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Code · REGISTER · 2008-03-27 · PROPOSED RULES · Agency Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16308-16311 E8-6073 Agricultural Agricultural Marketing Servi · Unknown

Unknown. Affirmation of interim rule as final rule

32,716 words·~149 min read·/register/2008/03/27/08-1079

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

--- schema: federal-register doc_type: fedreg source_file: FR-2008-03-27.xml --- 73 60 Thursday, March 27, 2008 Contents Agency Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16308-16311 E8-6073 Agricultural Agricultural Marketing Service PROPOSED RULES Pork Promotion, Research and Consumer Information Program; Section 610 Review, 16218-16219 E8-6246 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Commodity Credit Corporation See Food and Nutrition Service See Food Safety and Inspection Service See Natural Resources Conservation Service Animal Animal and Plant Health Inspection Service RULES Addition of Armenia to the List of Regions Where African Swine Fever Exists, 16179 E8-6242 NOTICES Assessments of the Highly Pathogenic Avian Influenza Subtype H5N1 Status of Denmark and France;
Availability, 16245-16246 E8-6241 Civil Civil Rights Commission NOTICES Meetings; Sunshine Act, 16261 08-1081 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration See Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16261-16264 E8-6257 E8-6258 E8-6259 E8-6260 Commodity Commodity Credit Corporation NOTICES Conservation Security Program, 16246-16259 E8-6177 Commodity Commodity Futures Trading Commission NOTICES Meetings;
Sunshine Act, 16274 08-1080 Copyright Copyright Royalty Board, Library of Congress RULES Determination of Rates and Terms for Business Establishment Services, 16199-16203 E8-6174 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16274-16277 E8-6279 E8-6282 E8-6283 Defense Defense Department See Navy Department Education Education Department NOTICES Foreign Language Assistance Program;
Local Educational Agencies: Applications for New Awards for Fiscal Year 2008, 16277-16283 E8-6236 Election Election Assistance Commission NOTICES Election Data Collection Grant Program, 16283-16288 E8-6263 Employment Employment and Training Administration PROPOSED RULES Temporary Agricultural Employment of Aliens in the United States: Modernizing Labor Certification Process and Enforcement; Extension of Comment Period, 16243-16244 E8-6121 Employment Employment Standards Administration See Wage and Hour Division PROPOSED RULES Temporary Agricultural Employment of Aliens in the United States:
Modernizing Labor Certification Process and Enforcement; Extension of Comment Period, 16243-16244 E8-6121 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Defense Nuclear Facilities Safety Board Recommendation 2008-1, 16288 E8-6240 EPA Environmental Protection Agency RULES Approval and Promulgation of Air Quality Implementation Plans: Rhode Island; Diesel Anti-Idling Regulation, 16203-16205 E8-6183 Completeness Findings for Section 110(a) State Implementation Plans; 8-hour Ozone NAAQS, 16205-16211 E8-6176 National Ambient Air Quality Standards for Ozone, 16436-16514 E8-5645 PROPOSED RULES Approval and Promulgation of Air Quality Implementation Plans:
Rhode Island; Diesel Engine Anti-Idling Regulation, 16244 E8-6188 NOTICES 2008 National Clean Water Act Recognition Awards: Availability of Application and Nomination Information, 16299 E8-6281 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16299-16301 E8-6265 Clean Water Act Section 303(d); Availability of List Decision, 16301-16302 E8-6278 Meetings: National Advisory Council for Environmental Policy and Technology, 16302 E8-6267 National and Governmental Advisory Committees to the U.S.
Representative to the Commission for Environmental Cooperation, 16302 E8-6291 Export Export-Import Bank NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16303 E8-6225 FAA Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Bombardier Model CL 600 2B19 (Regional Jet Series 100 & 440) Airplanes, 16221-16224 E8-6299 Dornier Model 328 100 and 300 Airplanes, 16219-16221 E8-6296 FCC Federal Communications Commission NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16303-16304 E8-6030 E8-6032 Internet Protocol-Based Telecommunications Relay Service Users: Assignment of Ten-digit Telephone Numbering System Linked to North American Numbering Plan; Related Issues, 16304-16305 E8-6223 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Standards of Conduct for Transmission Providers, 16228-16243 E8-6261 NOTICES Application: Columbia Gulf Transmission Co. et al., 16295-16296 E8-6213 Application Accepted for Filing and Soliciting Motions to Intervene, Protests, and Comments:
FFP Detroit 1, LLC, 16289-16290 E8-6219 FFP Niagara Project 1, LLC, 16290-16291 E8-6218 Green River 5 Hydro, LLC, 16291-16292 E8-6217 Kentucky Hydro 10, LLC, 16292-16293 E8-6214 Kentucky Hydro 11, LLC, 16293-16294 E8-6215 Oliver Hydro, LLC, 16294-16295 E8-6216 Compiance Filing: Enbridge Pipelines (Louisiana Intrastate) LLC, 16296 E8-6212 Intent to Prepare an Environmental Assessment: Northern Natural Gas Co., 16296-16298 E8-6220 Request Under Blanket Authorization: Florida Gas Transmission Co., LLC, 16298-16299 E8-6221 Fish Fish and Wildlife Service NOTICES Receipt of Applications for Five Incidental Take Permits for the Construction of 24 Single-Family Homes etc., 16319-16321 E8-6234 Food Food and Drug Administration NOTICES Draft Guidance for Industry on Coronary Drug Eluting Stents Nonclinical and Clinical Studies;
Availability, 16311-16312 E8-6210 Identification of Drug and Biological Products Deemed to Have Risk Evaluation and Mitigation Strategies, 16313-16314 E8-6201 Meetings: Anesthetic and Life Support Drugs Advisory Committee and the Drug Safety and Risk Management Advisory Committee; Joint Meeting, 16314-16315 E8-6294 Obstetrics and Gynecology Devices Panel of the Medical Devices Advisory Committee, 16315-16316 E8-6290 Food Food and Nutrition Service PROPOSED RULES Child and Adult Care Food Program:
At-Risk Afterschool Meals in Eligible States, 16213-16218 E8-6235 Food Food Safety and Inspection Service NOTICES Meetings: Codex Alimentarius Commission, 16260-16261 E8-6243 GSA General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16305-16306 E8-6276 E8-6284 Meetings: Small Business Advisory Committee, 16307 E8-6274 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health NOTICES Revised National Disaster Medical System
(NDMS)Patient Treatment and Tracking Records System, 16307-16308 E8-6238 Health Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16316-16317 E8-6224 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See National Park Service International International Trade Administration NOTICES Partial Rescission of Antidumping Duty Administrative Review, etc.: Stainless Steel Sheet and Strip in Coils from Taiwan, 16264-16265 E8-6268 Labor Labor Department See Employment and Training Administration See Employment Standards Administration See Occupational Safety and Health Administration See Wage and Hour Division Land Land Management Bureau NOTICES Extension of Approved Information Collection, OMB APPROVAL NUMBER 1004-0103, 16321-16323 E8-6293 Public Land Order No. 7395; Revocation of Public Land Order Nos. 494, 565, 983, and 1011, Utah; Correction, 16323 E8-6289 Reinstatement of Terminated Oil and Gas Leases CACA 47607 and CACA 47608, 16323 E8-6233 Library Library of Congress See Copyright Royalty Board, Library of Congress Morris Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation NOTICES Meetings; Sunshine Act, 16325 E8-6109 NIH National Institutes of Health NOTICES Meetings: Center for Scientific Review, 16317 E8-6083 E8-6093 Clinical Center, 16317 E8-6095 National Cancer Institute, 16317-16318 E8-6080 E8-6094 National Institute of Allergy and Infectious Diseases, 16318-16319 E8-6086 E8-6089 National Institute of General Medical Sciences, 16318 E8-6085 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Pacific Cod by American Fisheries Act Catcher Processors Using Trawl Gear in the Bering Sea and Aleutian Islands Management Area, 16211 08-1079 Pacific Cod by Vessels in the Amendment 80 Limited Access Fishery in the Bering Sea and Aleutian Islands Management Area, 16211-16212 E8-6295 PROPOSED RULES National Marine Sanctuaries Regulations, 16224-16228 E8-6189 NOTICES Revision to the 2008 Dr. Nancy Foster Scholarship Program, 16265-16266 E8-6285 Taking of Marine Mammals Incidental to Specified Activities: Operation of an LNG Facility in Massachusetts Bay, 16266-16272 E8-6292 National Park National Park Service NOTICES Environmental statements; availability, etc.: Quarry Visitor Center; Dinosaur National Monument, Colorado and Utah, 16323 E8-6269 Meetings: Flight 93 National Memorial Advisory Commission, 16323-16324 E8-6277 NRCS Natural Resources Conservation Service NOTICES Conservation Security Program, 16246-16259 E8-6177 Navy Navy Department NOTICES Meetings: Chief of Naval Operations
(CNO)Executive Panel, 16277 E8-6228 Nuclear Nuclear Regulatory Commission NOTICES Environmental Assessment and Finding of No Significant Impact: Hampton, VA, 16325-16327 E8-6230 Facility Operating License Amendment, etc., Correction, 16327 E8-6237 Occupational Occupational Safety and Health Administration NOTICES Meetings: Federal Advisory Council on Occupational Safety and Health, 16324-16325 E8-6244 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16272-16274 E8-6297 Postal Postal Service NOTICES Decision of the Governors of the Postal Service: Change in Rates of General Applicability for Competitive Products, 16327-16392 E8-5925 SEC Securities and Exchange Commission RULES Proposed Rule Changes of Self-Regulatory Organizations, 16179-16198 E8-5998 NOTICES Filing: Nasdaq Stock Market LLC, 16393-16394 E8-6253 E8-6254 Self-Regulatory Organizations; Proposed Rule Changes: American Stock Exchange LLC, 16395-16401 E8-6249 E8-6250 E8-6251 National Stock Exchange, Inc., 16402-16403 E8-6248 The Depository Trust Co., 16403-16405 E8-6256 The Options Clearing Corp., 16405-16408 E8-6252 E8-6255 Social Social Security Administration NOTICES Privacy Act; Systems of Records, 16408-16418 E8-6232 State State Department NOTICES Bureau of Educational and Cultural Affairs (ECA); Request for Grant Proposals (RFGP), 16418-16434 E8-6280 E8-6286 Culturally Significant Objects Imported for Exhibition Determinations: Ernst Ludwig Kirchner; The Berlin Street Scenes, 16434 E8-6270 Giinaquq; Like A Face, 16434 E8-6273 Piet Mondrian in Pittsburgh, 16434 E8-6271 Transportation Transportation Department See Federal Aviation Administration Wage Wage and Hour Division PROPOSED RULES Temporary Agricultural Employment of Aliens in the United States: Modernizing Labor Certification Process and Enforcement; Extension of Comment Period, 16243-16244 E8-6121 Separate Parts In This Issue Part II Environmental Protection Agency, 16436-16514 E8-5645 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 60 Thursday, March 27, 2008 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Part 94 [Docket No. APHIS-2007-0142] Addition of Armenia to the List of Regions Where African Swine Fever Exists AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Affirmation of interim rule as final rule. SUMMARY: We are adopting as a final rule, without change, an interim rule that amended the regulations concerning the importation of animals and animal products by adding Armenia to the list of regions where African swine fever exists. We took that action because outbreaks of African swine fever had been confirmed in various locations in the northern portion of Armenia. The interim rule was necessary to prevent the introduction of African swine fever into the United States. DATES: Effective on March 27, 2008, we are adopting as a final rule the interim rule published at 73 FR 1043-1044 on January 7, 2008. FOR FURTHER INFORMATION CONTACT: Mr. Javier Vargas, Animal Scientist, Regionalization Evaluation Services Staff, National Center for Import and Export, VS, APHIS, 4700 River Road, Unit 38, Riverdale, MD 20737-1231;
(301)734-0756. SUPPLEMENTARY INFORMATION: Background The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of specified animals and animal products to prevent the introduction into the United States of various animal diseases, including rinderpest, foot-and-mouth disease, bovine spongiform encephalopathy, swine vesicular disease, classical swine fever, and African swine fever (ASF). These are dangerous and destructive diseases of ruminants and swine. Section 94.8 of the regulations lists regions of the world where ASF exists or is reasonably believed to exist and imposes restrictions on the importation of pork and pork products into the United States from those regions. In an interim rule 1 effective and published in the **Federal Register** on January 7, 2008 (73 FR 1043-1044, Docket No. APHIS-2007-0142), we amended the regulations by adding Armenia to the list in § 94.8 of regions where ASF exists or is reasonably believed to exist. As a result of that action, the importation into the United States of pork and pork products from Armenia is restricted. 1 To view the interim rule, go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0142* . Comments on the interim rule were required to be received on or before March 7, 2008. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule without change. This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Order 12988, and the Paperwork Reduction Act. Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866. List of Subjects in 9 CFR Part 94 Animal diseases, Imports, Livestock, Meat and meat products, Milk, Poultry and poultry products, Reporting and recordkeeping requirements. PART 94—RINDERPEST, FOOT-AND-MOUTH DISEASE, FOWL PEST (FOWL PLAGUE), EXOTIC NEWCASTLE DISEASE, AFRICAN SWINE FEVER, CLASSICAL SWINE FEVER, AND BOVINE SPONGIFORM ENCEPHALOPATHY: PROHIBITED AND RESTRICTED IMPORTATIONS Accordingly, we are adopting as a final rule, without change, the interim rule that amended 9 CFR part 94 and that was published at 73 FR 1043-1044 on January 7, 2008. Done in Washington, DC, this 21st day of March 2008. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-6242 Filed 3-26-08; 8:45 am] BILLING CODE 3410-34-P SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 240 and 249 [Release No. 34-57526; File No. S7-06-07] RIN 3235-AJ80 Proposed Rule Changes of Self-Regulatory Organizations AGENCY: Securities and Exchange Commission. ACTION: Final rule. SUMMARY: The Securities and Exchange Commission (“Commission”) is adopting rule amendments to require Self-Regulatory Organizations (“SROs”) that submit proposed rule changes pursuant to Section 19(b)(7)(A) of the Securities Exchange Act of 1934 (“Act”) to file these rule changes electronically. In addition, the Commission is adopting rule amendments to require SROs to post all such proposed rule changes on their Web sites. Together, the amendments are designed to expand the electronic filing by SROs of proposed rule changes, making it more efficient and cost effective, and to harmonize the process of filings made under Section 19(b)(7)(A) with that for filings made by SROs under Section 19(b)(1) of the Act. DATES: Effective Date: April 28, 2008. FOR FURTHER INFORMATION CONTACT: John Roeser, Assistant Director, at
(202)551-5630, Michou Nguyen, Special Counsel, at
(202)551-5634, or Sherry Moore, Paralegal, at
(202)551-5549, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-6628. SUPPLEMENTARY INFORMATION: I. Introduction On February 23, 2007, the Commission proposed to require SROs that submit proposed rule changes pursuant to Section 19(b)(7)(A) of the Act 1 to file these rule changes electronically. 2 The Commission proposed amending Rule 19b-7 and Form 19b-7 to:
(1)Require SROs to file proposed rule changes submitted pursuant to Section 19(b)(7)(A) of the Act electronically, rather than in paper format; and
(2)require SROs to post all such proposed rule changes on their Web sites. The Commission also proposed making certain conforming changes to Rule 19b-4 and Form 19b-4. 1 15 U.S.C. 78s(b)(7)(A). 2 Securities Exchange Act Release No. 55341 (February 23, 2007), 72 FR 9412 (March 1, 2007) (“Electronic 19b-7 Proposing Release”). Under Section 19(b)(7) of the Act and Rule 19b-7 thereunder, securities futures exchanges registered with the Commission under Section 6(g) of the Act and associations registered with the Commission under Section 15A(k) of the Act 3 for the limited purpose of regulating activities of members who are registered as broker-dealers in security futures products 4 are required to file certain categories of proposed rule changes with the Commission. 5 These proposed rule changes are published for comment and may take effect:
(1)When a written certification has been filed with the Commodity Futures Trading Commission (“CFTC”) under Section 5c(c) of the Commodity Exchange Act;
(2)when the CFTC determines that review of the proposed rule change is not necessary; or
(3)when the CFTC approves the proposed rule change. 6 Rule 19b-7 and Form 19b-7 under the Act set forth the process for SROs to file proposed rule changes under Section 19(b)(7) of the Act. 3 15 U.S.C. 78 *o* -1(k). 4 *See* Section 15(b)(11) of the Act. 15 U.S.C. 78 *o* (b)(11). 5 Section 19(b)(7) of the Act. 15 U.S.C. 78s(b)(7). Specifically, under Section 19(b)(7), these SROs submit those proposed rule changes that relate to higher margin levels, fraud or manipulation, recordkeeping, reporting, listing standards, or decimal pricing for security futures products, sales practices for security futures products for persons who effect transactions in security futures products, or rules effectuating the SRO's obligation to enforce the securities laws. 6 Section 19(b)(7)(B) of the Act. 15 U.S.C. 78s(b)(7)(B). Proposed rule changes that relate to margin, except for those that result in higher margin levels, must be filed pursuant to Sections 19(b)(1) of the Act. 15 U.S.C. 78s(b)(1). Currently, SROs are required to electronically file proposed rule changes submitted to the Commission under Section 19(b)(1) of the Act. 7 SROs are also required to post such proposed rule changes on their Web sites. 8 7 17 CFR 240.19b-4. *See* Securities Exchange Act Release No. 50486 (October 4, 2004), 69 FR 60287 (October 8, 2004) (File No. S7-18-04) (“Electronic 19b-4 Adopting Release”). 8 17 CFR 240.19b-4( *l* ). Proposed rule changes submitted by SROs under Section 19(b)(7) of the Act, in contrast, are submitted to the Commission in paper. 9 In addition, SROs are not currently required to post proposed rule changes filed under Section 19(b)(7) on their Web sites. The Commission proposed to amend Rule 19b-7 and Form 19b-7 to require electronic filing and Web posting of proposed rule changes filed under Section 19(b)(7) of the Act. These proposals were designed to conform to the requirements already in place for proposed rule changes filed pursuant to Rule 19b-4 and Form 19b-4. 9 *See* Securities Exchange Act Release No. 44692 (August 13, 2001), 66 FR 43721 (August 20, 2001) (Paper Form 19b-7 Adopting Release). The Commission received two comment letters in response to its request for comments. 10 The commenters were generally supportive of the proposed amendments but offered a few suggestions for refinements to the proposal. In addition, commenters commended the Commission's efforts to improve the rule filing process and make it less costly and more efficient. One commenter also offered suggestions relating to matters outside the scope of this rulemaking. 11 The Commission has determined to adopt the amendments substantially as proposed, with modifications to address the comments of the NFA and with some clarifications. 10 *See* letters to Nancy M. Morris, Secretary, Commission, from: Thomas W. Sexton, Vice President and General Counsel, National Futures Association (“NFA”), dated April 23, 2007 (“NFA Letter”) and James J. Angel, PhD, CFA, Associate Professor of Finance, McDonough School of Business, Georgetown University, dated April 30, 2007 (“Angel Letter”). 11 *See* Angel Letter, *supra* note 10 at 1-2. II. Amendments A. Electronic Filing The Commission proposed to amend Rule 19b-7 and Form 19b-7 to require that Form 19b-7, and any amendments thereto, be submitted electronically to the Commission. The Commission is adopting these amendments as proposed. Based on the Commission's experience receiving electronic Rule 19b-4 filings from SROs, the Commission believes that requiring SROs to file proposed rule changes on Form 19b-7 electronically will have many benefits. First, the Commission believes electronic filing will reduce the amount of time required by SROs to submit SRO rule filings by eliminating paper delivery, photocopying, and distribution. Under the current system, SROs send paper copies of proposed rule changes on Form 19b-7 to the Commission via messenger, overnight delivery, or U.S. mail. Electronic filing will reduce costs for the SROs 12 because the SROs will no longer incur costs for delivery of paper filings or for the SRO staff time currently devoted to preparing filing packages. The Commission also will benefit from reducing the personnel time currently associated with manually processing paper filings. 12 *See infra* notes 65-69 and accompanying text. Second, electronic filing will allow for a more efficient use of Commission resources by integrating the SRO electronic filing technology with SRO Rule Tracking System (“SRTS”), the internal Commission database that tracks these filings, enabling Commission staff to more easily monitor and process proposed rule changes. Pertinent information regarding proposed rule changes, as well as amendments, will be captured automatically by SRTS. As a result, Commission staff will be able to monitor electronically the progress of proposed rule changes filed on Form 19b-7 from initial receipt through final disposition and thereby enhance its management of the rule filing process. As of 5:30 p.m. Eastern Daylight Saving Time on April 25, 2008, the Commission will no longer accept SRO proposed rule changes in paper format. Beginning at 9 a.m. Eastern Daylight Saving Time on April 28, 2008, SROs will be required to file all Forms 19b-7 and any amendments to Forms 19b-7 electronically, according to the procedures and in the format described in Rule 19b-7 and Form 19b-7, as amended. SROs will gain access to a secure Web site known as the EFFS, which enables authorized individuals at the SRO to file proposed rule changes with the Commission electronically. 13 Proposed rule changes will be deemed filed on the business day the Commission receives the proposed rule change electronically, provided the Commission receives the filing before 5:30 p.m. Eastern Standard Time or Eastern Daylight Saving Time, whichever is in effect at the time of filing, and it is filed in accordance with Rule 19b-7 and Form 19b-7, as amended. The Commission has eliminated the requirement that SROs submit multiple, paper copies of proposed rule changes. 14 13 The SRO will determine which individuals would be supplied with User IDs and passwords to access the secure Web site. *See infra* note 17 and accompanying text. 14 Occasionally, an SRO may find it necessary to file documents that cannot be submitted electronically, such as comment letters submitted to the Exchange before filing, or other exhibits. In addition, it may not be appropriate to require proprietary and other information subject to a request for confidential treatment to be filed electronically. Accordingly, the amendments to Rule 19b-7 and Form 19b-7 will retain the flexibility to permit portions of a rule filing to be made in paper form under limited circumstances. For example, the Commission will permit SROs to file materials for which confidential treatment is requested in paper format. As had been proposed, the adopted amendment to Form 19b-7 requires SROs to file their proposed rule changes with an electronic signature. 15 Form 19b-7 requires that a filing be signed on the SRO's behalf by a person “duly authorized” to sign a proposed rule change. 16 Each duly authorized signatory will be required to obtain a “digital ID,” which provides both the Commission and the SRO with assurances of the authenticity and integrity of the electronically-submitted Form 19b-7. 17 In addition, each signatory will be required to manually sign a hard copy of the Form 19b-7, authenticating, acknowledging, or otherwise adopting his or her electronic signature that is attached to or logically associated with the filing. In accordance with Rule 17a-1 under the Act, 18 the SRO is required to retain that manual signature page of the rule filing, authenticating the signatory's electronic signature, for not less than five years after the Form 19b-7 is filed with the Commission and, upon request, furnish a copy of it to the Commission or its staff. 19 15 The Commission notes that the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, *et seq.* does not apply in this regard. 16 The Commission is clarifying on amended Form 19b-7 that this individual must be an officer of the SRO, who has been authorized by the SRO's governing body to sign proposed rule changes on behalf of the SRO. *See* Instruction E to Form 19b-7. 17 A digital ID, sometimes called a “digital certificate,” is a file on the computer that identifies the user. Computers can use a digital ID to create a digital signature that verifies both that the message originated from a specific person and that the message has not been altered either intentionally or accidentally. The user obtains a digital ID from a “Certificate Authority” (“CA”) for a modest sum (currently approximately $20 per year). When the SRO electronically sends the Form 19b-7 to the Commission, the digital ID will encrypt the data through a system that uses “key pairs.” With key pairs, the SRO's software application uses one key to encrypt the document. When the Commission receives the SRO's electronic document, the Commission's software will use a matching key to decrypt the document. 18 17 CFR 240.17a-1. 19 *See* Rule 19b-7(d). These requirements are substantially consistent with the requirements for Form 19b-4 filings, which were adapted from Section 232.302 of Regulation S-T, 17 CFR 232.302 for EDGAR filers. One commenter suggested that the Commission use its exemptive authority to eliminate the requirement that SROs file proposed rule changes with the Commission pursuant to Section 19(b)(7) of the Act. 20 The Commission believes that this comment is outside the scope of the proposed amendments and therefore is not making any changes to the proposal in this regard. 20 *See* Angel Letter, *supra* note 10 at 1. B. Posting of Rule 19b-7 Proposed Rule Changes on SRO Web Sites The Commission also proposed to amend Rule 19b-7 to require each SRO to post proposed rule changes filed pursuant to that Rule, and any amendments thereto, on its public Web site no later than two business days after filing with the Commission. The Commission also proposed to require SROs to continue to post such proposed rule changes until 60 days after the SRO files a written certification with the CFTC, the CFTC determines that review of the proposed rule change is not necessary, or the CFTC approves the proposed rule change. The Commission is adopting these amendments as proposed. The Commission believes the Web site posting requirement provides interested persons with easy access to proposed rule changes, while at the same time providing SROs with sufficient time to comply with the posting requirement. 21 Based on the Commission's experience with respect to SROs' obligation to post proposed rule changes under Rule 19b-4, the Commission believes that the two business day timeframe strikes an appropriate balance between promoting the public interest of having proposed rule changes posted quickly and the need for the SROs to have adequate time to perform the technological tasks necessary to post the proposed rule change. 22 The Commission believes all market participants, investors, and other interested parties should have access to SRO proposed rule changes filed with the Commission, and any amendments, as soon as practicable. Moreover, the Commission believes that Web site accessibility of SRO proposed rule changes filed under Section 19(b)(7) of the Act will:
(1)Provide interested persons with faster access to proposed rule changes;
(2)facilitate the ability of interested persons to comment on the proposals;
(3)save SRO resources currently used to monitor the Commission's Public Reference Room for competitors' proposed rule changes; and
(4)enhance the transparency of the rule filing process by providing ready access to proposed rule changes and facilitating public comment on them. 21 The complete proposed rule change will also be available electronically in the Commission's Public Reference Room. 22 An SRO controls the timing of filing proposed rule changes and amendments and can assure that its technology staff is prepared to post the proposed rule change on the SRO's public Web site within two business days of filing with the Commission. The Commission is also adopting as proposed amendments requiring SROs to remove proposed rule changes filed under Section 19(b)(7) of the Act that are deemed not properly filed and returned to SROs or withdrawn by SROs from their Web sites within two business days from the Commission's notification to the SRO that such proposed rule change was not properly filed, 23 or of the SRO's withdrawal of the proposed rule change. 23 A screen within EFFS will indicate that a rule filing has not been properly filed and has been returned to the SRO. The NFA requested clarification on whether it could keep proposed rule changes on its Web site for longer than the 60-day period provided in the proposed rule, and whether it could maintain on its Web site the letter submitted to the CFTC in connection with a proposed rule change that it withdraws from filing with the Commission or is notified was not properly filed. NFA also noted that leaving the letter submitted to the CFTC on the NFA Web site may provide useful historical information regarding NFA rule changes or other matters. 24 In this regard, the Commission notes that the amended rule only establishes minimum periods for which an SRO must post its proposed rule changes. An SRO may maintain a Form 19b-7 filing on its Web site after the 60-day period has ended. In addition, Rule 19b-7 does not apply to any filing other than those made under Section 19(b)(7)(A). Thus, an SRO may post on its Web site submissions to the CFTC or other materials, as it chooses. 24 *See* NFA Letter, *supra* note 10 at 2. Finally, Dr. Angel, suggested that all SROs be required to describe the status of rule filings ( *e.g.* , “effective,” “under review at the Commission,” “rejected,” “superseded by a new proposal,” etc.) on their Web sites. 25 In addition, Dr. Angel suggested that the Commission require SROs to post all filings submitted to the Commission, including Form 1 and Form PILOT, and that the Commission require alternative trading systems to post their Forms ATS on their respective Web sites. 26 The Commission believes these suggestions are outside the scope of the proposed amendments, which relate exclusively to electronic filing by securities futures exchanges under Section 19(b)(7) of the Act, and therefore is not modifying the proposal in response to these comments. 27 25 *See* Angel Letter, *supra* note 10 at 1. 26 *See* Angel Letter, *supra* note 10 at 2. 27 The Commission notes that it proposed to require SROs to post amendments to their Form 1s on their Web sites. *See* Securities Release Act No. 50699 (November 18, 2004), 69 FR 71126 (December 8, 2004). The Commission has not taken action on this proposal. C. Requirement To Update Rule Text on SRO Web Sites Currently, Rule 19b-4(m) under the Act 28 requires all SROs to post and maintain on their Web sites a complete and accurate copy of their rules. In addition, an SRO must update its Web site to reflect rule changes within two business days after being notified of the Commission's approval of a proposed rule change filed pursuant to Section 19(b)(2) of the Act or of the Commission's notice of a proposed rule change filed pursuant to 19(b)(3)(A) or 19(b)(7) of the Act. As adopted, all SROs will continue to be required to post and maintain a complete and accurate copy of their rules and to update their Web sites to reflect their proposed rule changes. 28 17 CFR 240.19b-4(m). 1. New Paragraph
(g)of Rule 19b-7 The Commission proposed to add paragraph
(g)to Rule 19b-7 to move the requirement that an SRO filing a proposed rule change under Section 19(b)(7):
(1)Post and maintain a current and complete version of its rules on its Web site; and
(2)update the rules posted on its Web site within two days after a rule change becomes effective. 29 The Commission is adopting new paragraph
(g)to Rule 19b-7 as proposed, with certain minor changes to reflect comments from the NFA. 30 29 Section 19(b)(7)(B) of the Act requires a proposed rule change filed with the Commission under Section 19(b)(7) of the Act to be filed concurrently with the CFTC. Such proposed rule change is effective upon filing of a written certification with the CFTC, upon a determination by the CFTC that review of the proposed rule change is not necessary, or upon approval of the proposed rule change by the CFTC. 15 U.S.C. 78s(b)(7)(B). 30 Dr. Angel suggested that the Commission require SROs to post their rulebooks on their Web site in one Adobe pdf file for ease of searching. See Angel Letter, *supra* note 10 at 1. While the Commission encourages the SROs to employ technology on their Web sites which facilitates research of their rules, the Commission does not believe it is necessary or appropriate to require SROs to use a particular application to publish their rules. The NFA asked the Commission to modify the proposed language in Rule 19b-7(g) so that an SRO's obligation to update its rules on its Web site would apply no sooner than two days after the SRO's *receipt* of notice from the CFTC that it had determined that review of the proposal was not necessary or that it had approved the proposal. 31 The NFA states that the CFTC does not have an electronic filing system and, therefore, the NFA does not always receive immediate notification of CFTC action. 31 *See* NFA Letter, *supra* note 10 at 2-3. In response to the NFA's comment, the Commission is amending Rule 19b-7(g) to require an SRO to update its Web site to reflect rule changes filed under Section 19(b)(7) within two business days of the later of:
(1)The Commission's notice of the proposed rule change; or
(2)the filing by the SRO of a certification with the CFTC under Section 5c(c) of the Commodities Exchange Act, receipt of notice from the CFTC that it has determined that review of such proposed rule change is not necessary, or receipt of notice from the CFTC that it has approved such proposed rule change. The Commission believes these changes are appropriate because they do not impose an obligation on an SRO to update its Web site until the SRO has notice of the CFTC action and no sooner than SROs are obligated to update their rule text for proposals submitted pursuant to Section 19(b)(3)(A) of the Act, which are effective upon filing with the Commission. 2. Amendments to Paragraph
(m)of Rule 19b-4 The Commission also proposed to make a conforming change to Rule 19b-4 to remove the requirement in paragraph
(m)that SROs update their Web sites to reflect proposed rule changes filed pursuant to Section 19(b)(7) of the Act. As discussed above, the Commission has moved this requirement to Rule 19b-7. The Commission is adopting the conforming changes to Rule 19b-4 as proposed. 32 32 *See* Rule 19b-4(m)(2). The final rule also clarifies that the two-day time period is *business* days. In addition, in response to comments from the NFA, the Commission is modifying Rule 19b-4(m) as it applies to an exchange registered with the Commission under Section 6(g) or a limited purpose national securities association registered under Section 15A(k) with regard to the period within which it must update its rule text on its Web site. An Exchange registered with the Commission under Section 6(g) of the Act 33 or a limited purpose national securities association registered under Section 15A(k) of the Act, 34 may be required to file certain proposed rule changes under Section 19(b)(2) of the Act. Such proposed rule changes do not become effective until:
(1)The Commission approved the proposal; and
(2)the SRO filed with the CFTC a written certification, the CFTC determined that review of the proposed rule change is not necessary, or the CFTC approved the proposed rule change. Accordingly, the final rule the Commission is adopting provides that an exchange that is registered with the Commission under Section 6(g) of the Act or a limited purpose national securities association registered under Section 15A(k) of the Act, is required to update its rule text on its Web site to reflect rule changes filed under Section 19(b)(2) of the Act within two business days of the later of:
(1)The Commission's approval of the proposed rule change; or
(2)the SRO's filing of a written certification with the CFTC under Section 5c(c) of the Commodity Exchange Act, notice from the CFTC that it has determined that review of the proposed rule change is not necessary, or notice from the CFTC that it has approved the proposed rule change. 35 33 15 U.S.C. 78f(g). 34 15 U.S.C. 78 *o* -1(k). 35 *See* Rule 19b-4(m)(3). The Commission believes these modifications to the proposal are appropriate because they reflect the practical effect of the fact that exchanges registered under Section 6(g) of the Act and national securities association registered under Section 15A(k) of the Act are also regulated by the CFTC. Under this dual regulatory scheme, proposed rule changes must become effective under both the Act and the CEA. The final rule makes clear that such an SRO's obligation to update its Web site to reflect rule changes arises only after such rule changes have become effective under both the Act and the CEA. D. Form 19b-7 Amendments 1. Form 19b-7 Amendments The Commission proposed to amend the instructions to Form 19b-7 to eliminate the requirement to submit nine paper copies and instead to require electronic filing of Form 19b-7. The Commission is adopting this amendment as proposed. To access the secure Internet site for Web-based filing of the Form 19b-7, an SRO will submit to the Commission an External Application User Authentication Form (“EAUF”) to register each individual at the SRO who will be submitting Forms 19b-7 on behalf of the SRO. Upon receipt and verification of the information in the EAUF process, the Commission will issue each such person a User ID and Password to permit access to the Commission's secure Web site. As Form 19b-7 will be electronic, initially the authorized user at an SRO will access a screen containing a filing template, referenced as Page 1, in which it can identify the SRO, enter a brief description of the proposed rule change, and enter a brief description of the SRO governing body action approval. 36 The SRO will provide contact information and place the electronic signature of a duly authorized officer on this Page 1 initial screen. 37 The second screen of the electronic Form 19b-7 will provide the SRO with a means to attach the proposed rule change and related exhibits in Microsoft Word format. 38 EAUF users will have electronic access to a mechanism to fulfill the requirements of the Form, as adapted for electronic filing. 39 Finally, the SRO will use the electronic Form 19b-7 to amend or withdraw a rule filing pending with the Commission. 36 The authorized user also will be able to indicate if there will be a separate filing of any hard copy exhibits that are unable to be submitted electronically. 37 As noted *supra* notes 15-17, and accompanying text, a person that is a “duly authorized officer” at the SRO will be required to place his or her “electronic signature” on the Form 19b-7 before it is transmitted electronically to the Commission. 38 An SRO may also submit Exhibits 2, 3, and 5 in another acceptable electronic format, including Microsoft Excel, Microsoft PowerPoint, Adobe Acrobat, or Corel WordPerfect, if Microsoft Word is not available to the SRO or the document is not compatible with Microsoft Word. 39 For example, the SRO will click separate boxes on the second screen to attach documents containing the various exhibits; notices, written comments, transcripts, other communications; form, report, or questionnaire; proposed rule text; CFTC certification; the completed notice of the proposed rule change for publication in the **Federal Register** ; and, marked copies of amendments if applicable. The Commission also proposed a number of changes to Form 19b-7, unrelated to electronic filing, that are modeled after certain provisions in Form 19b-4, which the Commission believed would facilitate an SRO's proper filing of Form 19b-7. The Commission is adopting the changes to Form 19b-7 substantially as proposed. For example, the format of the Instructions to Form 19b-7 will be organized according to the sections currently used for Form 19b-4 Instructions, instead of the combination of questions and titles that serve as subject heads in the existing Instructions to Form 19b-7 currently. The amended Form 19b-7 will require the SRO to describe the purpose of the proposed rule change in sufficient detail to enable the public to provide meaningful public comment. 40 The Form 19b-7 will direct the SRO to relevant sections of the Act that are appropriate for discussion in the Statutory Basis section of the Form 19b-7 and will clarify that a mere assertion that the proposed rule change is consistent with the Act is not sufficient to describe why the proposed rule change is consistent with the Act. The amended Form 19b-7 will also provide updated instructions related to the solicitation of comments from interested persons regarding the proposed rule change. These updated instructions will include the new address where interested parties may direct comments to Form 19b-7 filings in hard copy and describe the manner in which comments may be submitted on the Commission Web site. 40 *See also* General Instructions for Form 19b-4, which establish a similar requirement for Form 19b-4. The changes to Form 19b-7 will alter the way that the Exhibits are organized and the Instructions to such Exhibits are presented. For example, the amended Instructions will direct an SRO to include the completed notice of the proposed rule change (“Form 19b-7 Notice” or “Notice”) as Exhibit 1, whereas such notice is not assigned to an Exhibit in the existing Form 19b-7. The instructions for the Form 19b-7 Notice will be amended to include more detailed guidance on the current requirement that the Notice must be formatted to comply with the requirements for **Federal Register** publication. For example, the amended Instructions will provide guidance regarding **Federal Register** requirements relating to margin spacing, page numbering, and line spacing. The subject of existing Exhibit 1, relating to communications with third parties on the subject of the proposed rule change, will move to Exhibit 2. The guidance in the existing Instructions to Exhibit 2 will be replaced, in Exhibit 3, with more detailed guidance as to how the SRO should present forms, reports, and questionnaires that the SRO proposes to use to implement the terms of the proposed rule change. The requirement to include the text of the proposed rule change will remain in Exhibit 4, but the requirement for the SRO to describe the anticipated effect of the proposed rule change would have on the application of other rules of the SRO will move to Section II(A)(1)(b) of the Form 19b-7 Notice. The Commission is adopting as proposed, a requirement that an SRO submitting a Form 19b-7 attach, in Exhibit 5, a document reflecting the certificate of effectiveness of a proposed rule change, an SRO's request or the CFTC's determination that review of the proposed rule change is not necessary, or an SRO's request for CFTC approval or an indication from the CFTC that the proposed rule change has been approved. Page 1 of Form 19b-7 will provide a space for SROs to indicate which of these actions, noted in the preceding sentence, has been taken by the SRO or the CFTC. After further consideration of the issue, the Commission is modifying Page 1 to provide greater specificity as to the status of the effectiveness of the proposed rule change. Accordingly, Page 1 will have separate boxes for the SRO to mark indicating whether it is attaching a copy of its request that the CFTC determine that review of the proposed rule change is not necessary or a copy of the CFTC's determination that review of the proposed rule change is not necessary. Similarly, an SRO will be able to mark separate boxes indicating whether the SRO is attaching a document reflecting the SRO's request that the CFTC approve the proposed rule change or to indicate that the SRO is attaching the CFTC's approval of the proposed rule change. Page 1 will also indicate that the SRO may submit more than one document in Exhibit 5. As amended, the Instructions to Form 19b-7 describe circumstances under which an SRO must file an amendment to a proposed rule change and the procedures an SRO must follow when submitting an amendment electronically. The Instructions for Form 19b-7 state, in relevant part, that if “any information on this form or exhibit thereto is or becomes inaccurate before the proposed rule change becomes effective, the [SRO] shall file amendments correcting any such inaccuracy.” This instruction, for example, will require an SRO to file an amended Exhibit 5 when the SRO receives notice from the CFTC that review of the proposed rule change is not necessary or that the CFTC has approved the proposed rule change, if the SRO receives such notice following the submission of the original proposed rule change. The Commission believes that the changes to Form 19b-7, which are designed generally to conform to the updated Form 19b-4, will promote uniformity among SRO proposed rule change filings. This uniformity should facilitate SROs' compliance with the rule filing requirements under section 19(b) and the Commission's review of proposed rule changes. The changes are also expected to facilitate a speedy migration to electronic filing for SROs submitting proposed rule changes under section 19(b)(7). As noted above, the Commission recognizes that in rare circumstances SROs may be unable to file certain documents electronically with the Commission. Therefore, under these limited circumstances, the Commission would consider whether to allow SROs to file documents in paper format within five days of the electronic filing of all other required documents. 41 In the Electronic 19b-7 Proposing Release, the Commission solicited comment on whether there would be a need for an exception to the electronic filing requirement of Exhibit 5 to Form 19b-7. In response, the NFA suggested that while an explicit exception from the electronic filing requirement of Exhibit 5 was not necessary, the Commission should reserve the general exemptive authority to allow paper filings for all or part of a rule filing in unusual situations. 42 The Commission believes that the proposed rule changes filed pursuant to Section 19(b)(7) of the Act are usually not so time-sensitive that failure to file them with the Commission on a particular date will result in negative consequences to SROs, their members, or investors. In the rare situation where an SRO can demonstrate to the Commission that its inability to file a proposed rule change electronically on that particular date will cause harm to the SRO, its members, or investors, the Commission would consider appropriate relief. In such emergency situations, the Commission could consider an SRO's exemption request from the electronic rule filing requirements of Section 19(b) of the Act pursuant to Rule 0-12 of the Act 43 and Section 36(a)(1) of the Act 44 “to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors.” In making such findings, the Commission generally would consider important the existence of factors such as:
(1)An extended electronic outage at the SRO facility or at the Commission;
(2)a pressing need for implementation of the proposed rule change; and
(3)a failure of back-up facilities. The Commission notes that SROs, in their business continuity planning, should ensure that they have appropriate back-up facilities to accommodate electronic filing of proposed rule changes. Accordingly, the Commission is adopting the rule as originally proposed, without a specific exception to permit SROs to file Exhibit 5 on paper. 41 This exception from electronic filing would not apply to Page 1 to Form 19b-7 or Exhibits 1 and 4 thereto but would only be applicable to Exhibits 2 and 3, and any documents filed pursuant to a request for confidential treatment pursuant to the Freedom of Information Act, 5 U.S.C. 552. 42 *See* NFA Letter at 2. 43 17 CFR 240.0-12. 44 15 U.S.C. 78mm(a)(1). 2. Accurate, Consistent, and Complete Forms 19b-7 The Commission firmly believes that, to provide the public with a meaningful opportunity to comment, a proposed rule change must be accurate, consistent, and complete. Form 19b-7 states that the form, including the exhibits, is intended to elicit information necessary for the public to provide meaningful comment on the proposed rule change and for the Commission to determine whether abrogation of the proposal is appropriate because it unduly burdens competition or efficiency, conflicts with the securities laws, or is inconsistent with the public interest and protection of investors. 45 The SRO must provide all the information called for by the form, including the exhibits, and must present the information in a clear and comprehensible manner. 45 Section 19(b)(7)(C) of the Act grants to the Commission, after consultation with the CFTC, the authority to summarily abrogate a proposed rule change that has taken effect pursuant to Section 19(b)(7)(B) of the Act if it appears to the Commission that such a rule change unduly burdens competition or efficiency, conflicts with the securities laws, or is inconsistent with the public interest and the protection of investors. Currently, Commission staff devotes significant time to processing proposed rule changes, reviewing them for accuracy and completeness, and preparing them for publication. SRO staff must ensure that the filings:
(1)Contain a properly completed Form 19b-7;
(2)contain a clear and accurate statement of the authority for, and basis and purpose of, such rule change, including the impact on competition;
(3)contain a summary of any written comments received by the SRO;
(4)contain the proper certification submitted to the CFTC, any other appropriate determination made by the CFTC that a review of the proposed rule change is not necessary, or an indication that the CFTC has approved the proposed rule change; and
(5)describe the impact of the proposed rule change on the existing rules of the SRO, including any other rules proposed to be amended. As described in the current Form 19b-7, filings that do not comply with the foregoing are deemed not filed and returned to the SRO. Under these amendments the Commission is adopting, electronically filed proposed rule changes that do not comply with the foregoing will continue to be returned to the SRO, but in electronic format, and, consistent with current practice, will be deemed not filed with the Commission until all required information has been provided. E. Amendments to Form 19b-4 The Commission proposed to clarify on Form 19b-4 that an individual who signs the Form 19b-4 digitally must be an officer authorized by the SRO's governing body to sign proposed rule changes on behalf of the SRO. Accordingly, the Commission proposed to amend Page 1 of Form 19b-4 to add the word “officer” to follow the phrase “duly authorized” in the Signature Box appearing on that page. 46 The Commission notes that this change does not create any new obligation. Section F of the Instructions to Form 19b-4 provides that a “duly authorized officer” sign Form 19b-4 submissions, but the word “officer” was inadvertently omitted from the signature box when the electronic Form 19b-4 was adopted. 47 The Commission is adopting this amendment as proposed. 46 The proposed amendment to Form 19b-4 is attached as Appendix B. 47 *See* Electronic 19b-4 Adopting Release, *supra* note 7. F. Date of Effectiveness of the Proposal One commenter requested a 30 day delay before implementation of the proposed amendments. 48 The Commission believes that the SROs will benefit from an effective date that provides them with time to familiarize themselves with the EFFS and to make the technological changes to the procedures for updating their Web sites necessary to comply with the new obligations under this proposal. Accordingly, these amendments will become effective on April 28, 2008, 30 days following publication in the **Federal Register** . 48 *See* NFA Letter at 3. III. Paperwork Reduction Act Certain provisions of the amendments to Rule 19b-7 and Form 19b-7 and Rule 19b-4 and Form 19b-4 contain “collection of information requirements” within the meaning of the Paperwork Reduction Act of 1995. 49 Accordingly, the Commission submitted the information to the Office of Management and Budget (“OMB”) for review revisions to the current collection of information titled “Rule 19b-7 Under the Securities Exchange Act of 1934” (OMB Control No. 3235-0553). The Commission also submitted revisions to the current collection of information titled “Form 19b-7 Under the Securities Exchange Act of 1934” (OMB Control No. 3235-0553). In addition, the Commission has submitted revisions to the current collection of information titled “Rule 19b-4 Under the Securities Exchange Act of 1934” (OMB Control No. 3235-0045). Finally, the Commission submitted revisions to the current collection of information titled “Form 19b-4 Under the Securities Exchange Act of 1934” (OMB Control No. 3235-0045). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number. In the Electronic 19b-7 Proposing Release, the Commission solicited comments on the collection of information requirements, but received no response to the solicitation. Accordingly, the Commission is making no adjustments to the burden estimates provided in the Electronic 19b-7 Proposing Release. 50 49 44 U.S.C. 3501 *et seq.* 50 *See supra* note 2, 72 FR 9412, 9418. A. Summary of Collection of Information Prior to these amendments, Rule 19b-7 required an SRO that proposes to add, delete, or amend its rules relating to certain subjects 51 to submit such proposed rule change to the Commission on Form 19b-7. Form 19b-7 required the respondent:
(1)To state the purpose of the proposed rule change;
(2)to state the authority and statutory basis for the proposed rule change;
(3)to describe the proposal's impact on competition;
(4)to provide a summary of any written comments on the proposed rule change received by the SRO; and
(5)to describe the date upon which the proposed rule change becomes effective and provide supporting documentation relevant to the effectiveness date. The amendments add a requirement to Form 19b-7 that an SRO provide on Page 1 of Form 19b-7 more information about a staff member prepared to answer questions about the filing, such as the SRO staff member's title, e-mail address and fax number. The amendments also require Web site posting of all proposed rule changes, and any amendments thereto. In addition, the amendments codify in Rule 19b-7 the requirement previously located in Rule 19b-4(m) that SROs submitting Form 19b-7 post a current and complete set of their rules on their Web sites. In response to a commenter's concerns, the Commission modified the amendment so that a security futures exchange or a limited purpose national securities association will be required to update its Web site within two business days after it files a written certification with the CFTC under Section 5c(c) of the Commodities Exchange Act, within two business days after the SRO's receipt of notice from the CFTC that it has determined that review of the proposed rule change is not necessary, or within two business days after the SRO receives an indication from the CFTC that it has approved the proposed rule change, or within two business days of the Commission's notice of the proposed rule change, if such notice occurs after the CFTC certification, determination, or approval. The amendments also clarify that a mere assertion that the proposed rule change is consistent with the Act is not sufficient to describe why the proposed rule change is consistent with the Act. Rule 19b-4(m) will continue to require SROs to update their rules on their Web sites to reflect proposed rule changes filed pursuant to Section 19(b)(2) and 19(b)(3)(A) of the Act. Proposed Rule 19b-7(g) will require SROs to update their rule texts on their Web sites to reflect rule changes filed pursuant to Section 19(b)(7) of the Act following the Commission's notice of such proposed rule change, within two business days after such rule change takes effect. All SROs that file Form 19b-4 and Form 19b-7 currently post this information on their Web sites. Therefore, SROs will not be required to provide additional information to comply with proposed Rule 19b-7(g) and current Rule 19b-4(m). 51 *See* 15 U.S.C. 78f(g)(4)(B)(i) and 78 *o* -3(k)(3)(A). B. Use of Information The information provided via EAUF, as required by the amendments to Form 19b-7, will be used by the Commission to verify the identity of the individual representing the SRO and provide such individual access to a secure Commission Web site for filing of the Form 19b-7. The amendment will require that SROs post their proposed rule changes filed pursuant to Section 19(b)(7) of the Act on their Web sites, so that these proposals could be viewed by the general public, SRO members, competing SROs, other market participants, and Commission staff. The information will enable interested parties to more easily access SRO rules and rule filings, which will facilitate public comment on proposed SRO rules. In addition, SRO staff, members, industry participants, and Commission staff will utilize the accurate and current version of SRO rules that are posted on the SRO Web site to facilitate compliance with such rules. C. Respondents There are currently five SROs 52 registered with the Commission as national securities exchanges under Section 6(g) of the Act or as a national securities association registered with the Commission under Section 15A(k) of the Act subject to the collection of information for Rule 19b-7, though that number may vary owing to the consolidation of SROs or the introduction of new entities. In a fiscal year, these respondents filed an average of 12 rule change proposals and 3 amendments to those proposed rule change proposals, for an average of 15 filings per fiscal year that are subject to the current collection of information. 53 Of the 12 proposed rule changes filed by SROs, all 12 ultimately became effective because the SROs did not withdraw any proposed rule changes. 52 The Board of Trade of the City of Chicago, Inc. (“CBOT”), Chicago Mercantile Exchange, Inc. (“CME”), CBOE Futures Exchange LLC (“CFE”), NFA, and OneChicago LLC (“OC”). 53 Since the implementation of the CFMA in 2001 to September 30, 2006, SROs have filed 62 proposed rule changes pursuant to Section 19(b)(7) of the Act and 13 amendments. D. Total Annual Reporting and Recordkeeping Burden 1. Background The amendments to Rule 19b-7 and Form 19b-7 are designed to modernize the SRO rule filing process and to make the process more efficient by conserving both SRO and Commission resources. Rule 19b-7 and Form 19b-7 are amended to require SROs to electronically file their proposed rule changes. Form 19b-7 is revised to accommodate electronic submission. In addition, SROs will be required to post on their Web sites proposed rule changes submitted on Form 19b-7 to the Commission and amendments thereto. A conforming amendment codifies in Rule 19b-7 the current requirement in Rule 19b-4(m) for SROs to maintain a current and complete set of their rules on their Web site. 2. Rule 19b-7 and Form 19b-7 The Commission does not expect that the amendments to Rule 19b-7 and Form 19b-7 relating to electronic filing of proposed rule changes and amendments will impose any material upfront cost on SROs. The technology for electronic filing will be Web-based; therefore, the SROs are not expected to have any material upfront technology expenditures for electronic filing because all SROs currently have access to the Internet. However, each SRO will be required to obtain a digital ID from a certificating authority. The Commission estimates the annual cost of the ID to be approximately $20 for each SRO. 54 The Commission estimates that each SRO will purchase five such digital IDs for its staff. Thus, the annual cost of the ID for all SROs is expected to be approximately $500 (5 SROs × $20 × 5). The Commission included these estimates in its proposal and received no comments on them. 54 This estimate is based upon the $19.95 price displayed for the ID on VeriSign's Web site as of October 2, 2007. In addition, the Commission believes that SROs may incur some costs associated with training their personnel about the procedures for submitting proposed rule changes electronically via EFFS. However, the Commission believes that such costs will be one-time costs and relatively insubstantial since the SROs are already familiar with the information required in filing a proposed rule change with the Commission and will be required to submit the same information they currently submit in electronic form under these amendments. Based on the experience of the Commission staff in training SROs for the implementation of electronic Form 19b-4 filings, the Commission estimates that each SRO will spend approximately two hours training each staff member who will use the EFFS to submit the proposed rule changes electronically. Accordingly, the Commission estimates that the upfront cost of training SRO staff members to use EFFS will be 50 hours (5 SROs × 2 hours × 5 staff members). The Commission included these estimates in its proposal and received no comments on them. An SRO rule change proposal is generally filed with the Commission after an SRO's staff has obtained approval from its Board. The time required to complete a filing varies significantly and is difficult to separate from the time an SRO spends in developing internally the proposed rule change. However, the Commission estimates that 15.5 hours is the amount of time required to complete an average rule filing using present Form 19b-7. 55 This figure includes an estimated 11.5 hours of in-house legal work and four hours of clerical work. The amount of time required to prepare amendments varies because some amendments are comprehensive, while other amendments are submitted in the form of a one-page letter. The Commission estimates that, under current rules, seven hours is the amount of time required to prepare an amendment to the rule proposal. This figure includes an estimated two hours of in-house legal work and five hours of clerical work. The Commission included these estimates in its proposal and received no comments on them. 55 *See* Electronic 19b-7 Proposing Release, *supra* note 2. Based upon the experience of electronic filing of proposed rule changes on Form 19b-4, the Commission expects that an electronic Form 19b-7 and new requirements to Form 19b-7 will reduce by three hours the amount of SRO clerical time required to prepare the average proposed rule change and by four hours for an amendment thereto. The Commission does not believe that the new instruction specifying that an SRO describe the purpose of the proposed rule change in sufficient detail to enable the Commission to determine whether abrogation is appropriate will add any additional burden to the Form 19b-7 filing process because the existing Instructions to Form 19b-7 already required that all information in the Form must be presented in a manner which will enable the Commission to make such a determination. The Commission does not believe that the additional contact information of an SRO staff member on Page 1 of the Form will add any measurable burden to an SRO submitting a Form 19b-7, because the information is so readily accessible to the party submitting the filing. The Commission does not believe that requiring the SROs to indicate on Page 1 of Form 19b-7 whether the CFTC has determined that review of the proposed rule change is not necessary or that the CFTC has approved the proposed rule change, as proposed herein, will create any addition burden to the SROs because the SROs are already required to indicate such information in Exhibit 1 to Form 19b-7. With the proposed electronic filing, the Commission staff estimates that 12.5 hours is the amount of time that will be required to complete an average rule filing and that three hours is the amount of time required to complete an average amendment. These figures reflect the three hours in savings in clerical hours that would result from the use of an electronic form for rule filings and four hours for amendments. 56 The Commission estimates that the reporting burden for filing rule change proposals and amendments with the Commission under the proposed amendments will be 159 hours (12 rule change proposals × 12.5 hours + 3 amendments × 3 hours). The Commission included these estimates in its proposal and received no comments on them. 56 The SROs' four hour time savings would result from the elimination of tasks, such as making multiple copies of the Form 19b-7 and amendments, arranging for couriers, and making follow-up telephone calls to ensure Commission receipt. 3. Posting of Proposed Rule Changes Filed Under Rule 19b-7 on SRO Web Sites The amendments also require SROs to post proposed rule changes filed under Rule 19b-7, and any amendments thereto, on their Web sites. The Commission estimates that 30 minutes is the amount of time that will be required to post a proposed rule on an SRO's Web site and that 30 minutes is the amount of time that will be required to post an amendment on an SRO's Web site. 57 The Commission estimates that the reporting burden for posting rule change proposals and amendments on the SRO Web sites will be approximately eight hours (12 rule change proposals × 0.5 hours + 3 amendments × 0.5 hours). The Commission included these estimates in its proposal and received no comments on them. 57 This estimate is based on information from the Commission's Office of Information Technology. 4. SRO Rule Text Currently, all SROs are required to post their current rules on their Web sites pursuant to Rule 19b-4(m). The Commission estimates, based upon its analysis in the Electronic 19b-4 Adopting Release, that the amount of the time required to update an SRO's rule text on its Web site after a proposed rule change becomes effective to be four hours. Proposed rule changes submitted under Section 19(b)(7)(A) become effective an average of 12 times a year. Therefore, the Commission estimates that the reporting burden for updating the posted SRO rules on the SRO Web site will be 48 hours (12 proposed rule changes submitted pursuant to Section 19(b)(7)(A) × 4 hours). The Commission included these estimates in its proposal and received no comments on them. The amendment will move the burden associated with complying with this provision from Rule 19b-4(m) to Rule 19b-7(g). Based upon the Commission's reporting burden estimate described above, the Commission estimates that the amendments will reduce the burden associated with SROs' compliance with the requirement provided in Rule 19b-4 that SROs post current and complete rule text on their Web sites and update that rule text after it changes following the effectiveness of a proposed rule change by 48 hours annually and increase the corresponding burden for compliance with Rule 19b-7 by 48 hours. The Commission anticipates that the amendments to Rule 19b-7(g) proposed herein, relating to the timing of updates to SRO rules do not impact the compliance burden for this rule. The Commission included these estimates in its proposal and received no comments on them. In addition, in response to comments from the NFA, the Commission is also modifying Rule 19b-4(m) as it applies to an exchange registered with the Commission under Section 6(g) or a limited purpose national securities association registered under Section 15A(k). In its comment letter, the NFA noted that receipt of notification of CFTC action is not always immediate and requested that the Commission change the period within which an exchange registered with the Commission under Section 6(g) or a limited purpose national securities association registered under Section 15A(k) is required to update its Web site to be based on receipt of CFTC action and not the date the CFTC action occurs. 58 In response to this comment, Rule 19b-7(g) will now require that an exchange registered with the Commission under Section 6(g) or a limited purpose national securities association registered under Section 15A(k) to update its rule text on its Web site to reflect rule changes filed under Section 19(b)(2) of the Act within two business day of the later of:
(1)Commission approval of the proposed rule change; or
(2)the SRO's filing of a written certification with the CFTC under Section 5c(c) of the Commodities Exchange Act, notice from the CFTC that it has determined that review of the proposed rule change is not necessary, or notice from the CFTC that it has approved the proposed rule change. The Commission does not believe this amendment will create any additional burden to SROs because the SROs are already required to update their Web sites following the Commission's approval of rule changes submitted to the Commission pursuant to Section 19(b)(2) of the Act. 58 *See* NFA Letter, *supra* note 10 at 2-3. 5. Total Annual Reporting Burden The Commission estimates that the total annual reporting burden under the proposed rule will be 167 hours (159 hours for filing proposed rule changes and amendments + 8 hours for posting proposed rule changes and amendments on the SROs' Web sites + 48 hours for posting and updating complete sets of SRO rule text pursuant to Rule 19b-7—48 hours for posting and updating complete sets of SRO rule text pursuant to Rule 19b-4). In addition to the 167 hour annual burden, the Commission believes that SROs may incur some costs associated with training their personnel about the procedures for submitting proposed rule changes electronically and submission of the information via EFFS. However, the Commission believes that such costs will be one-time costs and relatively insubstantial since the SROs are already familiar with the information required in filing a proposed rule change with the Commission and will be required to submit the information (already required to be submitted) electronically under this proposal. The Commission estimates that each SRO will spend approximately two hours training each staff member who will use the EFFS to submit the proposed rule changes electronically. Accordingly, the Commission estimates that the upfront cost of training SRO staff members to use EFFS will be 50 hours (5 SROs × 2 hours × 5 staff members). The Commission does not expect that the amendments with regard to electronic filing will impose any material additional costs on SROs. Instead, the Commission believes that the amendments to Rule 19b-7 and Form 19b-7, on balance, will reduce paperwork costs related to the submission of SRO proposed rule changes. The technology for electronic filing will be Web-based; therefore, the SROs are not expected to have any technology expenditures for electronic filing because all SROs currently have access to the Internet. As previously stated, the SROs may incur costs of eight hours annually to post on their Web site their proposed rules, and amendments thereto, no later than two business days after filing with by the Commission. With regard to posting of and updating of accurate and complete text of SRO final rules, the Commission believes that the amendments will increase the burden associated with complying Rule 19b-7 by 48 hours and reduce the burden associated with complying with Rule 19b-4 by 48 hours. In addition, the Commission does not anticipate that SROs will incur any additional costs in complying with the change to Form 19b-4, which adds the word “officer” to the Signature Box because the addition of the word simply provides transparency to an obligation that already exists. 59 Accordingly, the Commission does not believe that SROs will incur any additional costs in posting this information on their Web sites. 59 *See* Section F of the Instructions to Form 19b-4. E. Retention Period of Recordkeeping Requirements The SROs will be required to retain records of the collection of information (the manually signed signature page of the Form 19b-7) for a period of not less than five years, the first two years in an easily accessible place, according to the current recordkeeping requirements set forth in Rule 17a-1 under the Act. 60 The SROs will be required to retain proposed rule changes, and any amendments, on their Web sites until 60 days after effectiveness of the proposed rule that is filed with both the Commission and the CFTC or within two business days of withdrawal of the proposed rule change or notification that it is improperly filed. 61 The SRO will be required at all times to maintain an accurate and up-to-date copy of all of its rules on its Web site. 62 60 SROs may also destroy or otherwise dispose of such records at the end of five years according to Rule 17a-5 under the Act. 17 CFR 240.17a-5. 61 *See* Rule 19b-7(f). 62 *See* Rule 19b-7(g). F. Collection of Information Is Mandatory Any collection of information pursuant to the amendments to Rule 19b-7 and Form 19b-7 to require electronic filing with the Commission of SRO proposed rule changes will be a mandatory collection of information filed with the Commission as a means for the Commission to review, and, as required, take action with respect to SRO proposed rule changes. Any collection of information pursuant to amendments to require Web site posting by the SROs of their proposed and final rules will also be a mandatory collection of information. G. Responses to Collection of Information Will Not Be Kept Confidential Other than information for which an SRO requests and obtains confidential treatment in accordance with the provisions of 5 U.S.C. 522, the collection of information pursuant to amendments to Rule 19b-7 and Form 19b-7 under the Act will not be confidential and will be publicly available. 63 63 Consistent with applicable law, proposed SRO rule changes containing proprietary or otherwise sensitive information may be accorded confidential treatment, including requests submitted pursuant to the protection afforded for such information in the Freedom of Information Act, 5 U.S.C. 552. IV. Costs and Benefits of the Rulemaking In the Electronic 19b-7 Proposing Release, the Commission identified certain costs and benefits of the amendments to Rule 19b-7 and Form 19b-7. 64 As noted, the Commission estimates that the total annual paperwork reporting burden under the proposed rule will be 167 hours. The Commission, however, believes that there will be an overall reduction of costs based on the amendments. 65 The Commission received one comment letter relating to the cost and benefits of the proposed amendments. 66 The commenter expressed its belief that the amendment will reduce the costs and burdens associated with compliance with Rule 19b-7 and Form 19b-7. Thus, after careful consideration, the Commission is not modifying its costs and benefits analysis from that presented in the Electronic 19b-7 Proposing Release 67 and believes that the benefits of the amendments justify the costs that they will impose. 64 *See supra* note 2, 72 FR 9412, 9418. 65 As noted in the Paperwork Reduction Act analysis, the Commission staff based this total reporting burden of 159 hours for filing proposed rule changes and amendments + 8 hours for posting proposed rule changes and amendments on the SROs' Web sites + 48 hours for posting and updating complete sets of SRO rule text pursuant to Rule 19b-7—48 hours for posting and updating complete sets of SRO rule text pursuant to Rule 19b-4. 66 *See* NFA Letter, *supra* note 10. 67 *See* Proposing Release, *supra* note 2 at 27-30. A. Benefits The amendments are designed to modernize the filing, receipt, and processing of SRO proposed rule changes and to make the SRO rule filing process more efficient by conserving both SRO and Commission resources. The Commission believes that the changes to Rule 19b-7 and Form 19b-7 will permit SROs to file proposed rule changes with the Commission more quickly and economically. For example, SROs are currently required to pay for delivery costs of multiple paper copies to the Commission and incur costs associated with monitoring the Commission's Public Reference Room for competitors' rule filings. Requiring SROs to electronically file proposed rule changes under Rule 19b-7 is expected to reduce expenses associated with clerical time, postage, and copying and to increase the speed, accuracy, and availability of information beneficial to investors, other SROs, and financial markets. The Commission does not expect that the amendments will impose additional costs on SROs. Instead, the Commission believes that the amendments to Rule 19b-7 and Form 19b-7, on balance, will reduce costs related to the submission of SRO proposed rule changes. The technology for electronic filing will be Web-based; therefore, the SRO is not expected to have any material increase in technology expenditures for electronic filing because all SROs currently have access to the Internet. Accordingly, the Commission believes that the amendments to Rule 19b-7 and Form 19b-7, by requiring the SROs to submit proposed rule changes electronically, will reduce their costs. Because Commission staff will no longer manually process the receipt and distribution of SRO rule filings submitted on Form 19b-7, electronic filing will also expedite the Commission's receipt of SRO proposed rule changes filed under Rule 19b-7 and provide the SROs with the certainty that the Commission has received the proposed rule changes and has captured pertinent information about the rule changes in SRTS. Based on the Commission's experience with electronic filing of Form 19b-4, the Commission believes that integrating this electronic filing technology with SRTS will also enhance the Commission's ability to monitor and process SRO proposed rule changes filed on Form 19b-7. Moreover, requiring SROs to post proposed rule changes filed under Rule 19b-7 on their Web sites no later than two business days after filing with the Commission is designed to increase availability of SRO proposed rules and thereby facilitate the ability of interested parties to comment on proposed rule changes. For instance, the posting of these proposed rule changes will provide the public with access to the filings on the SROs' Web sites and thereby reduce the burden on SRO and Commission staff related to providing information about proposed rule changes to interested parties. The Commission believes that the posting of the proposed rule changes submitted on Form 19b-7 will also save SRO resources that are currently being used to monitor the Commission's Public Reference Room for competitors' proposed rule changes. B. Costs As previously noted, the Commission estimates that the annual paperwork reporting costs will be 167 hours under the proposed rule. The Commission believes that SROs may incur some costs associated with training their personnel about the procedures for submitting proposed rule changes electronically and submission of the information via EFFS. However, the Commission believes that such costs will be one-time costs and insubstantial since the SROs are already familiar with the information required in filing a proposed rule change with the Commission and will be required to submit the same information electronically under these amendments. In the Electronic 19b-7 Proposing Release, the Commission estimated that the total amount of one-time costs that SROs will incur in training personnel how to use EFFS is 50 hours and received no comments on this estimate. The Commission believes that the SROs may also incur some minimal costs (currently $20 per year) associated with purchasing digital IDs for each duly authorized officer electronic signatories. 68 The Commission also believes that the SROs will have to make temporary adjustments to their recordkeeping procedures since the SROs will be required to print out the Form 19b-7 signature block, manually sign proposed rule changes, and retain the manual signature for not less than five years. However, there are not expected to be additional costs associated with such recordkeeping as SROs are currently required to retain the Form 19b-7 for not less than five years. 68 In the Electronic 19b-7 Proposing Release, the Commission estimated that each SRO will purchase five of their staff such digital IDs. Thus, the annual cost of the digital ID for all SROs will be $500 (5 SROs × $20 × 5). The Commission received no comments on this estimate. Moreover, the Commission believes that the requirement that SROs post proposed rule changes on their Web sites will impose some but not substantial costs on most SROs. The Commission notes that no new costs will be associated with posting a current and complete version of their rules on their Web site because currently all SROs promptly post this information on their Web sites pursuant to Rule 19b-4(m). In addition, the Commission does not anticipate that SROs will incur any material additional costs in complying with the change to Form 19b-4, which adds the word “officer” to the Signature Box because the addition of the word simply provides transparency to an obligation that already exists. 69 Therefore, at all times, each SRO must maintain a current and complete set of its rules to facilitate compliance with this requirement. Accordingly, the Commission does not believe that SROs will incur substantial costs in simply posting this information on their Web sites because they are already required to do so. 69 *See* Section F of the Instructions to Form 19b-4. V. Consideration of the Burden on Competition, Promotion of Efficiency, and Capital Formation Section 3(f) of the Act 70 requires the Commission, whenever it engages in rulemaking and is required to consider or determine whether an action is necessary or appropriate in the public interest, to consider whether the action will promote efficiency, competition, and capital formation. In addition, Section 23(a)(2) of the Act 71 requires the Commission, when promulgating rules under the Act, to consider the impact any such rules would have on competition. Section 23(a)(2) further provides that the Commission may not adopt a rule that would impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Act. 70 15 U.S.C. 78c(f). 71 15 U.S.C. 78w(a)(2). In the Electronic 19b-7 Proposing Release, the Commission considered how the proposed amendments to Rule 19b-7 and Form 19b-7 would impact competition among SROs, and whether they would promote efficiency and capital formation. 72 The Commission requested comment on the competitive or anticompetitive effects of the amendments to Rule 19b-7 and Form 19b-7 on any market participants if adopted as proposed. The Commission also requested comment on what impact the amendments, if adopted, would have on efficiency and capital formation. The Commission requested commenters to provide empirical data to support their views. The NFA and Dr. Angel both commented that they believed that the proposal would increase the efficiency of the 19b-7 rule filing process. 73 72 *See supra* note 1, 72 FR 9412, 9419. 73 *See* Angel Letter and NFA Letter, *supra* note 10. The amendments are intended to modernize the receipt and review of SRO proposed rule changes and to make the SRO rule filing process more efficient by conserving both SRO and Commission resources. As a result of the new requirement to file proposed rule changes electronically, the Commission anticipates that SROs will save time and resources currently devoted to corresponding under a paper-based system. As discussed in further detail in Section IV (“Costs and Benefits of the Rulemaking”), the Commission anticipates that SROs will save staff time in the preparation and transmission of Form 19b-7 as well as associated preparation and delivery costs. The amendments also are intended to improve the transparency of the SRO rule filing process and facilitate access to current and complete sets of SRO rules. The Commission believes that the Web site posting of rule filings submitted on Form 19b-7 will promote competition among SROs because they will be able to determine the proposed rules of their competitors more easily. Further, because the proposal does not impact a significant number of businesses or investors, the Commission believes it will have minimal impact on capital formation. VI. Regulatory Flexibility Act Certifications The Commission has certified, pursuant to Section 605(b) of the Regulatory Flexibility Act, 74 that the amendments to Rule 19b-7 and Form 19b-7 and Rule 19b-4 and Form 19b-4 will not have a significant economic impact on a substantial number of small entities. This certification, including the reasons supporting the certification, was incorporated into the Electronic 19b-7 Proposing Release. 75 The Commission solicited comments as to the nature of any impact on small entities. No comments were received. 74 5 U.S.C. 605(b). 75 *See supra* note 2, 72 FR 9412, 9419-20. VII. Statutory Basis and Text of Proposed Amendments The amendments to Rule 19b-7 and Form 19b-7 under the Act are being adopted pursuant to 15 U.S.C. 78a *et seq.* , particularly sections 3(b), 6, 15A, 19(b), and 23(a) of the Act. List of Subjects in 17 CFR Parts 240 and 249 Reporting and recordkeeping requirements, Securities. In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows: PART 240—GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934 1. The authority citation for part 240 continues to read in part as follows: Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78 *l* , 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78 *ll* , 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, and 7201 *et seq.* ; and 18 U.S.C. 1350, unless otherwise noted. 2. Section 240.19b-4 is amended by revising paragraph
(m)to read as follows: § 240.19b-4 Filings with respect to proposed rule changes by self-regulatory organizations.
(1)Each self-regulatory organization shall post and maintain a current and complete version of its rules on its Web site.
(2)A self-regulatory organization, other than a self-regulatory organization that is registered with the Commission under section 6(g) of the Act (15 U.S.C. 78f(g)) or pursuant to section 15A(k) of the Act (15 U.S.C. 78 *o* -1(k)), shall update its Web site to reflect rule changes filed pursuant to section 19(b)(2) of the Act (15 U.S.C. 78s(b)(2)) within two business days after it has been notified of the Commission's approval of a proposed rule change, and to reflect rule changes filed pursuant to section 19(b)(3)(A) of the Act (15 U.S.C. 78s(b)(3)(A)) within two business days of the Commission's notice of such proposed rule change.
(3)A self-regulatory organization that is registered with the Commission under section 6(g) of the Act (15 U.S.C. 78f(g)) or pursuant to section 15A(k) of the Act (15 U.S.C. 78 *o* -1(k)), shall update its Web site to reflect rule changes filed pursuant to section 19(b)(2) of the Act by two business days after the later of:
(A)Notification that the Commission has approved a proposed rule change; and
(i)The filing of a written certification with the Commodity Futures Trading Commission under section 5c(c) of the Commodity Exchange Act (7 U.S.C. 7a-2(c));
(ii)Receipt of notice from the Commodity Futures Trading Commission that it has determined that review of the proposed rule change is not necessary; or
(iii)Receipt of notice from the Commodity Futures Trading Commission that it has approved the proposed rule change.
(4)If a rule change is not effective for a certain period, the self-regulatory organization shall clearly indicate the effective date in the relevant rule text. 3. Section 240.19b-7 is amended by: a. Adding a preliminary note; b. Revising paragraphs
(a)and (b)(1); and c. Adding paragraphs (d), (e),
(f)and (g). The additions and revisions read as follows: § 240.19b-7 Filings with respect to proposed rule changes submitted pursuant to Section 19(b)(7) of the Act. Preliminary Note: A self-regulatory organization also must refer to Form 19b-7 (17 CFR 249.822) for further requirements with respect to the filing of proposed rule changes.
(a)Filings with respect to proposed rule changes by a self-regulatory organization submitted pursuant to section 19(b)(7) of the Act (15 U.S.C. 78s(b)(7)) shall be made electronically on Form 19b-7 (17 CFR 249.822).
(b)* * *
(1)A completed Form 19b-7 (17 CFR 249.822) is submitted electronically; and
(d)Filings with respect to proposed rule changes by a self-regulatory organization submitted on Form 19b-7 (17 CFR 249.822) electronically shall contain an electronic signature. For the purposes of this section, the term electronic signature means an electronic entry in the form of a magnetic impulse or other form of computer data compilation of any letter or series of letters or characters comprising a name, executed, adopted or authorized as a signature. The signatory to an electronically submitted rule filing shall manually sign a signature page or other document, in the manner prescribed by Form 19b-7, authenticating, acknowledging or otherwise adopting his or her signature that appears in typed form within the electronic filing. Such document shall be executed before or at the time the rule filing is electronically submitted and shall be retained by the filer in accordance with 17 CFR 240.17a-1.
(e)If the conditions of this section and Form 19b-7 (17 CFR 249.822) are otherwise satisfied, all filings submitted electronically on or before 5:30 p.m. Eastern Standard Time or Eastern Daylight Saving Time, whichever is currently in effect, on a business day, shall be deemed filed on that business day, and all filings submitted after 5:30 p.m. Eastern Standard Time or Eastern Daylight Saving Time, whichever is currently in effect, shall be deemed filed on the next business day.
(f)The self-regulatory organization shall post the proposed rule change, and any amendments thereto, submitted on Form 19b-7 (17 CFR 249.822), on its Web site within two business days after the filing of the proposed rule change, and any amendments thereto, with the Commission. Unless the self-regulatory organization withdraws the proposed rule change or is notified that the proposed rule change is not properly filed, such proposed rule change and amendments shall be maintained on the self-regulatory organization's Web site until 60 days after:
(1)The filing of a written certification with the Commodity Futures Trading Commission under section 5c(c) of the Commodity Exchange Act (7 U.S.C. 7a-2(c));
(2)The Commodity Futures Trading Commission determines that review of the proposed rule change is not necessary; or
(3)The Commodity Futures Trading Commission approves the proposed rule change; and
(4)In the case of a proposed rule change, or any amendment thereto, that has been withdrawn or not properly filed, the self-regulatory organization shall remove the proposed rule change, or any amendment, from its Web site within two business days of notification of improper filing or withdrawal by the self-regulatory organization of the proposed rule change. (g)(1) Each self-regulatory organization shall post and maintain a current and complete version of its rules on its Web site.
(2)The self-regulatory organization shall update its Web site to reflect rule changes filed pursuant to section 19(b)(7) of the Act (15 U.S.C. 78s(b)(7)), by two business days after the later of:
(A)The Commission's notice of such proposed rule change; and (B)(i) The filing of a written certification with the Commodity Futures Trading Commission under section 5c(c) of the Commodity Exchange Act (7 U.S.C. 7a-2(c));
(ii)Receipt of notice from the Commodity Futures Trading Commission that it has determined that review of the proposed rule change is not necessary; or
(iii)Receipt of notice from the Commodity Futures Trading Commission that it has approved the proposed rule change.
(3)If a rule change is not effective for a certain period, the self-regulatory organization shall clearly indicate the effective date in the relevant rule text. PART 249—FORMS, SECURITIES EXCHANGE ACT OF 1934 4. The authority citation for part 249 continues to read in part as follows: Authority: 15 U.S.C. 78a *et seq.* and 7201 *et seq.* ; and 18 U.S.C. 1350, unless otherwise noted. 5. Section 249.822 is revised to read as follows: § 249.822 Form 19b-7, for electronic filing with respect to proposed rule changes by self-regulatory organizations under Section 19(b)(7)(A) of the Securities Exchange Act of 1934. This form shall be used by self-regulatory organizations, as defined in section 3(a)(25) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(25)), to file electronically proposed rule changes with the Commission pursuant to section 19(b)(7) of the Act (15 U.S.C. 78s(b)(7)) and § 240.19b-7 of this chapter. 6. Form 19b-7 (referenced in § 249.822) is revised to read as follows: Note: Form 19b-7 is attached as Appendix A to this document. Note: The text of Form 19b-7 will not appear in the Code of Federal Regulations. By the Commission. Dated: March 19, 2008. Florence E. Harmon, Deputy Secretary. Appendix A General Instructions for Form 19b-7 A. Use of the Form All self-regulatory organization proposed rule changes submitted pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”), shall be filed electronically through the Electronic Form Filing System (“EFFS”), a secure Web site operated by the Commission. This form shall be used for filings of proposed rule changes by all self-regulatory organizations pursuant to Section 19(b)(7) of the Act. National securities exchanges registered pursuant to Section 6(g) of the Act and limited purpose national securities associations registered pursuant to Section 15A(k) of the Act are self-regulatory organizations for purposes of this form. B. Need for Careful Preparation of the Completed Form, Including Exhibits This form, including the exhibits, is intended to elicit information necessary for the public to provide meaningful comment on the proposed rule change and for the Commission to determine whether abrogation of the proposal is appropriate because it unduly burdens competition or efficiency, conflicts with the securities laws, or is inconsistent with the public interest and the protection of investors. The self-regulatory organization must provide all the information called for by the form, including the exhibits, and must present the information in a clear and comprehensible manner. The proposed rule change shall be considered filed with the Commission on the date on which the Commission receives the proposed rule change if the filing complies with all requirements of this form. Any filing that does not comply with the requirements of this form may be returned to the self-regulatory organization at any time before the issuance of the notice of filing. Any filing so returned shall for all purposes be deemed not to have been filed with the Commission. See also Rule 0-3 under the Act (17 CFR 240.0-3). C. Documents Comprising the Completed Form The completed form filed with the Commission shall consist of the Form 19b-7 Page 1, numbers and captions for all items, responses to all items, and exhibits required in Instruction H. In responding to an item, the completed form may omit the text of the item as contained herein if the response is prepared to indicate to the reader the coverage of the item without the reader having to refer to the text of the item or its instructions. Each filing shall be marked on the Form 19b-7 with the initials of the self-regulatory organization, the four-digit year, and the number of the filing for the year ( *i.e.* , SRO-YYYY-XX). If the self-regulatory organization is filing Exhibit 2 or 3 via paper, the exhibits must be filed within 5 business days of the electronic submission of all other required documents. D. Amendments If information on this form or exhibit thereto is or becomes inaccurate before the proposed rule change becomes effective, the self-regulatory organization shall file amendments correcting any such inaccuracy. Amendments shall be filed as specified in Instruction E. Amendments to a filing shall include the Form 19b-7 Page 1 marked to number consecutively the amendments, numbers and captions for each amended item, amended response to the item, and required exhibits. The amended description in Section II. A. 1. of Exhibit 1 shall explain the purpose of the amendment and, if the amendment changes the purpose of or basis for the proposed rule change, the amended response shall also provide a revised purpose and basis statement for the proposed rule change. Exhibit 1 shall be re-filed if there is a material change from the immediately preceding filing in the language of the proposed rule change or in the information provided. If the amendment alters the text of an existing rule, the amendment shall include the text of the existing rule, marked in the manner described in Section I. of Exhibit 1 using brackets to indicate words to be deleted from the existing rule and underscoring to indicate words to be added. The purpose of this marking requirement is to maintain a current copy of how the text of the existing rule is being changed. If the self-regulatory organization is amending only part of the text of a lengthy proposed rule change, it may, with the Commission staff's permission, file only those portions of the text of the proposed rule change in which changes are being made if the filing ( *i.e.* , partial amendment) is clearly understandable on its face. Such partial amendment shall be clearly identified and marked to show deletions and additions. If, after the rule change is filed but before it becomes effective, the self-regulatory organization receives or prepares any correspondence or other communications reduced to writing (including comment letters) to and from such self-regulatory organization concerning the proposed rule change, the communications shall be filed as Exhibit 2. If information in the communication makes the rule change filing inaccurate, the filing shall be amended to correct the inaccuracy. If such communications cannot be filed electronically in accordance with Instruction E, the communications shall be filed in accordance with Instruction F. E. Signature and Filing of the Completed Form All proposed rule changes, amendments, extensions, and withdrawals of proposed rule changes shall be filed through the EFFS. In order to file Form 19b-7 through EFFS, self-regulatory organizations must request access to the SEC's External Application Server by completing a request for an external account user ID and password for the use of the External Application User Authentication Form. Initial requests will be received by contacting the Division of Trading and Markets Administrator located on our Web site ( *http://www.sec.gov* ). An e-mail will be sent to the requestor that will provide a link to a secure Web site where basic profile information will be requested. A duly authorized officer of the self-regulatory organization shall electronically sign the completed Form 19b-7 as indicated on Page 1 of the Form. In addition, a duly authorized officer of the self-regulatory organization shall manually sign one copy of the completed Form 19b-7, and the manually signed signature page shall be maintained pursuant to Section 17 of the Act. F. Procedures for Submission of Paper Documents for Exhibits 2 and 3 To the extent that Exhibit 2 or 3 cannot be filed electronically in accordance with Instruction E, four copies of Exhibit 2 or 3 shall be filed with the Division of Trading and Markets, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-6628. Page 1 of the electronic Form 19b-7 shall accompany paper submissions of Exhibit 2 or 3. If the self-regulatory organization is filing Exhibit 2 or 3 via paper, they must be filed within five days of the electronic filing of all other required documents. G. Withdrawals of Proposed Rule Changes If a self-regulatory organization determines to withdraw a proposed rule change, it must complete Page 1 of the Form 19b-7 and indicate by selecting the appropriate check box to withdraw the filing. H. Exhibits List of exhibits to be filed, as specified in Instructions C and D: *Exhibit 1.* Completed Notice of Proposed Rule Change for publication in the **Federal Register** . It is the responsibility of the self-regulatory organization to prepare Items I, II and III of the notice. Leave a 1-inch margin at the top, bottom, and right hand side, and a 1 1/2 inch margin at the left hand side. Number all pages consecutively. Double space all primary text and single space lists of items, quoted material when set apart from primary text, footnotes, and notes to tables. Amendments to Exhibit 1 should be filed in accordance with Instructions D and E. *Exhibit 2.*
(a)Copies of notices issued by the self-regulatory organization soliciting comment on the proposed rule change and copies of all written comments on the proposed rule change received by the self-regulatory organization (whether or not comments were solicited), presented in alphabetical order, together with an alphabetical listing of such comments. If such notices and comments cannot be filed electronically in accordance with Instruction E, the notices and comments shall be filed in accordance with Instruction F.
(b)Copies of any transcript of comments on the proposed rule change made at any public meeting or, if a transcript is not available, a copy of the summary of comments on the proposed rule change made at such meeting. If such transcript of comments or summary of comments cannot be filed electronically in accordance with Instruction E, the transcript of comments or summary of comments shall be filed in accordance with Instruction F.
(c)Any correspondence or other communications reduced to writing (including comment letters and e-mails) concerning the proposed rule change prepared or received by the self-regulatory organization. All correspondence or other communications should be presented in alphabetical order together with an alphabetical listing of the authors, and shall be filed in accordance with Instruction E. If such communications cannot be filed electronically in accordance with Instruction E, the communications shall be filed in accordance with Instruction F.
(d)If after the proposed rule change is filed but before it becomes effective, the self-regulatory organization prepares or receives any correspondence or other communications reduced to writing (including comment letters and e-mails) to and from such self-regulatory organization concerning the proposed rule change, the communications shall be filed in accordance with Instruction E. All correspondence or other communications should be presented in alphabetical order together with an alphabetical listing of the authors. If such communications cannot be filed electronically in accordance with Instruction E, the communications shall be filed in accordance with Instruction F. *Exhibit 3.* If any form, report, or questionnaire is—
(a)Proposed to be used in connection with the implementation or operation of the proposed rule change, or
(b)Prescribed or referred to in the proposed rule change, then the form, report, or questionnaire must be attached and shall be considered as part of the proposed rule change. If completion of the form, report or questionnaire is voluntary or is required pursuant to an existing rule of the self-regulatory organization, then the form, report, or questionnaire, together with a statement identifying any existing rule that requires completion of the form, report, or questionnaire, shall be attached as Exhibit 3. If the form, report, or questionnaire cannot be filed electronically in accordance with Instruction E, the documents shall be filed in accordance with Instruction F. *Exhibit 4.* The self-regulatory organization must attach as Exhibit 4 proposed changes to its rule text. Changes in, additions to, or deletions from, any existing rule shall be set forth with brackets used to indicate words to be deleted and underscoring used to indicate words to be added. Exhibit 4 shall be considered part of the proposed rule change. *Exhibit 5.* The self-regulatory organization must attach one of the following: Certificate of Effectiveness of Proposed Rule Change: Attach a copy of the certification submitted to the CFTC pursuant to Section 5c(c) of the Commodity Exchange Act. CFTC Request or Determination that Review of the Proposed Rule Change is Not Necessary: Attach a copy of any request submitted to the CFTC for determination that review of the proposed rule change is not necessary and any indication from the CFTC that it has determined that review of the proposed rule change is not necessary. Request for CFTC Approval of Proposed Rule Change: Attach a copy of any request submitted to the CFTC for approval of the proposed rule change and any indication received from the CFTC that the proposed rule change has been approved. BILLING CODE 8011-01-P ER27MR08.015 ER27MR08.016 BILLING CODE 8011-01-C Information To Be Included in the Completed Exhibit 1 SECURITIES AND EXCHANGE COMMISSION (Release No. 34- ; File No. SR-[SRO Name]-[YYYY]-[XX]) SELF-REGULATORY ORGANIZATIONS; [SRO Name]; Proposed Rule Change Relating to [brief description of the subject matter of the proposed rule change]. Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”), 76 notice is hereby given that on [date 77 ], the [name of self-regulatory organization] filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change described in Items I, II, and III below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. [Name of self-regulatory organization] also has filed this proposed rule change concurrently with the Commodity Futures Trading Commission (“CFTC”). [Section 19(b)(7)(B) provides that a proposed rule change may take effect upon the occurrence of one of three events. The self-regulatory organization should include one of the following sentences, whichever is applicable:] 76 15 U.S.C. 78s(b)(7). 77 To be completed by the Commission. This date will be the date on which the Commission receives the proposed rule change filing if the filing complies with all requirements of this form. *See* General Instructions for Form 19b-7. The [name of self-regulatory organization] filed a written certification with the CFTC under Section 5c(c) of the Commodity Exchange Act on [date]; or The [name of self-regulatory organization] on [date], has requested that the CFTC make a determination that review of the proposed rule change of the [self-regulatory organization] is not necessary. The CFTC has [made such determination on [date]]; or [has not made such determination]; or The [name of self-regulatory organization] on [date] submitted the proposed rule change to the CFTC for approval. The CFTC [approved the proposed rule change on [date]]; or [has not approved the proposed rule change]. I. Self-Regulatory Organization's Description and Text of the Proposed Rule Change [Supply a brief statement of the terms of substance of the proposed rule change. If the proposed rule change is relatively brief, a separate statement need not be prepared, and the text of the proposed rule change may be inserted in lieu of the statement of the terms of substance. If the proposed rule change amends an existing rule, indicate the changes in the rule by brackets for words to be deleted and underscoring for words to be added.] II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for the Proposed Rule Change In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for the Proposed Rule Change 1. Purpose [Provide a statement of the purpose of the proposed rule change. The statement must describe the text of the proposed rule change in a sufficiently detailed and specific manner as to enable the public to provide meaningful comment on the proposal. At a minimum, the statement should:]
(a)[Describe the reasons for adopting the proposed rule change, any problems the proposed rule change is intended to address, the manner in which the proposed rule change will resolve those problems, the manner in which the proposed rule change will affect various persons ( *e.g.* brokers, dealers, issuers, and investors), and any significant problems known to the self-regulatory organization that persons affected are likely to have in complying with the proposed rule change; and]
(b)[Describe how the proposed rule change relates to existing rules of the self-regulatory organization. If the self-regulatory organization reasonably expects that the proposed rule change will have any direct effect, or significant indirect effect, on the application of any other rule of the self-regulatory organization, set forth the designation or title of any such rule and describe the anticipated effect of the proposed rule change on the application of such other rule. Include the file numbers for prior filings with respect to any existing rule specified.] 2. Statutory Basis [Explain why the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to the self-regulatory organization. A mere assertion that the proposed rule change is consistent with those requirements is not sufficient. Certain limitations that the Act imposes on self-regulatory organizations are summarized in the notes that follow. Note 1. *National Securities Exchanges.* Under Section 6 of the Act, rules of a national securities exchange may not permit unfair discrimination between customers, issuers, brokers, or dealers, and may not regulate, by virtue of any authority conferred by the Act, matters not related to the purposes of the Act or the administration of the self-regulatory organization. Note 2. *Limited Purpose National Securities Associations.* Under Section 15A(k) of the Act, rules of a national securities association registered for the limited purpose of regulating the activities of members who are registered as brokers or dealers in security futures products must be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general to protect investors and the public interest, including rules governing sales practices and the advertising of security futures products reasonably comparable to those of other national securities associations registered pursuant to Section 15A(a) that are applicable to security futures products. The rules may not be designed to regulate, by virtue of any authority conferred by the Act, matters not related to the purposes of the Act or the administration of the association.] B. Self-Regulatory Organization's Statement on Burden on Competition [The information required by this section must be sufficiently detailed and specific to support the premise that the proposed rule change does not unduly burden competition. In responding to this section, the self-regulatory organization must: • State whether the proposed rule change will have an impact on competition and, if so
(i)State whether the proposed rule change will impose any burden on competition or whether it will relieve any burden on, or otherwise promote, competition, and
(ii)Specify the particular categories of persons and kinds of businesses on which any burden will be imposed and the ways in which the proposed rule change will affect them. • Explain why any burden on competition is not undue; or, if the self-regulatory organization does not believe that the burden on competition is significant, explain why. In providing those explanations, set forth and respond in detail to written comments as to any significant impact or burden on competition perceived by any person who has made comments on the proposed rule change to the self-regulatory organization.] C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others [If written comments were received (whether or not comments were solicited) from members of or participants in the self-regulatory organization or others, summarize the substance of all such comments received and respond in detail to any significant issues that those comments raised about the proposed rule change. If an issue is summarized and responded to in detail under Section II.A.1. or Section II.B. of this Form 19b-7 Notice, that response need not be duplicated if appropriate cross-reference is made to the place where the response can be found. If comments were not or are not to be solicited, so state.] III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action [The self-regulatory organization shall include the following with the applicable phrase on the proposed rule change's effectiveness:] The proposed rule change has become effective on [insert date of filing of written certification with the CFTC under Section 5c(c) of the Commodity Exchange Act; or the date of determination by the CFTC that review of the proposed rule change is not necessary; or the date of approval of the proposed rule change by the CFTC]. [or] The proposed rule change is not effective because the CFTC [has not determined that review of the proposed rule changes is not necessary or has not approved the proposed rule change]. At any time within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of Section 19(b)(1) of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-[SRO]-[YYYY]-[XX] on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-[SRO]-[YYYY]-[XX]. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the [SRO]. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make publicly available. All submissions should refer to File Number SR-[SRO]-[YYYY]-[XX] and should be submitted on or before April 17, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 1 1 17 CFR 200.30-3(a)(73). Secretary BILLING CODE 8011-01-P Appendix B ER27MR08.017 ER27MR08.018 [FR Doc. E8-5998 Filed 3-26-08; 8:45 am] BILLING CODE 8011-01-C LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 384 [Docket No. 2007-1 CRB DTRA-BE] Determination of Rates and Terms for Business Establishment Services AGENCY: Copyright Royalty Board, Library of Congress. ACTION: Final rule. SUMMARY: The Copyright Royalty Judges are publishing final regulations that set the rates and terms for the making of an ephemeral recording of a sound recording by a business establishment service for the period 2009-2013. DATES: These regulations become effective on January 1, 2009. FOR FURTHER INFORMATION CONTACT: Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor, by telephone at
(202)707-7658 or by e-mail at *crb@loc.gov.* SUPPLEMENTARY INFORMATION: Background In 1995, Congress enacted the Digital Performance in Sound Recordings Act, Public Law No. 104-39, which created an exclusive right for copyright owners of sound recordings, subject to certain limitations, to perform publicly sound recordings by means of certain digital audio transmissions. Among the limitations on the performance right was the creation of a statutory license for nonexempt, noninteractive digital subscription transmissions. 17 U.S.C. 114(d). The Digital Millennium Copyright Act of 1998 (“DMCA”), Public Law No. 105-304, expanded the scope of the section 114 license to allow for the public performance of a sound recording when made in accordance with the terms and rates of the statutory license, 17 U.S.C. 114(d), by a preexisting satellite digital audio radio service or as part of an eligible nonsubscription transmission. The DMCA also created a statutory license for the making of an “ephemeral recording” of a sound recording by certain transmitting organizations. 17 U.S.C. 112(e). This license allows entities that transmit performances of sound recordings to business establishments, pursuant to the limitations set forth in section 114(d)(1)(C)(iv), to make an ephemeral recording of a sound recording for a later transmission. *Id.* The license also provides a means by which a transmitting entity with a statutory license under section 114(f) can make more than the one phonorecord permitted under the exemption set forth in section 112(a). 17 U.S.C. 112(e). The current rates and terms for the making of ephemeral recordings of sound recordings by a business establishment service were set by the Librarian of Congress and appear in 37 CFR Part 262. The Copyright Royalty and Distribution Reform Act of 2004 (“CRDRA”), Public Law No. 108-419, transferred the jurisdiction over these rates and terms to the Copyright Royalty Judges (“CRJs”) and prescribed that the rates and terms found in 37 CFR Part 262 would remain in effect until December 31, 2008. *See* Section 6(b)(3) of the CRDRA; 17 U.S.C. 804(b)(2). This Proceeding On January 5, 2007, pursuant to 17 U.S.C. 803(b)(1)(A)(i)(II), the Copyright Royalty Judges published a notice in the **Federal Register** announcing commencement of the proceeding to determine rates and terms of royalty payments for the making of ephemeral recordings by business establishment services under section 112(e) and requesting interested parties to submit their petitions to participate. 72 FR 584. Petitions to Participate were received from Music Choice, Royalty Logic, Inc. (“RLI”), Muzak, LLC, SoundExchange, Inc., Sirius Satellite Radio, Inc. (“Sirius”), and XM Satellite Radio (“XM”). The Judges set the timetable for the three-month negotiation period, *see* 17 U.S.C. 803(b)(3), and directed the participants to submit their written direct statements no later than October 31, 2007. On October 31, 2007, the Judges received a notice of settlement entered into by all parties to the proceeding, with the exception of Muzak, which had withdrawn from the proceeding on October 5, 2007, and RLI. Accompanying the notice of settlement was a motion by SoundExchange requesting that the Judges adopt the proposed rates and terms. SoundExchange also filed its written direct statement, since RLI had not agreed to the proposed settlement. RLI did not file a written direct statement or an opposition to SoundExchange's motion. Prior to a ruling on this motion, SoundExchange filed a motion to dismiss RLI from this proceeding for failure to file a written direct statement and renewed its request for publication of the proposed rates and terms for notice and comment. See Motion filed November 28, 2007. The Judges received no opposition to this motion from RLI. Consequently, the Judges granted SoundExchange's motion and dismissed RLI from this proceeding. *See,* Order Granting SoundExchange's Motion to Dismiss Royalty Logic, Inc. in Docket No. 2007-1 CRB DTRA-BE (December 6, 2007). With RLI's dismissal, all of the remaining parties agreed to the proposed settlement. Section 801(b)(7)(A) allows for the adoption of rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided they are submitted to the Copyright Royalty Judges for approval. This section provides that in such event:
(i)The Copyright Royalty Judges shall provide to those that would be bound by the terms, rates, or other determination set by any agreement in a proceeding to determine royalty rates an opportunity to comment on the agreement and shall provide to participants in the proceeding under section 803(b)(2) that would be bound by the terms, rates, or other determination set by the agreement an opportunity to comment on the agreement and object to its adoption as a basis for statutory terms and rates; and
(ii)The Copyright Royalty Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement, if any participant described in clause
(i)objects to the agreement and the Copyright Royalty Judges conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates. 17 U.S.C. 801(b)(7)(A). Accordingly, on January 30, 2008, the Judges published a Notice of Proposed Rulemaking (“NPRM”) requesting comment on the proposed rates and terms submitted to the Judges. 73 FR 5466. Comments were due by February 29, 2008. In response to the NPRM, the Judges received only one comment, which was submitted by SoundExchange, supporting the adoption of the proposed regulations. Having received no objections from a party that would be bound by the proposed rates and terms and that would be willing to participate in further proceedings, the Copyright Royalty Judges, by this notice, are adopting final regulations which set the rates and terms for the making of ephemeral recordings by business establishment services for the license period 2009-2013. List of Subjects in 37 CFR Part 384 Copyright, Digital audio transmissions, Ephemeral recordings, Performance right, Sound recordings. Final Regulations For the reasons set forth in the preamble, the Copyright Royalty Judges are adding part 384 to Chapter III of title 37 of the Code of Federal Regulations to read as follows: PART 384—RATES AND TERMS FOR THE MAKING OF EPHEMERAL RECORDINGS BY BUSINESS ESTABLISHMENT SERVICES Sec. 384.1 General. 384.2 Definitions. 384.3 Royalty fees for Ephemeral Recordings. 384.4 Terms for making payment of royalty fees and statements of account. 384.5 Confidential information. 384.6 Verification of royalty payments. 384.7 Verification of royalty distributions. 384.8 Unclaimed funds. Authority: 17 U.S.C. 112(e), 801(b)(1). § 384.1 General.
(a)*Scope.* This part 384 establishes rates and terms of royalty payments for the making of Ephemeral Recordings by a Business Establishment Service, as defined in § 384.2(a), in accordance with the provisions of 17 U.S.C. 112(e), during the period 2009-2013 (the “License Period”).
(b)*Legal compliance.* Licensees relying upon the statutory licenses set forth in 17 U.S.C. 112 shall comply with the requirements of that section, the rates and terms of this part and any other applicable regulations.
(c)*Relationship to voluntary agreements.* Notwithstanding the royalty rates and terms established in this part, the rates and terms of any license agreements entered into by Copyright Owners and services shall apply in lieu of the rates and terms of this part to the making of Ephemeral Recordings within the scope of such agreements. § 384.2 Definitions. For purposes of this part, the following definitions shall apply: *Business Establishment Service* means a service making transmissions of sound recordings under the limitation on exclusive rights specified by 17 U.S.C. 114(d)(1)(C)(iv). *Collective* is the collection and distribution organization that is designated by the Copyright Royalty Judges. For the License Period, the Collective is SoundExchange, Inc. *Copyright Owner* is a sound recording copyright owner who is entitled to receive royalty payments made under this part pursuant to the statutory license under 17 U.S.C. 112(e). *Ephemeral Recording* is a phonorecord created for the purpose of facilitating a transmission of a public performance of a sound recording under the limitations on exclusive rights specified by 17 U.S.C. 114(d)(1)(C)(iv), and subject to the limitations specified in 17 U.S.C. 112(e). *Licensee* is a Business Establishment Service that has obtained a compulsory license under 17 U.S.C. 112(e) and the implementing regulations therefor to make Ephemeral Recordings. *Performers* means the independent administrators identified in 17 U.S.C. 114(g)(2)(B) and
(C)and the parties identified in 17 U.S.C. 114(g)(2)(D). *Qualified Auditor* is a certified public accountant. § 384.3 Royalty fees for Ephemeral Recordings.
(a)*Basic royalty rate.* For the making of any number of Ephemeral Recordings in the operation of a service pursuant to the limitation on exclusive rights specified by 17 U.S.C. 114(d)(1)(C)(iv), a Licensee shall pay 10% of such Licensee's “Gross Proceeds” derived from the use in such service of musical programs that are attributable to copyrighted recordings. “Gross Proceeds” as used in this section means all fees and payments, including those made in kind, received from any source before, during or after the License Period that are derived from the use of copyrighted sound recordings during the License Period pursuant to 17 U.S.C. 112(e) for the sole purpose of facilitating a transmission to the public of a performance of a sound recording under the limitation on exclusive rights specified in 17 U.S.C. 114(d)(1)(C)(iv). The attribution of Gross Proceeds to copyrighted recordings may be made on the basis of:
(1)For classical programs, the proportion that the playing time of copyrighted classical recordings bears to the total playing time of all classical recordings in the program, and
(2)For all other programs, the proportion that the number of copyrighted recordings bears to the total number of all recordings in the program.
(b)*Minimum fee.* Each Licensee shall pay a minimum fee of $10,000 for each calendar year in which it makes Ephemeral Recordings for use to facilitate transmissions under the limitation on exclusive rights specified by 17 U.S.C. 114(d)(1)(C)(iv), whether or not it does so for all or any part of the year. These minimum fees shall be nonrefundable, but shall be fully creditable to royalty payments due under paragraph
(a)of this section for the same calendar year (but not any subsequent calendar year).
(c)*Other royalty rates and terms.* This part 384 does not apply to persons or entities other than Licensees, or to Licensees to the extent that they make other types of ephemeral recordings beyond those set forth in paragraph
(a)of this section. For ephemeral recordings other than those governed by paragraph
(a)of this section, persons making such ephemeral recordings must pay royalties, to the extent (if at all) applicable, under 17 U.S.C. 112(e) or as prescribed by other law, regulation or agreement. § 384.4 Terms for making payment of royalty fees and statements of account.
(a)*Payment to Collective.* A Licensee shall make the royalty payments due under § 384.3 to the Collective.
(b)*Designation of the Collective.*
(1)Until such time as a new designation is made, SoundExchange, Inc., is designated as the Collective to receive statements of account and royalty payments from Licensees due under § 384.3 and to distribute such royalty payments to each Copyright Owner, or their designated agents, entitled to receive royalties under 17 U.S.C. 112(e).
(2)If SoundExchange, Inc. should dissolve or cease to be governed by a board consisting of equal numbers of representatives of Copyright Owners and Performers, then it shall be replaced by a successor Collective upon the fulfillment of the requirements set forth in paragraph (b)(2)(i) of this section.
(i)By a majority vote of the nine Copyright Owner representatives and the nine Performer representatives on the SoundExchange board as of the last day preceding the condition precedent in paragraph (b)(2) of this section, such representatives shall file a petition with the Copyright Royalty Judges designating a successor to collect and distribute royalty payments to Copyright Owners entitled to receive royalties under 17 U.S.C. 112(e) that have themselves authorized such Collective.
(ii)The Copyright Royalty Judges shall publish in the **Federal Register** within 30 days of receipt of a petition filed under paragraph (b)(2)(i) of this section an order designating the Collective named in such petition.
(c)*Monthly payments.* A Licensee shall make any payments due under § 384.3(a) by the 45th day after the end of each month for that month, except that if the Copyright Royalty Judges issue their final determination adopting these rates and terms after the commencement of the License Period, then payments due under § 384.3(a) for the period from the beginning of the License Period through the last day of the month in which the Copyright Royalty Judges issue their final determination adopting these rates and terms shall be due 45 days after the end of such period. All monthly payments shall be rounded to the nearest cent.
(d)*Minimum payments.* A Licensee shall make any payment due under § 384.3(b) by January 31 of the applicable calendar year, except that:
(1)If the Copyright Royalty Judges issue their final determination adopting these rates and terms after the commencement of the License Period, then payment due under § 384.3(b) for 2009 shall be due 45 days after the last day of the month in which these rates and terms are adopted by the Copyright Royalty Judges and published in the **Federal Register** ; and
(2)Payment for a Licensee that has not previously made Ephemeral Recordings pursuant to the license under 17 U.S.C. 112(e) shall be due by the 45th day after the end of the month in which the Licensee commences to do so.
(e)*Late payments.* A Licensee shall pay a late fee of 0.75% per month, or the highest lawful rate, whichever is lower, for any payment received by the Collective after the due date. Late fees shall accrue from the due date until payment is received by the Collective.
(f)*Statements of account.* For any part of the period beginning on the date the Copyright Royalty Judges issue their final determination adopting these rates and terms and ending on December 31, 2013, during which a Licensee operates a Business Establishment Service, by 45 days after the end of each month during the period, the Licensee shall deliver to the Collective a statement of account containing the information set forth in this paragraph
(f)on a form prepared, and made available to Licensees, by the Collective. If a payment is owed for such month, the statement of account shall accompany the payment. A statement of account shall contain only the following information:
(1)Such information as is necessary to calculate the accompanying royalty payment, or if no payment is owed for the month, to calculate any portion of the minimum fee recouped during the month;
(2)The name, address, business title, telephone number, facsimile number, electronic mail address and other contact information of the individual or individuals to be contacted for information or questions concerning the content of the statement of account;
(3)The handwritten signature of:
(i)The owner of the Licensee or a duly authorized agent of the owner, if the Licensee is not a partnership or a corporation;
(ii)A partner or delegee, if the Licensee is a partnership; or
(iii)An officer of the corporation, if the Licensee is a corporation;
(4)The printed or typewritten name of the person signing the statement of account;
(5)The date of signature;
(6)If the Licensee is a partnership or a corporation, the title or official position held in the partnership or corporation by the person signing the statement of account;
(7)A certification of the capacity of the person signing; and
(8)A statement to the following effect: I, the undersigned owner or agent of the Licensee, or officer or partner, if the Licensee is a corporation or partnership, have examined this statement of account and hereby state that it is true, accurate and complete to my knowledge after reasonable due diligence.
(g)*Distribution of payments.* The Collective shall distribute royalty payments directly to Copyright Owners; Provided that the Collective shall only be responsible for making distributions to those Copyright Owners who provide the Collective with such information as is necessary to identify and pay the correct recipient of such payments. The Collective shall distribute royalty payments on a basis that values all Ephemeral Recordings by a Licensee equally based upon the information provided by the Licensee pursuant to the regulations governing reports of use of sound recordings by Licensees; Provided, however, that Copyright Owners that authorize the Collective may agree with the Collective to allocate their shares of the royalty payments made by any Licensee among themselves on an alternative basis. Copyright Owners entitled to receive payments may agree with the Collective upon payment protocols to be used by the Collective that provide for alternative arrangements for the payment of royalties.
(h)*Permitted deductions.* The Collective may deduct from the payments made by Licensees under § 384.3, prior to the distribution of such payments to any person or entity entitled thereto, all incurred costs permitted to be deducted under 17 U.S.C. 114(g)(3); Provided, however, that any party entitled to receive royalty payments under 17 U.S.C. 112(e) may agree to permit the Collective to make any other deductions.
(i)*Retention of records.* Books and records of a Licensee and of the Collective relating to the payment, collection, and distribution of royalty payments shall be kept for a period of not less than 3 years. § 384.5 Confidential information.
(a)*Definition.* For purposes of this part, “Confidential Information” shall include the statements of account, any information contained therein, including the amount of royalty payments, and any information pertaining to the statements of account reasonably designated as confidential by the Licensee submitting the statement.
(b)*Exclusion.* Confidential Information shall not include documents or information that at the time of delivery to the Collective are public knowledge. The Collective shall have the burden of proving that the disclosed information was public knowledge.
(c)*Use of Confidential Information.* In no event shall the Collective or any other person or entity authorized to have access to Confidential Information pursuant to paragraph
(d)of this section use any Confidential Information for any purpose other than royalty collection and distribution and activities directly related thereto.
(d)*Disclosure of Confidential Information.* Access to Confidential Information shall be limited to:
(1)Those employees, agents, attorneys, consultants and independent contractors of the Collective, subject to an appropriate confidentiality agreement, who are engaged in the collection and distribution of royalty payments hereunder and activities related thereto, who are not also employees or officers of a Copyright Owner or Performer, and who, for the purpose of performing such duties during the ordinary course of their work, require access to the records;
(2)Board members of the Collective, and members of Collective committees whose primary functions are directly related to royalty collection and distribution, subject to an appropriate confidentiality agreement and for the sole purpose of performing their duties as board or committee members of the Collective, as applicable, provided that the sole confidential information that may be shared pursuant to this paragraph (d)(2) is confidential information contained in monthly statements of accounts provided pursuant to § 384.4(f) that accompany royalty payments;
(3)An independent and Qualified Auditor, subject to an appropriate confidentiality agreement, who is authorized to act on behalf of the Collective with respect to the verification of a Licensee's royalty payments pursuant to § 384.6 or on behalf of a Copyright Owner with respect to the verification of royalty distributions pursuant to § 384.7;
(4)Copyright owners whose works have been used under the statutory license set forth in 17 U.S.C. 112(e) by the Licensee whose Confidential Information is being supplied, or agents thereof, subject to an appropriate confidentiality agreement, provided that the sole confidential information that may be shared pursuant to paragraph (d)(4) of this section are monthly statements of account provided pursuant to § 384.4(f) that accompany royalty payments;
(5)In connection with future proceedings under 17 U.S.C. 112(e) before the Copyright Royalty Judges, and under an appropriate protective order, attorneys, consultants and other authorized agents of the parties to the proceedings or the courts; and
(6)In connection with bona fide royalty disputes or claims that are the subject of the procedures under § 384.6 or § 384.7, and under an appropriate confidentiality agreement or protective order, the specific parties to such disputes or claims, their attorneys, consultants or other authorized agents, and/or arbitration panels or the courts to which disputes or claims may be submitted.
(e)*Safeguarding of Confidential Information.* The Collective and any person or entity identified in paragraph
(d)of this section shall implement procedures to safeguard all Confidential Information using a reasonable standard of care, but no less than the same degree of security used to protect Confidential Information or similarly sensitive information belonging to such Collective, person, or entity. § 384.6 Verification of royalty payments.
(a)*General.* This section prescribes procedures by which the Collective may verify the royalty payments made by a Licensee.
(b)*Frequency of verification.* The Collective may conduct a single audit of a Licensee, upon reasonable notice and during reasonable business hours, during any given calendar year, for any or all of the prior 3 calendar years, but no calendar year shall be subject to audit more than once.
(c)*Notice of intent to audit.* The Collective must file with the Copyright Royalty Judges a notice of intent to audit a particular Licensee, which shall, within 30 days of the filing of the notice, publish in the **Federal Register** a notice announcing such filing. The notification of intent to audit shall be served at the same time on the Licensee to be audited. Any such audit shall be conducted by an independent and Qualified Auditor identified in the notice, and shall be binding on all parties.
(d)*Acquisition and retention of records.* The Licensee shall use commercially reasonable efforts to obtain or to provide access to any relevant books and records maintained by third parties for the purpose of the audit and retain such records for a period of not less than 3 years. The Collective shall retain the report of the verification for a period of not less than 3 years.
(e)*Acceptable verification procedure.* An audit, including underlying paperwork, which was performed in the ordinary course of business according to generally accepted auditing standards by an independent and Qualified Auditor, shall serve as an acceptable verification procedure for all parties with respect to the information that is within the scope of the audit.
(f)*Consultation.* Before rendering a written report to the Collective, except where the auditor has a reasonable basis to suspect fraud and disclosure would, in the reasonable opinion of the auditor, prejudice the investigation of such suspected fraud, the auditor shall review the tentative written findings of the audit with the appropriate agent or employee of the Licensee being audited in order to remedy any factual errors and clarify any issues relating to the audit; Provided that the appropriate agent or employee of the Licensee reasonably cooperates with the auditor to remedy promptly any factual errors or clarify any issues raised by the audit.
(g)*Costs of the verification procedure.* The Collective shall pay the cost of the verification procedure, unless it is finally determined that there was an underpayment of 10% or more, in which case the Licensee shall, in addition to paying the amount of any underpayment, bear the reasonable costs of the verification procedure. § 384.7 Verification of royalty distributions.
(a)*General.* This section prescribes procedures by which any Copyright Owner may verify the royalty distributions made by the Collective; Provided, however, that nothing contained in this section shall apply to situations where a Copyright Owner and the Collective have agreed as to proper verification methods.
(b)*Frequency of verification.* A Copyright Owner may conduct a single audit of the Collective upon reasonable notice and during reasonable business hours, during any given calendar year, for any or all of the prior 3 calendar years, but no calendar year shall be subject to audit more than once.
(c)*Notice of intent to audit.* A Copyright Owner must file with the Copyright Royalty Judges a notice of intent to audit the Collective, which shall, within 30 days of the filing of the notice, publish in the **Federal Register** a notice announcing such filing. The notification of intent to audit shall be served at the same time on the Collective. Any such audit shall be conducted by an independent and Qualified Auditor identified in the notice, and shall be binding on all Copyright Owners.
(d)*Acquisition and retention of records.* The Collective shall use commercially reasonable efforts to obtain or to provide access to any relevant books and records maintained by third parties for the purpose of the audit and retain such records for a period of not less than 3 years. The Copyright Owner requesting the verification procedure shall retain the report of the verification for a period of not less than 3 years.
(e)*Acceptable verification procedure.* An audit, including underlying paperwork, which was performed in the ordinary course of business according to generally accepted auditing standards by an independent and Qualified Auditor, shall serve as an acceptable verification procedure for all parties with respect to the information that is within the scope of the audit.
(f)*Consultation.* Before rendering a written report to a Copyright Owner, except where the auditor has a reasonable basis to suspect fraud and disclosure would, in the reasonable opinion of the auditor, prejudice the investigation of such suspected fraud, the auditor shall review the tentative written findings of the audit with the appropriate agent or employee of the Collective in order to remedy any factual errors and clarify any issues relating to the audit; Provided that the appropriate agent or employee of the Collective reasonably cooperates with the auditor to remedy promptly any factual errors or clarify any issues raised by the audit.
(g)*Costs of the verification procedure.* The Copyright Owner requesting the verification procedure shall pay the cost of the procedure, unless it is finally determined that there was an underpayment of 10% or more, in which case the Collective shall, in addition to paying the amount of any underpayment, bear the reasonable costs of the verification procedure. § 384.8 Unclaimed funds. If a Collective is unable to identify or locate a Copyright Owner who is entitled to receive a royalty payment under this part, the Collective shall retain the required payment in a segregated trust account for a period of 3 years from the date of payment. No claim to such payment shall be valid after the expiration of the 3-year period. After the expiration of this period, the Collective may apply the unclaimed funds to offset any costs deductible under 17 U.S.C. 114(g)(3). The foregoing shall apply notwithstanding the common law or statutes of any State. Dated: March 20, 2008. James Scott Sledge, Chief Copyright Royalty Judge. [FR Doc. E8-6174 Filed 3-26-08; 8:45 am] BILLING CODE 1410-72-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-0AR-2007-1176; A-1-FRL-8546-9] Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Diesel Anti-Idling Regulation AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: The EPA is approving a State Implementation Plan
(SIP)revision submitted on November 29, 2007 by the State of Rhode Island. This SIP revision includes a regulation that prohibits the unnecessary idling of diesel engines and vehicles in Rhode Island. The regulation sets limits for the amount of time and under what conditions diesel engines may idle. EPA is approving the rule because the standards and requirements set by the rule will strengthen the Rhode Island SIP. The intended effect of this action is to approve this rule into the Rhode Island SIP. EPA is approving this rule pursuant to the Clean Air Act. DATES: This direct final rule will be effective May 27, 2008, unless EPA receives adverse comments by April 28, 2008. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R01-0AR-2007-1176 by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: arnold.anne@epa.gov.* 3. *Fax:*
(617)918-0047. 4. *Mail:* “Docket Identification Number EPA-R01-0AR-2007-1176,” Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023, or 5. *Hand Delivery or Courier:* Deliver your comments to: Anne Arnold, Manager, Air Quality Planning Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R01-0AR-2007-1176. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through *http://www.regulations.gov,* or e-mail, information that you consider to be CBI or otherwise protected. The *http://www.regulations.gov* website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.govindex.* Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. In addition, copies of the state submittal and EPA's technical support document
(TSD)are also available for public inspection during normal business hours, by appointment at the State Air Agency; Office of Air Resources, Department of Environmental Management, 235 Promenade Street, Providence, RI 02908-5767. FOR FURTHER INFORMATION CONTACT: Robert C. Judge, Office of Ecosystem Protection, EPA New England, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023; 617-918-1045 (phone); 617-918-0045 (fax); e-mail at *judge.robert@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Organization of this document. The following outline is provided to aid in locating information in this preamble. I. What Action Is EPA Taking? II. What are the Requirements of Rhode Island's Regulation Number 45? III. Why is EPA Approving Rhode Island's Rule? IV. Final Action V. Statutory and Executive Order Reviews I. What Action Is EPA Taking? EPA is approving Rhode Island's Regulation Number 45, “Rhode Island Diesel Engine Anti-Idling Program,” and incorporating this rule into the Rhode Island SIP. Regulation Number 45 was adopted by the State of Rhode Island following the passage of a State law prescribing that such a rule be adopted to minimize the adverse health effects of unnecessary idling. The regulation was effective in the State of Rhode Island on July 19, 2007, and on November 29, 2007, the State submitted this rule to EPA as a SIP revision. II. What Are the Requirements of Rhode Island's Regulation Number 45? Pursuant to Regulation Number 45, with specified exceptions, diesel motor vehicles may not idle for longer than 5 minutes in any 60 minute period (per section 45.3), and nonroad engines may not idle unnecessarily (per section 45.4). Exceptions to these requirements are specified in section 45.5 of the rule and include: temperature based exemptions for excessively hot or cold days; allowances for vehicle repair; vehicle inspections; emergency vehicles in emergency operations; vehicles which are stuck in traffic; and the use of sleeper berths during federally mandated rest periods. The TSD prepared for this action includes more detail on these exemptions, or the regulation itself can be reviewed for details on how these exemptions apply. Per section 45.2 of this rule, this rule applies “to any person, entity, owner or operator with control over the operations of diesel engines.” Persons violating this rule may be fined under State law in accordance with penalty provisions of State law, as described in section 45.6 of the regulation. This rule was adopted pursuant to Rhode Island General Laws Section 31-16.1-2, and applies throughout the entire State of Rhode Island. III. Why Is EPA Approving Rhode Island's Rule? Rhode Island's Regulation Number 45 will result in emission reductions of volatile organic compounds, nitrogen oxides, carbon monoxide, and fine particulate matter. The approval of this rule will strengthen the Rhode Island SIP and assist the state in meeting and maintaining compliance with air quality standards, including the standard for ground level ozone. Rhode Island's Regulation Number 45 is generally consistent with EPA's “Model State Idling Law” (EPA420-S-06-001, April 2006). This model rule was developed with input from the States and industry to address idling issues in a consistent and understandable manner from state to state, to aid in compliance. IV. Final Action EPA is approving Rhode Island's Air Pollution Control Regulation Number 45, entitled “Rhode Island Diesel Engine Anti-Idling Program,” and incorporating this rule into the Rhode Island SIP. The rule is intended to eliminate unnecessary idling from diesel motor vehicle engines and non-road diesel engines in Rhode Island. This rule is being approved because EPA has found that the rule will help prevent emissions of volatile organic compounds, nitrogen oxides, carbon monoxide, and fine particles and will strengthen the Rhode Island SIP. The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective May 27, 2008 without further notice unless the Agency receives relevant adverse comments by April 28, 2008. If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 27, 2008 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 27, 2008. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Dated: March 14, 2008. Robert W. Varney, Regional Administrator, EPA New England. Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart OO—Rhode Island 2. In § 52.2070 (c), the table entitled “EPA Approved Rhode Island Regulations,” is amended by adding a new entry, “Air Pollution Control Regulation Number 45” in numerical order to read as follows: § 52.2070 Identification of plan.
(c)EPA approved regulations. EPA Approved Rhode Island Regulations State citation Title/subject State effective date EPA approval date Explanations * * * * * * * Air Pollution Control Regulation Number 45 Rhode Island Diesel Engine Anti-Idling Program July 19, 2007 March 27, 2008; [Insert Federal Register page number where the document begins] Limits idling for diesel on-highway and non-road engines. * * * * * * * [FR Doc. E8-6183 Filed 3-26-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR PART 52 [EPA-HQ-OAR-2007-1173, FRL-8545-6] RIN 2060-APO3 Completeness Findings for Section 110(a) State Implementation Plans for the 8-hour Ozone NAAQS AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The EPA is making a finding concerning whether or not each State has submitted a complete State Implementation Plan
(SIP)that provides the basic program elements specified in Clean Air Act (Act or CAA) section 110(a)(2) necessary to implement the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS). By this action, EPA is identifying those States that: Have failed to make a complete submission for all requirements; have failed to make a complete submission for specific requirements; or have made a complete submission. The findings of failure to submit for all or a portion of a State's SIP establish a 24-month deadline for EPA to promulgate Federal Implementation Plans
(FIPs)to address the outstanding SIP elements unless, prior to that time, the affected States submit, and EPA approves, the required SIPs. The findings that all, or portions of a State's SIP submission, are complete establish a 12-month deadline for EPA to take action upon the complete SIP elements in accordance with section 110(k). DATES: The effective date of this rule is April 28, 2008. FOR FURTHER INFORMATION CONTACT: General questions concerning this notice should be addressed to Mr. Larry D. Wallace, PhD, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C504-2, 109 TW Alexander Drive, Research Triangle Park, NC 27709; telephone
(919)541-0906. SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedures Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because no significant EPA judgment is involved in making a finding of failure to submit SIPs, or elements of SIPs, required by the CAA, where states have made no submissions, or incomplete submissions, to meet the requirement by the statutory date. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B). For questions related to a specific State please contact the appropriate regional office: Regional offices States Dave Conroy, Acting Branch Chief, Air Programs Branch, EPA New England, 1 Congress Street, Suite 1100, Boston, MA 02203-2211 Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290 Broadway, 21st Floor, New York, NY 10007-1866 New Jersey, New York, Puerto Rico, and the Virgin Islands. Christina Fernandez, Acting Branch Chief, Air Quality Planning Branch, EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2187 Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia. Dick A. Schutt, Chief, Regulatory Development Section, EPA Region IV, Sam Nunn, Atlanta Federal Center, 61 Forsyth Street, SW., 12th Floor, Atlanta, GA 30303 Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 West Jackson Street, Chicago, IL 60604 Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. Tom Diggs, Acting Associate Director Air Programs, EPA Region VI, 1445 Ross Avenue, Dallas, TX 75202-2733 Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. Joshua A. Tapp, Chief, Air Programs Branch, EPA Region VII, 901 North 5th Street, Kansas City, Kansas 66101-2907 Iowa, Kansas, Missouri, and Nebraska. Cynthia Cody, Unit Leader, Air Quality Planning Unit, EPA Region VIII Air Program, 1595 Wynkoop St. (8P-AR), Denver, CO 80202-1129 Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. Lisa Hanf, Air Planning Office, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105 Arizona, California, Guam, Hawaii, and Nevada. Mahbubul Islam, Manager, State and Tribal Air Programs, EPA Region X, Office of Air, Waste, and Toxics, Mail Code OAQ-107, 1200 Sixth Avenue, Seattle, WA 98101 Alaska, Idaho, Oregon, and Washington. Table of Contents I. Background II. This Action A. Finding of Failure To Submit for States that Failed To Make a Submittal B. Finding of Failure To Submit Specific Elements of Section 110(a)(2) C. List of States That Submitted Complete Submissions To Satisfy the Section 110(a)(2) Requirements III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act
(RFA)D. Unfunded Mandates Reform Act of 1995
(UMRA)E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority and Low Income Populations K. Congressional Review Act L. Judicial Review I. Background On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-hour average concentrations. The 8-hour averaging period replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 ppm to 0.08 ppm (62 FR 38,856). The CAA section 110(a) requires States to submit SIPs that provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within 3 years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon States to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the State develops and submits the SIP for a new or revised NAAQS necessarily affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the State's existing SIP already contains. In the case of the 1997 8-hour ozone NAAQS, States typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous ozone standards. Section 110(a)(2) lists specific elements that States must meet in these SIP submissions. The requirements include SIP infrastructure elements such as requirements for modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this action are listed in EPA's October 2, 2007 memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and
(2)for the 1997 8-hour Ozone and PM-2.5 National Ambient Air Quality Standards.” Two elements identified in section 110(a)(2) are not governed by the 3 year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are:
(i)Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA, and
(ii)submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. Therefore, this action does not cover these specific SIP elements. This action also does not pertain to section 110(a)(2)(D), because EPA has previously addressed that requirement. 1 1 EPA published a finding that all States had failed to submit SIPs addressing interstate transport for the 8-hour ozone and PM <sup>2.5</sup> NAAQS, as required by section 110(a)(2)(D)(i). *See* 70 FR 21,147 (April 25, 2005). As of 2004, States had not submitted complete SIPs to satisfy all of the section 110(a)(2) requirements for the 1997 8-hour ozone NAAQS revision. On March 4, 2004, Earth Justice submitted a notice of intent to sue related to EPA's failure to issue findings of failure to submit related to these requirements. Subsequently, EPA entered into a Consent Decree with Earth Justice which required EPA, among other things, to complete a **Federal Register** notice announcing EPA's determinations pursuant to section 110(k)(1)(B) as to whether each State has made complete submissions to meet the requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA received an extension of the date to complete this **Federal Register** notice until March 17, 2008, based upon an agreement to make the findings with respect to submissions made by January 7, 2008. In accordance with the Consent Decree, EPA is making completeness findings for each State based upon what the Agency received from each State as of January 7, 2008. This notice reflects EPA's determinations with respect to the section 110(a)(2) requirements, based upon the submissions made by the States, either certifying that they have already met the requirements, making a submission to meet any outstanding requirements, or both. For those States that have not yet made a submittal, or that made a submittal that was not complete with respect to each element of section 110(a)(2), EPA is making a finding of failure to submit. For those States that did not make any submittal by January 7, 2008, EPA is making a finding with respect to all of the section 110(a)(2) SIP elements. For those States that did not make a submittal that addressed all of the section 110(a)(2) elements, EPA is making these findings only with respect to those specific section 110(a)(2) SIP elements which a State has not certified that it has met, or not made a SIP submission to meet, as of January 7, 2008. These findings establish a 24 month deadline for the promulgation by EPA of a FIP, in accordance with section 110(c)(1). These findings of failure to submit do not impose sanctions, or set deadlines for imposing sanctions as described in section 179 of the CAA, because these finding do not pertain to the elements of a Title I part D plan for nonattainment areas as required under section 110(a)(2)(I), and because this action is not a SIP call pursuant to section 110(k)(5). With respect to the remaining section 110(a)(2) SIP elements in those States in which EPA has identified specific findings of failure to submit, EPA is by this action making a finding that the remainder of such SIPs are complete. Likewise, with respect to those States for which EPA has not made any finding of failure to submit concerning the section 110(a)(2) SIP elements, EPA is by this action making a finding that such SIPs are complete for all such elements. These full and partial completeness findings establish a 12-month deadline for EPA to take action upon such SIPs in accordance with section 110(k). II. This Action The EPA is making a finding concerning whether each State has submitted or failed to submit a complete SIP that provides the basic program elements of section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. For those States that have not yet made a complete submission, or that have not made a submission that is complete for each element of section 110(a)(2), these findings establish a 24-month deadline for the promulgation by EPA of a FIP addressing these specific SIP elements, in accordance with section 110(c)(1). For those States that have submitted a complete SIP, and for those elements of SIPs in States for which EPA has identified only partial incompleteness, these findings establish a 12-month deadline for action upon the SIP, in accordance with section 110(k). This action will be effective on April 28, 2008. A. Finding of Failure To Submit for States That Failed to Make a Submittal The following States failed to make a complete submittal to satisfy the requirements of section 110(a)(2) by January 7, 2008. EPA is by this action starting a 24-month deadline by which time EPA must promulgate a FIP for the affected States to address section 110(a)(2) requirements, if the affected States fail to submit, and obtain EPA approval of, the SIP revisions necessary to address these requirements. The States and territories that are affected by this finding of failure to submit are the following: Region I: Vermont Region VI: Texas Region VIII: North Dakota Region IX: Arizona, Hawaii, Nevada, 2 Guam, American Samoa, Commonwealth of the Northern Mariana Islands. 2 It should be noted that, while the State of Nevada did not make the submittal addressing the requirements of section 110(a)(2) by the January 7, 2008 timeframe specified in the amended Consent Decree with Earth Justice, the State has subsequently made a submittal to address these requirements on February 1, 2008 and EPA is currently reviewing the submittal for completeness and approvability. Region X: Alaska, Idaho, Oregon, Washington. B. Finding of Failure To Submit Specific Elements of Section 110(a)(2) The following States made submissions that address some, but not all of the section 110(a)(2) requirements, by January 7, 2008. EPA is by this action identifying the specific elements for which States have not made a complete submission: Region I: Massachusetts: The State of Massachusetts has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. Region II: New York: The State of New York has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. New Jersey: The State of New Jersey has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. Puerto Rico: The Commonwealth of Puerto Rico has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. Virgin Islands: The Virgin Islands has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. Region III: Maryland: As required by sections 110(a)(2)(C) and (J), the State of Maryland has failed to submit a SIP addressing changes to its part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NO <sup>X</sup> a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. Pennsylvania: The Commonwealth of Pennsylvania has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program) for only the Allegheny County portion of the Commonwealth. However, this requirement has already been addressed by a FIP (Implementation of the Federal PSD program has been delegated to the Allegheny County Health Department) that remains in place, and therefore this action will not trigger any additional FIP obligation. All other areas of the Commonwealth, exclusive of Allegheny County, has a SIP approved PSD program in place. Virginia: The Commonwealth of Virginia has failed to submit a SIP addressing the part C PSD permit program, which consists of changes required by the November 29, 2005 (70 FR 71612 page 71699) final rule that made NO <sup>X</sup> a precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. Washington, DC: The District of Columbia has failed to submit a SIP addressing sections 110(a)(2)(B),
(C)(the Part C PSD permit program), (E)(i),
(F)(the public availability of reports), (H), and
(J)(with respect to a part C Prevention of Significant Deterioration
(PSD)permit program and to public notification under section 127). 3 The section 110(a)(2)(C) (the Part C PSD permit program) requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation with respect to this requirement. 3 While the District of Columbia did not make the submittal addressing the aforementioned requirements by the January 7, 2008 timeframe called for under the Consent Decree with Earth Justice, the District of Columbia subsequently made a submittal on January 11, 2008 that addresses the requirements related to sections 110(a)(2)(B), (E)(i),
(F)(with respect to the public availability of reports), (H), and
(J)(with respect to public notification under section 127). The EPA is currently reviewing the submittal for completeness. The District of Columbia has not submitted a part C PSD permit program required under sections 110(a)(2)(C) and (J). It should be noted, however, that the District of Columbia is already subject to a FIP for a PSD permit program pursuant to 40 CFR 52.499. West Virginia: The State of West Virginia has failed to make a submittal with respect to sections 110(a)(2)(B), (E)(i),
(G)(with respect to authority comparable to section 303),
(H)and
(J)(relating to public notification under section 127) and (M). The State of West Virginia has also failed to submit a SIP addressing changes to the part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NO <sup>X</sup> a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. Delaware: As required by sections 110(a)(2)(C) and (J), the State of Delaware has failed to submit a SIP addressing changes to its part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NO <sup>X</sup> a precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. Region IV: Florida: The State of Florida has failed to submit a SIP addressing the emergency episode plan requirement of section 110(a)(2)(G). Georgia: The State of Georgia has failed to submit a SIP addressing the emergency episode plan requirements of section 110(a)(2)(G). North Carolina: As required by sections 110(a)(2)(C) and (J), the State of North Carolina has failed to submit a SIP addressing changes to its part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NO <sup>X</sup> a precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. 4 4 The State of North Carolina is currently going through the rulemaking process to approve the requirements to meet this element of section 110(a)(2) and anticipates making the submittal to address the requirement by May 2008. Tennessee: As required by sections 110(a)(2)(C) and (J), the State of Tennessee has failed to submit a SIP addressing changes to its part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NO <sup>X</sup> a precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. 5 5 The State of Tennessee is currently going through the rulemaking process to approve the requirements to meet this element of section 110(a)(2) and anticipates making the submittal to address the requirement by May 2008. Region V: Illinois: The State of Illinois has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. Minnesota: The State of Minnesota has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. Region VI: Arkansas: As required by section 110(a)(2)(C) and (J), the State of Arkansas has failed to submit a SIP addressing changes to the part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NO <sup>X</sup> a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. New Mexico: As required by section 110(a)(2)(C) and (J), the State of New Mexico has failed to submit a SIP addressing changes to the part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NO <sup>X</sup> a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. Oklahoma: As required by section 110(a)(2)(C) and (J), the State of Oklahoma has failed to submit a SIP addressing changes to the part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NO <sup>X</sup> a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. Region IX: California: The State of California has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program) that applies to some Air Districts within the State. However, this requirement has already been addressed for these Air Districts by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. All other areas of the State, exclusive of these Air Districts have an approved PSD program in place. C. List of States That Submitted Complete Submissions to Satisfy the Section 110(a)(2) Requirements The following States have been determined by EPA to have made complete SIP submissions that address all of the section 110(a)(2) requirements by January 7, 2008: Region I: Maine, Rhode Island, Connecticut, and New Hampshire. Region IV: Alabama, Kentucky, Mississippi, and South Carolina. Region V: Indiana, Ohio, Michigan, and Wisconsin. Region VI: Louisiana. Region VII: Iowa, Kansas, Nebraska, and Missouri. Region VIII: Colorado, Montana, South Dakota, Utah, and Wyoming. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget
(OMB)for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* This rule relates to the requirement in the CAA for States to submit SIPs under section 110(a) to satisfy certain infrastructure and general authority-related elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires that States submit SIPs that implement, maintain, and enforce a new or revised NAAQS which satisfies the requirements of section 110(a)(2) within 3 years of promulgation of such standard, or shorter period as EPA may provide. The present final rule does not establish any new information collection requirement apart from that already required by law. Burden means that total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in the CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act
(RFA)The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act
(APA)or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For the purpose of assessing the impacts of this final rule on small entities, small entity is defined as:
(1)A small business that is a small industry entity as defined in the U.S. Small Business Administration
(SBA)size standards ( *See* 13 CFR 121);
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which independently owned and operated is not dominant in its field. After considering the economic impacts of this final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. D. Unfunded Mandates Reform Act of 1995
(UMRA)Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandate” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify, and consider, a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small government on compliance with regulatory requirements. EPA has determined that this action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local and tribal governments, in the aggregate, or the private sector in any 1 year. It does not create any additional requirements beyond those of the 1997 8-hour ozone NAAQS (62 FR 38652; 62 FR 38856, July 18, 1997). This rule responds to the requirement in the CAA for States to submit SIPs under section 110(a) to satisfy certain infrastructure and general authority-related elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires that States submit SIPs that implement, maintain, and enforce a new or revised NAAQS which satisfies the requirements of section 110(a)(2) within 3 years of promulgation of such standard, or shorter period as EPA may provide. The EPA believes that any new controls imposed as a result of this action will not cost in the aggregate $100 million or more annually. Thus, this action is not subject to the requirements of section 202 and 205 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This rule will not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This final rule does not have Tribal implications, as specified in Executive Order 13175. This rule responds to the requirement in the CAA for States to submit SIPs under section 110(a) to satisfy certain elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires that States submit SIPs that provide for implementation, maintenance, and enforcement of a new or revised NAAQS, and which satisfy the applicable requirements of section 110(a)(2), within 3 years of promulgation of such standard, or within shorter period as EPA may provide. The CAA provides for States and Tribes to develop plans to regulate emissions of air pollutants within their jurisdictions. The regulations clarify the statutory obligations of States and Tribes that develop plans to implement this rule. The Tribal Authority Rule
(TAR)gives Tribes the opportunity to develop and implement CAA programs, but it leaves to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, the Tribe will adopt. This rule does not have Tribal implications as defined by Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, because no Tribe has implemented an air quality management program related to the 1997 8-hour ozone NAAQS. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it is making findings concerning whether or not each State has submitted a complete SIP that provides the basic program elements specified in CAA section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. The findings of failure to submit for all or a portion of a State's SIP establish a 24-month deadline for EPA to promulgate FIPs to address the outstanding SIP elements unless, prior to that time, the affected States submit, and EPA approves, the required SIPs. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. At the time of proposal of the implementation rule for the 1997 8-hour ozone standard, information on the methodology and data regarding the assessment of potential energy impacts regarding implementation of the 1997 8-hour standard was addressed in Chapter 6 of U.S. EPA 2003, Cost, Emission Reduction, Energy, and Economic Impact Assessment of the Proposed Rule Establishing the Implementation Framework for the 1997 8-Hour, 0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the Innovative Strategies and Economics Group, Office of Air Quality Planning and Standards, Research Triangle Park, NC, April 24, 2003. Subsequently, EPA issued an Addendum 1 to that analysis for the Phase 1 final rule (April 30, 2004 (69 FR 33951)) and designated nonattainment areas. By adopting the more flexible approaches while providing for attainment and maintenance of the 8-hour NAAQS as required by the CAA for the areas covered by this rulemaking, additional energy cost associated with more extensive use of less flexible approaches would be averted. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order
(EO)12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not directly affect the level of protection provided to human health or the environment. This notice is making a finding concerning whether each State has submitted or failed to submit a complete SIP that provides the basic program elements of section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A Major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective April 28, 2008. L. Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit Court within 60 days from the date final action is published in the **Federal Register** . Filing a petition for review by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such rule or action. Thus, any petitions for review of this action related to a finding of failure to submit related to the requirements of section 110(a) to satisfy certain elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the **Federal Register** . List of Subjects in 40 CFR Part 52 Approval and promulgation of implementation plans, Environmental protection, Administrative practice and procedures, Air pollution control, Intergovernmental relations, and Reporting and recordkeeping requirements. Dated: March 17, 2008. Robert J. Meyers, Principal Deputy Assistant Administrator. [FR Doc. E8-6176 Filed 3-26-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 071106673-8011-02] RIN 0648-XG65 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by American Fisheries Act Catcher Processors Using Trawl Gear in the Bering Sea and Aleutian Islands Management Area AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY: NMFS is prohibiting directed fishing for Pacific cod by American Fisheries Act
(AFA)trawl catcher processors in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the A season allowance of the 2008 Pacific cod total allowable catch
(TAC)specified for AFA trawl catcher processors in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), March 24, 2008, though 1200 hrs, A.l.t., April 1, 2008. 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. The A season allowance of the 2008 Pacific cod TAC allocated to AFA trawl catcher processors in the BSAI is 2,630 metric tons
(mt)as established by the 2008 and 2009 final harvest specifications for groundfish in the BSAI (73 FR 10160, February 26, 2008). See § 679.20(c)(3)(iii), § 679.20(c)(5), § 679.20(a)(7)(ii)(A)( *7* ), and § 679.20(a)(7)(iv)(A)( *1* )( *ii* ). In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the A season allowance of the 2008 Pacific cod TAC allocated to AFA trawl catcher processors in the BSAI has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by AFA trawl catcher processors in the BSAI. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and
(f)apply at any time during a trip. 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 closure of Pacific cod by AFA trawl catcher processors in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 21, 2008. 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. This action is required by § 679.20 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: March 24, 2008. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08-1079 Filed 3-24-08; 3:51 pm]
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U.S. Code
17 references not yet in our index
  • 9 CFR 94
  • 15 USC 78
  • 17 CFR 240.19
  • 17 CFR 240.17
  • 5 USC 522
  • 37 CFR 384
  • Pub. L. 104-39
  • Pub. L. 105-304
  • 37 CFR 262
  • Pub. L. 108-419
  • 40 CFR 52
  • Pub. L. 104-4
  • 40 CFR 9
  • 13 CFR 121
  • Pub. L. 104-113
  • 50 CFR 679
  • 50 CFR 600
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Cite15 USC 78
Cite17 CFR 240.19
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