSB. Information the NTSB routinely provides to the public as part of a regular NTSB activity (such as press releases and information disclosed on the NTSB's public Web site) may be provided to the public without compliance with this part. In addition, as a matter of policy, the NTSB may make discretionary disclosures of records or information otherwise exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption; however, this policy does not create any right enforceable in court.
(b)Given the NTSB's stated policy of providing as much information as possible regarding general NTSB operations and releasing documents involving investigations, the NTSB strongly encourages requesters seeking information to check the NTSB's Web site for such information before submitting a FOIA request. For every investigation in which the NTSB has determined the probable cause of an accident, the NTSB's docket management system will include a “public docket” containing documentation that the investigator-in-charge deemed pertinent to the investigation. Requesters may obtain these public dockets without submitting a FOIA request. The NTSB encourages all requesters to review the public docket materials *before* submitting a FOIA request. § 801.3 Definitions. The following definitions shall apply in this part:
(a)“Record” includes any writing, drawing, map, recording, tape, film, photo, or other documentary material by which information is preserved. In this part, “document” and “record” shall have the same meaning.
(b)“Redact” refers to the act of making a portion of text illegible by placing a black mark on top of the text.
(c)“Public Docket” includes a collection of records from an accident investigation that the investigator who oversaw the investigation of that accident has deemed pertinent to determining the probable cause of the accident.
(d)“Non-docket” items include other records from an accident that the investigator who oversaw the investigation of that accident has deemed irrelevant or not directly pertinent to determining the probable cause of the accident.
(e)“Chairman” means the Chairman of the NTSB.
(f)“Managing Director” means the Managing Director of the NTSB.
(g)“Requester” means any person, as defined in 5 U.S.C. 551(2), who submits a request pursuant to the FOIA. Subpart B—Administration § 801.10 General.
(a)The NTSB's Chief, Records Management Division, is responsible for the custody and control of all NTSB records required to be preserved under the Federal Records Act, 44 U.S.C. Chapters 21, 29, 31, and 33.
(b)The NTSB's FOIA Officer shall be responsible for the initial determination of whether to release records within the 20-working-day time limit, or the extension specified in the Freedom of Information Act.
(c)The NTSB's Chief, Records Management Division, shall:
(1)Maintain for public access and commercial reproduction all accident files containing aviation and surface investigators' reports, factual accident reports or group chairman reports, documentation and accident correspondence files, transcripts of public hearings, if any, and exhibits; and
(2)Maintain a public reference room, also known as a “Reading Room,” in accordance with 5 U.S.C. 552(a)(2). The NTSB's public reference room is located at 490 East L'Enfant Plaza, SW., Washington, DC. Other records may be available in the NTSB's Electronic Reading Room, which is located on the NTSB's Web site, found at *http://www.ntsb.gov.*
(d)Requests for documents must be made in writing to: National Transportation Safety Board, Attention: FOIA Officer CIO-40, 490 L'Enfant Plaza, SW., Washington, DC 20594-2000. All requests:
(1)Must reasonably identify the record requested. For requests regarding an investigation of a particular accident, requesters should include the date and location of the accident, as well as the NTSB investigation number. In response to broad requests for records regarding a particular investigation, the FOIA Office will notify the requester of the existence of a public docket, and state that other non-docket items may be available, or may become available, at a later date. After receiving this letter and reviewing the items in the public docket, requesters should notify the FOIA office if the items contained in the public docket suffice to fulfill their request.
(2)Must be accompanied by the fee or agreement (if any) to pay the reproduction costs shown in the fee schedule at § 801.60 of this title, and
(3)Must contain the name, address, and telephone number of the person making the request. Requesters must update their address and telephone number in writing should this information change.
(e)The envelope in which the requester submits the request should be marked prominently with the letters “FOIA.” If a request fails to include a citation to the FOIA, the NTSB FOIA Office will attempt to contact the requester immediately to rectify the omission and/or clarify the request. However, the 20-working-day time limit for processing shall not commence until the FOIA Office receives a complete request.
(f)The field offices of the NTSB shall not maintain, for public access, records maintained by the Chief, Records Management Division. Requests mailed to NTSB field offices will not satisfy the NTSB's requirements for submitting a FOIA request.
(g)The NTSB may work with a commercial reproduction firm to accommodate requests for reproduction of accident records from the public docket. The reproduction charges may be subject to change. The NTSB will update its FOIA Web site to reflect any such changes. Section 801.60 of this title contains a current fee schedule.
(h)The NTSB will not release records originally generated by other agencies or entities. Instead, the NTSB will refer such requests for other agencies' records to the appropriate agency, which will make a release determination upon receiving and processing the referred request.
(i)Where a requester seeks a record on behalf of another person, and the record contains that person's personal information protected by Exemption 6 of the FOIA (see section 801.56 of this title), the NTSB requires the requester to submit a notarized statement of consent from the person whose personal information is contained in the record, before the NTSB releases the record.
(j)In general, the NTSB will deny requests for records concerning a pending investigation, pursuant to appropriate exemptions under the FOIA. The FOIA Office will notify the requester of this denial, and will provide the requester with information regarding how the requester may receive information on the investigation once the investigation is complete. The NTSB discourages requesters from submitting multiple FOIA requests in a continuing effort to obtain records before an investigation is complete. § 801.11 Segregability of records. The initial decision of the FOIA Officer will include a determination of segregability. If it is reasonable to do so, the exempt portions of a record will be segregated and, where necessary, redacted, and the nonexempt portions will be sent to the requester. § 801.12 Protection of records.
(a)No person may, without permission, remove from the place where it is made available any record made available for inspection or copying under § 801.10(c)(2) of this part. Stealing, altering, mutilating, obliterating, or destroying, in whole or in part, such a record shall be deemed a criminal offense.
(b)Section 641 of title 18 of the United States Code provides, in pertinent part, as follows: “Whoever * * * steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record * * * or thing of value of the United States or of any department or agency thereof * * * shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.”
(c)Section 2071(a) of title 18 of the United States Code provides, in pertinent part, as follows: Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited * * * in any public office, or with any * * * public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both. Subpart C—Time Limits § 801.20 Processing of requests.
(a)The NTSB processes FOIA requests upon receipt. The NTSB FOIA Office may notify the requester that the NTSB has received the request. The FOIA Office will then place each request on one of three tracks:
(1)Track 1: Requests for which there are no records, requests that meet the criteria for expedited processing, or requests that seek records that have been produced in response to a prior request.
(2)Track 2: Requests that do not involve voluminous records or lengthy consultations with other entities.
(3)Track 3: Requests that involve voluminous records and for which lengthy or numerous consultations are required, or those requests which may involve sensitive records.
(b)Regarding expedited processing, if a requester states that he or she has a compelling need for the expedited treatment of their request, then the NTSB FOIA Office will determine whether to expedite the request and, where appropriate, do so. § 801.21 Initial determination. The NTSB FOIA Officer will make an initial determination as to whether to release a record within 20 working days (excluding Saturdays, Sundays, and legal public holidays) after the request is received. This time limit may be extended up to 10 additional working days in accordance with § 801.23 of this part. The person making the request will be notified immediately in writing of such determination. If a determination is made to release the requested record(s), such record(s) will be made available promptly. If the FOIA Officer determines not to release the record(s), the person making the request will, when he or she is notified of such determination, be advised of:
(a)The reason for the determination,
(b)the right to appeal the determination, and
(c)the name and title or positions of each person responsible for the denial of the request. § 801.22 Final determination. Requesters seeking an appeal of the FOIA Officer's initial determination must send a written appeal to the NTSB's Managing Director within 20 days. The NTSB's Managing Director will determine whether to grant or deny any appeal made pursuant to § 801.21 within 20 working days (excluding Saturdays, Sundays, and legal public holidays) after receipt of such appeal, except that this time limit may be extended for as many as 10 additional working days, in accordance with § 801.23. § 801.23 Extension. In unusual circumstances as specified in this section, the time limits prescribed in either § 801.21 or § 801.22, may be extended by written notice to the person making a request and setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. Such notice will not specify a date that would result in an extension for more than 10 working days. As used in this paragraph, “unusual circumstances,” as they relate to any delay that is reasonably necessary to the proper processing of the particular request, means—
(a)The need to search for and collect the requested records from field facilities or other establishments;
(b)The need to search for, collect, and appropriately examine and process a voluminous amount of records which are the subject of a single request; or
(c)The need to consult with another agency that has a substantial interest in the disposition of the request or with two or more components of the agency having substantial subject-matter interest therein. Subpart D—Accident Investigation Records § 801.30 Records from accident investigations. Upon completion of an accident investigation, each NTSB investigator (or “group chairman,” depending on the investigation) shall complete a factual report with supporting documentation and include these items in the public docket for the investigation. The Chief, Records Management Division, will then make the records available to the public for inspection or production by an order for commercial copying. § 801.31 Public hearings regarding investigations. Within approximately four
(4)weeks after a public hearing concerning an investigation, the Chief, Records Management Division, will make available to the public the hearing transcript. On or before the date of the hearing, the Chief, Records Management Division, will make the exhibits introduced at the hearing available to the public for inspection or commercial copy order. § 801.32 Accident reports.
(a)The NTSB will report the facts, conditions, and circumstances, and its determination of the probable causes of U.S. civil transportation accidents, in accordance with 49 U.S.C. 1131(e).
(b)These reports may be made available for public inspection in the NTSB's public reference room and/or on the NTSB's Web site, at *http://www.ntsb.gov.* Subpart E—Other Board Documents § 801.40 The Board's rules. The NTSB's rules are published in the Code of Federal Regulations as Parts 800 through 850 of Title 49. § 801.41 Reports to Congress. The NTSB submits its annual report to Congress each year, in accordance with 49 U.S.C. 1117. The report will be available on the NTSB's Web site, found at *http://www.ntsb.gov.* Interested parties may purchase the report from the Government Printing Office or review it in the NTSB's public reference room. All other reports or comments to Congress will be available in the NTSB's public reference room for inspection or by ordering a copy after issuance. Subpart F—Exemption From Public Disclosure § 801.50 Exemptions from disclosure. Title 5, United States Code section 552(a) and
(b)exempt certain records from public disclosure. As stated in § 801.2 of this title, the NTSB may choose to make a discretionary release of a record that is authorized to be withheld under 5 U.S.C. 552(b), unless it determines that the release of that record would be inconsistent with the purpose of the exemption concerned. Examples of records given in §§ 801.51 through 801.58 included within a particular statutory exemption are not necessarily illustrative of all types of records covered by the applicable exemption. § 801.51 National defense and foreign policy secrets. Pursuant to 5 U.S.C. 552(b)(1), national defense and foreign policy secrets established by Executive Order, as well as properly classified documents, are exempt from public disclosure. Requests to the NTSB for such records will be transferred to the source agency as appropriate, where such classified records are identified. (See, *e.g.* , Executive Order 12,958, as amended on March 25, 2003.) § 801.52 Internal personnel rules and practices of the NTSB. Pursuant to 5 U.S.C. 552(b)(2), the following records are exempt from disclosure under FOIA:
(a)Records relating solely to internal personnel rules and practices, including memoranda pertaining to personnel matters such as staffing policies, and procedures for the hiring, training, promotion, demotion, or discharge of employees, and management plans, records, or proposals relating to labor-management relations.
(b)Records regarding:
(1)Internal matters of a relatively trivial nature that have no significant public interest, and
(2)Predominantly internal matters, the release of which would risk circumvention of a statute or agency regulation. § 801.53 Records exempt by statute from disclosure. Pursuant to 5 U.S.C. 552(b)(3), the NTSB will not disclose records specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)), provided that such statute:
(a)Requires that the matters be withheld from the public in such manner as to leave no discretion on the issue, or
(b)Establishes particular criteria for withholding or refers to particular types of matters to be withheld. § 801.54 Trade secrets and commercial or financial information. Pursuant to 5 U.S.C. 552(b)(4), trade secrets and items containing commercial or financial information that are obtained from a person and are privileged or confidential are exempt from public disclosure. § 801.55 Interagency and intra-agency exchanges.
(a)Pursuant to 5 U.S.C. 552(b)(5), any record prepared by an NTSB employee for internal Government use is exempt from public disclosure to the extent that it contains—
(1)Opinions made in the course of developing official action by the NTSB but not actually made a part of that official action, or
(2)Information concerning any pending NTSB proceeding, or similar matter, including any claim or other dispute to be resolved before a court of law, administrative board, hearing officer, or contracting officer.
(b)The purpose of this section is to protect the full and frank exchange of ideas, views, and opinions necessary for the effective functioning of the NTSB. These resources must be fully and readily available to those officials upon whom the responsibility rests to take official NTSB action. Its purpose is also to protect against the premature disclosure of material that is in the developmental stage, if premature disclosure would be detrimental to the authorized and appropriate purposes for which the material is being used, or if, because of its tentative nature, the material is likely to be revised or modified before it is officially presented to the public.
(c)Examples of materials covered by this section include, but are not limited to, staff papers containing advice, opinions, or suggestions preliminary to a decision or action; preliminary notes; advance information on such things as proposed plans to procure, lease, or otherwise hire and dispose of materials, real estate, or facilities; documents exchanged in preparation for anticipated legal proceedings; material intended for public release at a specified future time, if premature disclosure would be detrimental to orderly processes of the NTSB; records of inspections, investigations, and surveys pertaining to internal management of the NTSB; and matters that would not be routinely disclosed in litigation but which are likely to be the subject of litigation. § 801.56 Unwarranted invasion of personal privacy. Pursuant to 5 U.S.C. 552(b)(6), any personal, medical, or similar file is exempt from public disclosure if its disclosure would harm the individual concerned or would be a clearly unwarranted invasion of the person's personal privacy. § 801.57 Records compiled for law enforcement purposes. Pursuant to 5 U.S.C. 552(b)(7), any records compiled for law or regulatory enforcement are exempt from public disclosure to the extent that disclosure would interfere with enforcement, would be an unwarranted invasion of privacy, would disclose the identity of a confidential source, would disclose investigative procedures and practices, or would endanger the life or security of law enforcement personnel. § 801.58 Records for regulation of financial institutions. Pursuant to 5 U.S.C. 552(b)(8), records compiled for agencies regulating or supervising financial institutions are exempt from public disclosure. § 801.59 Geological records. Pursuant to 5 U.S.C. 552(b)(9), records concerning geological wells are exempt from public disclosure. Subpart G—Fee Schedule § 801.60 Fee schedule.
(a)*Authority.* Pursuant to 5 U.S.C. 552(a)(4)(i) and 52 FR 10,012 (Mar. 27, 1987), the NTSB may charge certain fees for processing requests under the FOIA in accordance with paragraph
(c)of this section, except where fees are limited under paragraph
(d)of this section, or where a waiver or reduction of fees is granted under paragraph
(e)of this section. The NTSB may collect all applicable fees before sending copies of requested records to a requester. A requester must pay fees in accordance with the instructions provided on the invoice the FOIA Office sends to the requester.
(b)*Definitions.* For purposes of this section:
(1)*Commercial use request* means a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests. This includes the furtherance of commercial interests through litigation. When it appears that the requester will use the requested records for a commercial purpose, either because of the nature of the request or because the NTSB has reasonable cause to doubt a requester's stated use, the NTSB shall provide the requester with a reasonable opportunity to submit further clarification.
(2)*Direct costs* means those expenses that an agency actually incurs in searching for, reviewing, and duplicating records in response to a FOIA request. This includes the salaries of employees performing the work, as listed below, but does not include overhead expenses such as the costs of office space.
(3)*Duplication* means the copying of a record, or of the information contained in a record, in response to a FOIA request.
(4)*Educational institution* means a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, that operates a program of scholarly research. In order for a requester to demonstrate that their request falls within the category of an “educational institution,” the requester must show that the request is authorized by the qualifying institution and that the requester does not seek the records for commercial use, but only to further scholarly research.
(5)*Representative of the news media* or “news media requester” means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization (for example, a journalist may submit a copy of a publication contract for which the journalist needs NTSB records).
(6)*Review* means the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. “Review” also includes processing the record(s) for disclosure, which includes redacting and otherwise preparing releasable records for disclosure. The NTSB may require review costs even if the NTSB ultimately does not release the record(s).
(7)*Search* means the process of looking for and retrieving records or information within the scope of a request. “Search” includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. The NTSB will make an effort to conduct such searches in the least expensive manner.
(c)*Fees.* In responding to FOIA requests, the NTSB will charge the following fees unless a waiver or reduction of fees has been granted under paragraph
(d)of this section:
(1)*Search.*
(i)The NTSB will charge search fees for all requests, unless an educational institution, a noncommercial scientific institution, or a news media representative submits a request containing adequate justification for obtaining a fee waiver. These fees, however, are subject to the limitations of paragraph
(d)of this section. The NTSB may charge for time spent searching even if the NTSB does not locate any responsive record or if the NTSB withholds the record(s) located because such record(s) are exempt from disclosure.
(ii)The NTSB will charge $4.00 for each quarter of an hour spent by clerical personnel in searching for and retrieving a requested record. Where clerical personnel cannot entirely perform a search and retrieval (for example, where the identification of records within the scope of a request requires the assistance of professional personnel), the applicable fee will instead be $7.00 for each quarter hour of search time spent by professional personnel. Where a request requires the time of managerial personnel, the fee will be $10.25 for each quarter hour of time spent by these personnel.
(2)*Duplication.* The NTSB will charge duplication fees, subject to the limitations of paragraph
(d)of this section.
(i)The NTSB utilizes the services of a commercial reproduction facility for requests for duplicates of NTSB public dockets and publications.
(ii)Regarding the reproduction of non-public records in response to a FOIA request, the NTSB will charge $0.10 per page for the duplication of a standard-size paper record. For other forms of duplication, the NTSB will charge the direct costs of the duplication.
(iii)Where the NTSB certifies records upon request, the NTSB will charge the direct cost of certification.
(3)*Review.* The NTSB will charge fees for the initial review of a record to determine whether the record falls within the scope of a request, or whether the record is exempt from disclosure. Such fees will be charged to requesters who make a request for commercial purposes. The NTSB will not charge for subsequent review of the request and responsive record; for example, in general, the NTSB will not charge additional fees for review at the administrative appeal level when the NTSB has already applied an exemption. The NTSB will charge review fees at the same rate as those charged for a search under paragraph (c)(1)(ii), above.
(c)*Limitations on charging fees.* For purposes of this section:
(1)The NTSB will not charge a fee for notices, decisions, orders, etc. provided to persons acting as parties in the investigation, or where required by law to be served on a party to any proceeding or matter before the NTSB. Likewise, the NTSB will not charge fees for requests made by family members of accident victims, when the NTSB has investigated the accident that is the subject of the FOIA request.
(2)The NTSB will not charge a search fee for requests from educational institutions or representatives of the news media.
(3)The NTSB will not charge a search fee or review fee for a quarter-hour period unless more than half of that period is required for search or review.
(4)Except for requesters seeking records for commercial use, the NTSB will provide the following items *without* charge:
(i)The first 100 pages of duplication (or the cost equivalent) of a record; and
(ii)The first two hours of search (or the cost equivalent) for a record.
(5)Whenever the total fee calculated under paragraph
(c)of this section is $14.00 or less for any request, the NTSB will not charge a fee.
(6)When the NTSB's FOIA Office determines or estimates that fees to be charged under this section will amount to more than $25.00, the Office will notify the requester of the actual or estimated amount of the fees, unless the requester has indicated a willingness to pay fees as high as those anticipated. If the FOIA Office is able to estimate only a portion of the expected fee, the FOIA Office will advise the requester that the estimated fee may be only a portion of the total fee. Where the FOIA Office notifies a requester that the actual or estimated fees will exceed $25.00, the NTSB will not expend additional agency resources on the request until the requester agrees in writing to pay the anticipated total fee. In circumstances involving a total fee that will exceed $250.00, the NTSB may require the requester to make an advance payment or deposit of a specific amount before beginning to process the request.
(7)The NTSB may charge interest on any unpaid bill starting on the 31st day following the date of billing the requester. Interest charges will be assessed at the rate provided at 31 U.S.C. 3717 and will accrue from the date of the billing until the NTSB receives payment. The NTSB shall follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.
(8)Where a requester has previously failed to pay a properly charged FOIA fee to the NTSB within 30 days of the date of billing, the NTSB may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before the NTSB begins to process a new request or continues to process a pending request from that requester.
(9)Where the NTSB reasonably believes that a requester or group of requesters acting together is attempting to divide a request into multiple series of requests for the purpose of avoiding fees, the NTSB may aggregate those requests and charge accordingly.
(d)*Requirements for waiver or reduction of fees.* For fee purposes, the NTSB will determine, whenever reasonably possible, the use to which a requester will put the requested records.
(1)The NTSB will furnish records responsive to a request without charge, or at a reduced charge, where the NTSB determines, based on all available information, that the requester has shown that:
(i)Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations of activities of the government, and
(ii)Disclosure of the requested information is not primarily in the commercial interest or for the commercial use of the requester.
(2)In determining whether disclosure of the requested information is in the public interest, the NTSB will consider the following factors:
(i)Whether the subject of the requested records concerns identifiable operations or activities of the federal government, with a connection that is direct and clear, and not remote or attenuated. In this regard, the NTSB will consider whether a requester's use of the documents would enhance transportation safety or contribute to the NTSB's programs.
(ii)Whether the portions of a record subject to disclosure are meaningfully informative about government operations or activities. The disclosure of information already in the public domain, in either a duplicative or substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding.
(iii)Whether disclosure of the requested information would contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. The NTSB will consider a requester's expertise in the subject area and ability to effectively convey information to the public.
(iv)Whether the disclosure is likely to enhance the public's understanding of government operations or activities.
(3)In determining whether the requester is primarily in the commercial interest of the requester, the NTSB will consider the following factors:
(i)The existence and magnitude of any commercial interest the requester may have, or of any person on whose behalf the requester may be acting. The NTSB will provide requesters with an opportunity in the administrative process to submit explanatory information regarding this consideration.
(ii)Whether the commercial interest is greater in magnitude than any public interest in disclosure.
(4)Additionally, the NTSB may, at its discretion, waive publication, reproduction, and search fees for qualifying foreign countries, international organizations, nonprofit public safety entities, State and Federal transportation agencies, and colleges and universities, after approval by the Chief, Records Management Division.
(5)Where only some of the records to be released satisfy the requirements for a waiver of fees, the NTSB will grant a waiver for those particular records.
(6)Requests for the waiver or reduction of fees should address the factors listed in paragraphs (e)(2) and (e)(3) of this section, insofar as they apply to each request. The NTSB will exercise its discretion to consider the cost-effectiveness of its use of administrative resources in determining whether to grant waivers or reductions of fees.
(e)Services available free of charge.
(1)The following documents are available without commercial reproduction cost until limited supplies are exhausted:
(i)Press releases;
(ii)Safety Board regulations (Chapter VIII of Title 49, Code of Federal Regulations);
(iii)Indexes to initial decisions, Board orders, opinion and orders, and staff manuals and instructions;
(iv)Safety recommendations; and
(v)NTSB Annual Reports.
(2)The NTSB public Web site, located at *http://www.ntsb.gov* , also includes an e-mail subscription service for press releases, safety recommendations, and other announcements. § 801.61 Appeals of fee determinations. Requesters seeking an appeal of the FOIA Officer's fee or fee waiver determination must send a written appeal to the NTSB's Managing Director within 20 days. The NTSB's Managing Director will determine whether to grant or deny any appeal made pursuant to § 801.21 within 20 working days (excluding Saturdays, Sundays, and legal public holidays) after receipt of such appeal, except that this time limit may be extended for as many as 10 additional working days, in accordance with § 801.23. Dated: April 10, 2007. Vicky D'Onofrio, Federal Register Liaison Officer. [FR Doc. E7-7103 Filed 4-13-07; 8:45 am] BILLING CODE 7533-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070213033-7033-01; I.D. 040907D] Fisheries of the Economic Exclusive Zone Off Alaska; Pacific Cod in the Bering Sea and Aleutian Islands AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; modification of a closure. SUMMARY: NMFS is opening directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 meters (m)) length overall
(LOA)using pot or hook-and-line gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to fully use the 2007 total allowable catch
(TAC)of Pacific cod specified for catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), April 30, 2007, through 2400 hrs, A.l.t., December 31, 2007. Comments must be received at the following address no later than 4:30 p.m., A.l.t., April 30, 2007. ADDRESSES: Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. Comments may be submitted by: • Mail to: P.O. Box 21668, Juneau, AK 99802; • Hand delivery to the Federal Building, 709 West 9th Street, Room 420A, Juneau, Alaska; • FAX to 907-586-7557; • E-mail to *inseason-akr@noaa.gov* and include in the subject line and body of the e-mail the document identifier: bspclt60re.fo.wpd (E-mail comments, with or without attachments, are limited to 5 megabytes); or • Webform at the Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions at that site for submitting comments. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area
(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. NMFS closed directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear in the BSAI under § 679.20(d)(1)(iii) on March 30, 2007 (72 FR 15848, April 3, 2007). NMFS has determined that as of April 6, 2007, approximately 411 metric tons of Pacific cod remain in the 2007 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear in the BSAI. Therefore, in accordance with § 679.25(a)(2)(i)(C) and (a)(2)(iii)(D), and to fully use the 2007 TAC of Pacific cod specified for catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear in the BSAI. The opening is effective 1200 hrs, A.l.t., April 30, 2007, through 2400 hrs, A.l.t., December 31, 2007. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of the Pacific cod fishery by catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of April 6, 2007. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher vessels less than 60 feet (18.3 m) LOA using pot or hook-and-line gear in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until April 30, 2007. This action is required by § 679.25 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: April 10, 2007 James P. Burgess Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-7192 Filed 4-13-07; 8:45 am] BILLING CODE 3510-22-S 72 72 Monday, April 16, 2007 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 925 [Docket No. AMS-FV-07-0028; FV07-925-1 PR] Grapes Grown in a Designated Area of Southeastern California; Change in Reporting Requirements AGENCY: Agricultural Marketing Service, USDA. ACTION: Proposed rule. SUMMARY: This rule invites comments on a revision to the reporting requirements established under the California desert grape marketing order, which regulates the handling of grapes grown in a designated area of Southeastern California. The marketing order is administered locally by the California Desert Grape Administrative Committee (CDGAC or committee). This rule would require handlers to provide an annual report to the committee which lists the acreages devoted to grapes for fresh shipment, the owners and locations of the acreages, and varieties produced thereon that the handler will be handling during the upcoming season. This change would allow the committee to collect information on the acreage and varieties of desert grapes regulated under the marketing order, thus improving data collection and the efficient operation of the program. DATES: Comments must be received by May 1, 2007. ADDRESSES: Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax:
(202)720-8938; or Internet: *http://www.regulations.gov* . All comments should reference the docket number and the date and page number of this issue of the **Federal Register** and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: *http://www.regulations.gov* FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:
(559)487-5901, Fax:
(559)487-5906, or E-mail: *Terry.Vawter@usda.gov* or *Kurt.Kimmel@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491, Fax:
(202)720-8938, or E-mail: *Jay.Guerber@usda.gov* . SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing Agreement and Order No. 925, both as amended (7 CFR part 925), regulating the handling of grapes grown in a designated area of southeastern California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture
(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposal will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule would change the reporting requirement under the order by requiring handlers to file an annual acreage survey which lists the acreages devoted to grapes, the locations and owners of the acreage, and varieties produced thereon for fresh shipment that the handler will be handling during the upcoming season. The form would provide information necessary for the committee to estimate annual production, determine the necessary assessment rate, and establish an annual budget of expenses. This change was unanimously recommended by the committee at a meeting on February 6, 2007. Section 925.60 provides authority for the committee, with the approval of USDA, to require handlers to furnish information to the committee. Currently, § 925.60(a) requires handlers to file reports of shipments of grapes. Under § 925.60(b), the committee is authorized, with the approval of USDA, to require handlers to furnish such other information as it may prescribe and may be necessary to enable the committee to perform its duties under the order. The acreage survey is currently an approved form authorized for use by the committee. The form was initially included so that the committee could, at some future time, recommend requiring handlers to use the form if it was determined that aggregating information on grape acreage would provide a benefit to the industry. The committee met on February 6, 2007, and discussed the grape acreage survey. At this time, the committee believes the report would provide valuable information and unanimously recommended that it be a mandatory report, such as those authorized under § 925.60. This change is intended to enhance the efficient operation of the program by permitting the committee to collect production data, which, in turn, would allow them to have more accurate information for establishing a crop estimate, determining an assessment rate, and developing an annual budget of expenses. Initial Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are approximately 50 producers of grapes in the production area and approximately 20 handlers subject to regulation under the marketing order. The Small Business Administration (13 CFR 121.201) defines small agricultural producers as those having annual receipts less than $750,000 and defines small agricultural service firms as those whose annual receipts are less than $6,500,000. Last year, six of the 20 handlers subject to regulation had annual grape sales of at least $6,500,000. In addition, 10 of the 50 producers had annual sales of at least $750,000. Therefore, a majority of handlers and producers may be classified as small entities. This rule would revise § 925.160 of the order's rules and regulations to include the requirement that handlers file an annual grape acreage survey. This rule would impose minimal additional costs on handlers regulated under the order. The benefits of this proposed rule are not expected to be disproportionately greater or less for small handlers than for large entities. At the meeting, the committee discussed an alternative to this change, which would be to ask handlers to voluntarily report grape acreage. However, under voluntary reporting, it is possible that all handlers would not report the information, making it difficult for the committee to aggregate accurate information used in determining the committee's crop estimate, assessment rate, and budget of expenses. The committee agreed that this alternative would not be in the best interest of the committee and the industry, and unanimously recommended mandating the report. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements that are contained in this rule are currently approved by the Office of Management and Budget (OMB), under OMB No. 0581-0189, Generic OMB Fruit Crops. This rule would impose minimal additional reporting or recordkeeping requirements, deemed to be insignificant, on both small and large grape handlers. USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. As with other similar marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. Further, the committee's meeting on February 6, 2007, was widely publicized throughout the desert grape industry and all interested persons were encouraged to attend the meeting and participate in committee deliberations. Like all committee meetings, the February 6, 2007, meeting was a public meeting; and all entities, both large and small, were encouraged to express their views on this issue. All interested persons were invited to attend this meeting and encouraged to participate in the industry's deliberations. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. A 15-day comment period is provided to allow interested persons to respond to this proposal. Fifteen days is deemed appropriate because this rule would need to be in place as soon as possible since the shipping season begins April 20. All written comments timely received will be considered before a final determination is made on this matter. List of Subjects in 7 CFR Part 925 Grapes, Marketing agreements, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 925 is proposed to be amended as follows: PART 925—GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN CALIFORNIA 1. The authority citation for 7 CFR part 925 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. In § 925.160, the current paragraph is redesignated as paragraph (a), and a new paragraph
(b)is added to read as follows: § 925.160 Reports.
(a)* * *
(b)When requested by the California Desert Grape Administrative Committee (CDGAC), each shipper who ships grapes shall furnish to the committee at such time as the committee shall require, an annual grape acreage survey (CDGAC Form 7), which shall include, but is not limited to, the following: the applicable year in which the report is requested; the names of the shipper (handler) who will handle the grapes and the grower who produces them; the location of each vineyard; the variety or varieties grown in each vineyard; and the bearing, non-bearing, and total acres of each vineyard. Dated: April 11, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-7179 Filed 4-13-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM365 Special Conditions No. 25-07-02-SC] Special Conditions: Boeing Model 787-8 Airplane; Systems and Data Networks Security—Protection of Airplane Systems and Data Networks From Unauthorized External Access AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This notice proposes special conditions for the Boeing Model 787-8 airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. The architecture of the Boeing Model 787-8 systems and networks allows access to external systems and networks, including the public Internet. On-board wired and wireless devices may also have access to parts of the airplane's digital systems that provide flight critical functions. These new connectivity capabilities may result in security vulnerabilities to the airplane's critical systems. For these design features, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for protection and security of airplane systems and data networks against unauthorized access. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. Additional special conditions will be issued for other novel or unusual design features of the Boeing Model 787-8 airplanes. DATES: Comments must be received on or before May 31, 2007. ADDRESSES: Comments on this proposal may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM365, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked Docket No. NM365. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Will Struck, FAA, Airplane and Flight Crew Interface, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2764; facsimile
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this notice between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change the proposed special conditions based on comments we receive. If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Background On March 28, 2003, Boeing applied for an FAA type certificate for its new Boeing Model 787-8 passenger airplane. The Boeing Model 787-8 airplane will be an all-new, two-engine jet transport airplane with a two-aisle cabin. The maximum takeoff weight will be 476,000 pounds, with a maximum passenger count of 381 passengers. Type Certification Basis Under provisions of 14 CFR 21.17, Boeing must show that Boeing Model 787-8 airplanes (hereafter referred to as “the 787”) meet the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-117, except 25.809(a) and 25.812, which will remain at Amendment 25-115. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the 787 because of a novel or unusual design feature, special conditions are prescribed under provisions of 14 CFR 21.16. In addition to the applicable airworthiness regulations and special conditions, the 787 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of part 36. In addition, the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.” Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101. Novel or Unusual Design Features The digital systems architecture for the 787 consists of several connected networks. This proposed network architecture is used for a diverse set of functions, including the following. 1. Flight-safety-related control and navigation systems (Aircraft Control Domain). 2. Airline business and administrative support (Airline Information Services Domain). 3. Passenger entertainment, information, and Internet services (Passenger Information and Entertainment Services Domain). The proposed architecture of the 787 is different from that of existing production (and retrofitted) airplanes. It allows connection to and access from external sources (the public Internet) and airline operator networks to the previously isolated Aircraft Control Domain and Airline Information Services Domain. The Aircraft Control Domain and the Airline Information Services Domain perform functions required for the safe operation of the airplane. Capability is proposed for providing electronic transmission of field-loadable software applications and databases to the aircraft. These would subsequently be loaded into systems within the Aircraft Control Domain and Airline Information Services Domain. Also, it may be proposed that on-board wired and wireless devices have access to the Aircraft Control Domain and Airline Information Services Domain. These new connectivity capabilities and features of the proposed design may result in security vulnerabilities from intentional or unintentional corruption of data and systems critical to the safety and maintenance of the airplane. The existing regulations and guidance material did not anticipate this type of system architecture or Internet and wireless electronic access to aircraft systems that provide flight critical functions. Furthermore, 14 CFR regulations and current system safety assessment policy and techniques do not address potential security vulnerabilities that could be caused by unauthorized external access to aircraft data buses and servers. Therefore, a special condition is proposed to ensure the security, integrity and availability of the critical systems within the Aircraft Control Domain and Airline Information Services Domain by establishing requirements for: 1. Protection of Aircraft Control Domain and Airline Information Services Domain systems, hardware, software, and databases from unauthorized access. 2. Protection of field-loadable software
(FLS)applications and databases which are electronically transmitted from external sources to the on-aircraft networks and storage devices, and used within the Aircraft Control Domain and Airline Information Services Domain. Applicability As discussed above, these proposed special conditions are applicable to the 787. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these proposed special conditions would apply to that model as well under the provisions of § 21.101. Conclusion This action affects only certain novel or unusual design features of the 787. It is not a rule of general applicability, and it affects only the applicant that applied to the FAA for approval of these features on the airplane. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these Special Conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Proposed Special Conditions Accordingly, the Administrator of the Federal Aviation Administration
(FAA)proposes the following special conditions as part of the type certification basis for the Boeing Model 787-8 airplane. The applicant shall ensure system security protection for the Aircraft Control Domain and Airline Information Services Domain from unauthorized external access. The applicant shall also ensure that security threats are identified and risk mitigation strategies are implemented to minimize the likelihood of occurrence of each of the following conditions: 1. Reduction in airplane safety margins or airplane functional capabilities, including those possibly caused by maintenance activity; 2. An increase in flightcrew workload or conditions impairing flightcrew efficiency, and; 3. Distress or injury to airplane occupants. Issued in Renton, Washington, on April 5, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. 07-1838 Filed 4-13-07; 8:45 am]
Connectionstraces to 76
Traces to 76 documents
CFR
- Issue of type certificate: import products.§ 21.29
- May I address the unsafe condition in a way other than that set out in the airworthiness directive?§ 39.19
- General.§ 97.20
- Administrative wage garnishment.§ 285.11
- Offset of tax refund payments to collect past-due, legally enforceable nontax debt.§ 285.2
- Interest, penalties, and administrative costs.§ 901.9
- Barring delinquent debtors from obtaining Federal loans or loan insurance or guarantees.§ 285.13
- Collection in installments.§ 901.8
- Transfer of debts to Treasury for collection.§ 285.12
- Collection by administrative offset.§ 901.3
- Reporting debts.§ 901.4
- Scope and application.§ 902.1
- Scope and application.§ 903.1
- Suspension or revocation of eligibility for loans and loan guaranties, licenses, permits, or privileges.§ 901.6
- Temporary change to a drawbridge operating schedule.§ 117.35
- Long Island, New York Inland Waterway from East Rockaway Inlet to Shinnecock Canal.§ 117.799
- Delegation of rulemaking authority.§ 1.05-1
- Chelsea River.§ 117.593
- Atlantic Ocean off Wallops Island and Chincoteague Inlet, Va.; danger zone.§ 334.130
- Sector Virginia Marine Inspection Zone and Captain of the Port Zone.§ 3.25-10
- What size standards has SBA identified by North American Industry Classification System codes?§ 121.201
- Designation of applicable regulations.§ 21.17
- Special conditions.§ 21.16
register
U.S. Code
- Federal Aviation Administration§ 106
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- Tax imposed§ 1
- Advancements and deductions§ 5705
- Administrative offset§ 3716
- Rule making§ 553
- Definitions§ 601
- Definitions and application§ 3701
- Employee agreements; service after training§ 4108
- Conspiracy to defraud the Government with respect to claims§ 286
- Installment deduction for indebtedness to the United States§ 5514
- Judgment liens§ 3201
- Interest and penalty on claims§ 3717
- Collection and compromise§ 3711
- Authority to make credits or refunds§ 6402
- Claims for overpayment of pay and allowances, and of travel, transportation and relocation expenses and allowances§ 5584
- Claims for overpayment of pay and allowances and of travel and transportation allowances§ 2774
- Claims for overpayment of pay and allowances, and travel and transportation allowances§ 716
- Minting and issuing coins, medals, and numismatic items§ 5111
- Denominations, specifications, and design of coins§ 5112
- Mutilation, diminution, and falsification of coins§ 331
- Debasement of coins; alteration of official scales, or embezzlement of metals§ 332
- Imitating obligations or securities; advertisements§ 475
- Avoidance of duplicative or unnecessary analyses§ 605
- Establishment, functions, and activities§ 272
- Regulations for drawbridges§ 499
- Transferred§ 1226
- Transferred§ 191
- Institution of inter partes review§ 314
- Certificate of patentability, unpatentability, and claim cancellation§ 307
- Conduct of inter partes review§ 316
- Purposes§ 3501
- Powers and duties§ 2
- Application§ 111
- Issue of patent§ 151
- Time for prosecuting application§ 133
- Patent fees; patent and trademark search systems§ 41
- Initial regulatory flexibility analysis§ 603
- Rules and regulations for conduct of proceedings in Patent and Trademark Office§ 1123
- Rules and regulations; impact analyses of Medicare and Medicaid rules and regulations on small rural hospitals§ 1302
- Definitions§ 551
- Public money, property or records§ 641
- SHORT TITLE.§ 9701
- General authority§ 1131
- Methodology§ 1117
- Findings, purposes and policy§ 1801
63 references not yet in our index
- 14 CFR 39
- 1 CFR 51
- 14 CFR 97
- Pub. L. 104-134
- 111 U.S. 185
- 171 F.3d 1197
- 31 CFR 285
- 15 CFR 19
- 31 USC 3720D
- 5 CFR 550.1103
- 5 CFR 5514
- 31 USC 3729-3731
- 31 USC 3720B
- 31 CFR 901
- 31 CFR 902
- 31 CFR 903
- 31 USC 3720A
- 31 USC 3720A(b)
- 5 CFR 550.1108
- 5 CFR 550.1109
- 5 CFR 581
- 5 CFR 550.1102(b)(2)
- 31 CFR 904
- 5 CFR 550.1104(l)
- 5 CFR 550.1107(a)
- 31 CFR 82
- Pub. L. 109-145
- 438 U.S. 104
- 33 CFR 117
- 5 USC 601-612
- Pub. L. 104-121
- 44 USC 3501-3520
- 2 USC 1531-1538
- 42 USC 4321-4370f
- Pub. L. 102-587
- 106 Stat. 5039
- 33 CFR 165
- Pub. L. 107-295
- 46 USC 701
- Pub. L. 107-273
+ 23 more
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SCOTUS111 U.S. 185
F. App'x171 F.3d 1197
SCOTUS438 U.S. 104
Cites 139 · showing 12Cited by 0 across 0 sources