Unknown. Final rule

73,045 words·~332 min read·/register/2008/06/02/08-1314

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-2008-06-02.xml --- 73 106 Monday, June 2, 2008 Contents Agricultural Agricultural Marketing Service NOTICES Meetings: Advisory Committee on Universal Standards, 31425 E8-12221 Fruit and Vegetable Industry Advisory Committee, 31425-31426 E8-12228 Proposed United States Standards for Grades of Olive Oil and Olive-Pomace Oil, 31426-31427 E8-12226 Sorghum Promotion, Research, and Information: Certification of Organizations for Eligibility to Make Nominations to the Sorghum Promotion, Research, and Information Board, 31427-31428 E8-12220 Agriculture Agriculture Department See Agricultural Marketing Service See Forest Service See Grain Inspection, Packers and Stockyards Administration Air Force Air Force Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 31439-31440 E8-12182 Army Army Department NOTICES Meetings: Board of Visitors, Defense Language Institute Foreign Language Center— Subcommittee of the Army Education Advisory Committee, 31440 E8-12109 Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Census Census Bureau RULES Foreign Trade Regulations: Mandatory Automated Export System Filing for all Shipments Requiring Shipper's Export Declaration Information, 31548-31590 E8-12133 Centers Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 31488-31490 E8-12191 E8-12192 Delegation of Authority: Director, National Center for Preparedness, Detection and Control of Infectious Diseases et al., 31490 E8-12176 Meetings: Advisory Committee on Immunization Practices, 31490 E8-12234 Coast Guard Coast Guard RULES Safety Zone; Piscataqua River, Portsmouth, NH, and Kittery, ME; Frontier Sentinel (2008), 31363-31366 E8-12175 Special Local Regulations for Marine Events: Pasquotank River, Elizabeth City, NC, 31360-31363 E8-12154 PROPOSED RULES Regulated Navigation Area:

Gasco Area, Willamette River, Portland, OR, 31397-31399 E8-12149 Special Local Regulations for Marine Events; Patapsco River, Inner Harbor, Baltimore, MD, 31394-31397 E8-12151 Commerce Commerce Department See Census Bureau See Foreign-Trade Zones Board See International Trade Administration See National Oceanic and Atmospheric Administration Copyright Copyright Office, Library of Congress PROPOSED RULES Retransmission of Digital Broadcast Signals Pursuant to the Cable Statutory License, 31399-31415 E8-11855 Defense Defense Department See Air Force Department See Army Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 31436-31439 E8-12171 E8-12185 E8-12187 Drug Drug Enforcement Administration NOTICES Importer Of Controlled Substances; Registration: Kenco VPI, 31510 E8-12190 Importer Of Controlled Substances Registration: Lipomed, Inc., 31509-31510 E8-12189 Education Education Department PROPOSED RULES Impact Aid Programs, 31592-31604 E8-12233 NOTICES Arbitration Panel Decision Under the Randolph-Sheppard Act, 31440-31442 E8-12262 Technology and Media Services for Individuals with Disabilities;

Family Center on Technology and Disability, 31442-31448 E8-12263 Energy Energy Department See Federal Energy Regulatory Commission See Western Area Power Administration NOTICES Meetings: Environmental Management Site-Specific Advisory Board, Oak Ridge Reservation, 31448 E8-12254 Nuclear Energy Advisory Committee, 31448 E8-12260 EPA Environmental Protection Agency RULES Approval and Promulgation of Air Quality Implementation Plans: Minnesota; Interstate Transport of Pollution, 31366-31368 E8-12222 Approval and Promulgation of Implementation Plans:

South Carolina; Prevention of Significant Deterioration and Nonattainment New Source Review Rules, 31368-31372 E8-12091 Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry, etc., E8-11383 31372-31380 E8-11400 Petroleum Refineries PROPOSED RULES Approval and Promulgation of Air Quality Implementation Plans: Minnesota; Interstate Transport of Pollution, 31415-31416 E8-12223 Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry and Petroleum Refineries, 31416-31418 E8-11384 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 31476-31479 E8-12265 E8-12268 Meetings: Good Neighbor Environmental Board, 31479 E8-12267 National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances, 31480 E8-12266 FAA Federal Aviation Administration RULES Airworthiness Directives: Air Tractor, Inc. AT-200, AT-300, AT-400, AT-500, AT-600, and AT-800 Series Airplanes, 31351-31353 E8-11944 Cirrus Design Corporation Model SR20 Airplanes, 31353-31354 E8-12047 Stemme GmbH & Co.

KG Model S10-VT Powered Sailplanes, 31355-31357 E8-12115 NOTICES Release of Airport Property: Billings Logan International Airport, Billings MT, 31534-31535 E8-12027 FCC Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31480-31484 E8-12107 E8-12123 Federal Emergency Federal Emergency Management Agency NOTICES Meetings: National Advisory Council Teleconference, 31496-31497 E8-12164 Federal Energy Federal Energy Regulatory Commission NOTICES Application:

Puget Sound Energy, Inc., 31449-31450 E8-12141 White River Hub, LLC, 31450-31451 E8-12135 Application for Amendment of License and Solociting Comments, Motions to Intervene, and Protests: Erie Boulevard Hydropower, L.P., 31448-31449 E8-12213 Applications: MARMC Enterprises, LLC, 31451-31452 E8-12200 Complaints: Michigan South Central Power Agency, 31452 E8-12204 Sacramento Municipal Utility District, 31452-31453 E8-12201 Filing: Sachin J. Mehra, 31453 E8-12138 Southwest Power Pool, Inc., 31453 E8-12134 Vernon, CA, 31453-31454 E8-12208 Filings:

Wagoner, Gregory E., 31454 E8-12202 Institution of Proceeding and Refund Effective Date: PJM Interconnection, L.L.C., 31454 E8-12214 Intent to Prepare An Environmental Assessment: Dominion Transmission, Inc., 31454-31457 E8-12140 Intent to Prepare an Environmental Impact Statement: Nevada Irrigation District, 31457-31458 E8-12139 Issuance of Order: Affordable Power, L.P., 31459 E8-12212 Champion Energy Marketing LLC, 31459 E8-12211 Crafton LLC, 31460 E8-12210 Petition for Rate Approval:

Worsham-Steed Gas Storage, L.P., 31460 E8-12207 Revocation of Market-Based Rate Tariffs: Electric Quarterly Reports et al., 31460-31461 E8-12209 Setting Forth Timeline: PJM RTO Filers, 31461-31463 E8-12137 Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization, 31463 E8-12136 Federal Highway Federal Highway Administration NOTICES Supplemental Environmental Impact Statement: Travis County, TX, 31535-31536 E8-12146 Surface Transportation Project Delivery Pilot Program;

Caltrans Audit Report, 31536-31540 E8-12183 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 31484 E8-12216 Proposals to Engage in Permissible Nonbanking Activities or to Acquire Companies that are Engaged in Permissible Nonbanking Activities, 31484 E8-12215 Federal Transit Federal Transit Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31540-31541 E8-11705 Project Selections for FY 2008 Bus and Bus Facilities Discretionary Program Funds, 31541-31543 E8-12241 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: 90-Day Finding on a Petition to List the Cactus Ferruginous Pygmy-Owl as Threatened or Endangered With Critical Habitat, 31418-31424 E8-12168 NOTICES Sporting Conservation Council, 31501-31502 E8-12203 Food Food and Drug Administration RULES Implantation or Injectable Dosage Form New Animal Drugs;

Butorphanol, 31357-31358 E8-12160 Medical Devices; Hearing Aids; Technical Data Amendments, 31358-31360 E8-11910 PROPOSED RULES Medical Devices; Hearing Aids; Technical Data Amendments, 31390-31392 E8-11909 NOTICES Food Safety Research; Investigations Focused on Promoting the Safety of Produce, 31490-31492 E8-12159 Guidance for Industry on Indexing Structured Product Labeling; Availability, 31492-31493 E8-12158 Foreign Foreign Assets Control Office NOTICES Additional Designation of Individuals Pursuant to Executive Order, 31544-31545 E8-12288 MISSING FOR:

Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES Application for Expansion; Amendment of Application: Lakewood, NJ, 31432-31433 E8-12256 Application for Expansion of Manufacturing Authority: Hyundai Motor Manufacturing Alabama, LLC, 31432 E8-12255 Forest Forest Service NOTICES Meetings: Pacific Southwest Recreation Resource Advisory Committee, 31428-31429 E8-12178 Revision of Land Management Plan: Lake Tahoe Basin Management Unit, California and Nevada, 31429 E8-12184 GSA General Services Administration NOTICES Privacy Act;

Systems of Records, 31484-31486 E8-11822 GAO Government Accountability Office NOTICES Appointments to the Medicare Payment Advisory Commission, 31486 E8-12023 GIPSA Grain Inspection, Packers and Stockyards Administration NOTICES Designations: Georgia, Montana, and Cedar Rapids, IA Areas, 31430 E8-12236 Opportunity for Designation: Alabama, Essex, IL, Springfield, IL, Savage, MN, and Washington Areas, 31431-31432 E8-12194 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health See Substance Abuse and Mental Health Services Administration PROPOSED RULES Designation of Medically Underserved Populations and Health Professional Shortage Areas, 31418 08-1314 NOTICES Statement of Organization, Functions and Delegations of Authority:

Office of Resources and Technology, 31486-31487 E8-12025 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency See U.S. Citizenship and Immigration Services See U.S. Immigration and Customs Enforcement Interior Interior Department See Fish and Wildlife Service See Minerals Management Service See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service NOTICES Tax Counseling for the Elderly

(TCE)Program Availability of Application Packages, 31545 E8-12051 International International Trade Administration NOTICES Correction of Extension of Time Limits for the Final Results of Antidumping Duty New Shipper Review: Corrosion-Resistant Carbon Steel Flat Products from Korea, 31433 E8-12259 Extension of Time Limit for the Final Results of Antidumping Duty Administrative Review: Polyester Staple Fiber from Taiwan, 31433 E8-12257 President's Export Council, 31434 E8-12165 Rescission of Antidumping Duty Administrative Review: Heavy Forged Hand Tools, With Or Without Handles from the People's Republic of China, 31434 E8-12258 International International Trade Commission NOTICES Investigation: Saccharin from China, 31504-31506 E8-11527 Investigations: Polyvinyl Alcohol from China, Japan, and Korea, 31507-31509 E8-11528 Justice Justice Department See Drug Enforcement Administration NOTICES Lodging of Four Consent Decrees: Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 31509 E8-12112 Labor Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31510-31511 E8-12142 Library Library of Congress See Copyright Office, Library of Congress Minerals Minerals Management Service NOTICES Annual Price Threshold Determination, 31502-31504 E8-12225 National Foundation National Foundation on the Arts and the Humanities NOTICES Privacy Act; Systems of Records, 31511-31514 E8-11974 NIH National Institutes of Health NOTICES Meetings: Center for Scientific Review, 31493-31495 E8-11790 NOAA National Oceanic and Atmospheric Administration RULES International Fisheries; Atlantic Highly Migratory Species; International Trade Permit Program; Bluefin Tuna Catch Documentation Program, 31380-31389 E8-12232 NOTICES Atlantic Coastal Fisheries Cooperative Management Act Provisions: Application for Exempted Fishing Permit; Horseshoe Crabs, 31434-31435 E8-12261 Marine Mammals; Receipt of Application for Amendment, 31436 E8-12231 Nuclear Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31514-31515 E8-12172 E8-12174 Meetings: Advisory Committee on the Medical Uses of Isotopes, 31515-31516 E8-12170 Virginia Electric And Power Company and Old Dominion Electric Cooperative: Hearing And Opportunity To Petition For Leave To Intervene On A Combined License For North Anna Unit 3; Correction, 31516 E8-12179 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: International Standards on the Transport of Dangerous Goods, 31543 E8-12060 Railroad Railroad Retirement Board NOTICES Privacy Act of 1974; Computer Matching Program, 31516-31517 E8-12186 SEC Securities and Exchange Commission NOTICES Public Company Accounting Oversight Board: Filing and Immediate Effectiveness of Proposed Rule Change Delaying Implementation Schedule of Rule, 31517-31518 E8-12162 Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc, 31518-31523 E8-12161 NASDAQ Stock Market LLC, 31523-31526 E8-12196 E8-12197 New York Stock Exchange LLC, 31526-31528 E8-12205 Philadelphia Stock Exchange, Inc., 31528-31530 E8-12195 E8-12206 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31530-31531 E8-12113 Privacy Act of 1974; Computer Matching Program, 31531-31532 E8-12250 Special Special Counsel Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31532-31533 E8-12167 State State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31533 E8-12247 Culturally Significant Objects Imported for Exhibition Determinations: Power and Glory: Court Arts of China's Ming Dynasty, 31533 E8-12248 The Tsar and the President: Alexander II and Abraham Lincoln, 31533-31534 E8-12252 Meetings: Overseas Schools Advisory Council, 31534 E8-12251 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31495-31496 E8-12177 Surface Surface Mining Reclamation and Enforcement Office PROPOSED RULES Wyoming Abandoned Mine Land Reclamation Plan, 31392-31394 E8-12199 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Transit Administration See Pipeline and Hazardous Materials Safety Administration Treasury Treasury Department See Foreign Assets Control Office See Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31543-31544 E8-12163 MISSING FOR: U.S.-China Economic and Security Review Commission U.S.-China Economic and Security Review Commission NOTICES Meetings: Open Public Hearings - June 18th and 19th, 2008, Washington, DC, 31545-31546 E8-12152 MISSING FOR: U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31497-31499 E8-12166 E8-12218 E8-12219 Immigration U.S. Immigration and Customs Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31499-31501 E8-12227 E8-12229 E8-12230 Western Western Area Power Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 31463-31476 E8-12246 Separate Parts In This Issue Part II Commerce Department, Census Bureau, 31548-31590 E8-12133 Part III Education Department, 31592-31604 E8-12233 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. 73 106 Monday, June 2, 2008 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0247; Directorate Identifier 2008-CE-003-AD; Amendment 39-15540; AD 2008-11-17] RIN 2120-AA64 Airworthiness Directives; Air Tractor, Inc. AT-200, AT-300, AT-400, AT-500, AT-600, and AT-800 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive

(AD)to supersede AD 2002-25-09, which applies to certain Air Tractor, Inc. (Air Tractor) AT-250, AT-300, AT-400, and AT-500 series airplanes. AD 2002-25-09 currently requires you to install an overturn skid plate in the cockpit area. Since we issued AD 2002-25-09, we received a report of the bolts attaching the forward end of the original design overturn skid plate to the airframe breaking in an overturn accident. This allowed the skid plate to rotate around the rear attach point and the forward end of the plate to enter the cockpit area. Consequently, this AD would require the installation of a modified skid plate kit or modification to skid plate kits that are already installed, including those already installed on AT-402B, AT-502B, AT-602, and AT-802A series airplanes during production. We are issuing this AD to prevent the front and rear connections of the overturn skid plate to the airplane from breaking, which could allow foreign debris to enter the cockpit during an airplane overturn. This condition, if not corrected, could lead to pilot injury. DATES: This AD becomes effective on July 7, 2008. On July 7, 2008, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD. ADDRESSES: For service information identified in this AD, contact Air Tractor Inc., P.O. Box 485, Olney, Texas 76374; telephone:

(940)564-5616; fax:

(940)564-5612. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov.* The docket number is FAA-2008-0247; Directorate Identifier 2008-CE-003-AD. FOR FURTHER INFORMATION CONTACT: Andy McAnaul, Aerospace Engineer, ASW-150, FAA San Antonio MIDO-43, 10100 Reunion Place, Suite 650, San Antonio, Texas 78216, phone:

(210)308-3365, fax:

(210)308-3370. SUPPLEMENTARY INFORMATION: Discussion On February 26, 2008, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Air Tractor, Inc. AT-200, 300, 400, 500, 600, and 800 series airplanes. This proposal was published in the **Federal Register** as a notice of proposed rulemaking

(NPRM)on March 3, 2008 (73 FR 11369). The NPRM proposed to supersede AD 2002-25-09, which required the installation of an overturn skid plate (part number (P/N) 11411-1-500 or an FAA-approved equivalent P/N) in some production models including Models AT-402B, AT-502B, AT-602, and AT-802A airplanes. Since we issued AD 2002-25-09, we received a report of the bolts breaking in an overturn accident where they attach the forward end of the original design overturn skid plate to the airframe. This allowed the skid plate to rotate around the rear attach point and the forward end of the plate to enter the cockpit area. We are issuing this AD to prevent the front and rear connections of the overturn skid plate to the airplane from breaking, which could allow foreign debris to enter the cockpit during an airplane overturn. This condition, if not corrected, could lead to pilot injury. Comments We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections: • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and • Do not add any additional burden upon the public than was already proposed in the NPRM. Costs of Compliance We estimate that this AD affects 2,026 airplanes in the U.S. registry. In determining the total cost on U.S. operators, we presume that all airplanes in the U.S. fleet have a skid plate installed (as required by AD 2002-25-09), and the only cost is to incorporate the modification kit P/N 11411-1-501. We estimate the following costs to do the modification of installing the overturn skid plate modification kit P/N 11411-1-501 to those planes that currently have the overturn skid plate installed: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 2 work-hours × $80 per hour = $160 $42 $202 $409,252 This AD includes a requirement for those few, if any, airplanes that have not operated past the compliance time of AD 2002-25-09. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2008-0247; Directorate Identifier 2008-CE-003-AD” in your request. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Airworthiness Directive

(AD)2002-25-09, Amendment 39-12985 (67 FR 78156, December 23, 2002), and adding the following new AD: **2008-11-17 Air Tractor, Inc.:** Amendment 39-15540; Docket No. FAA-2008-0247; Directorate Identifier 2008-CE-003-AD. Effective Date

(a)This AD becomes effective on July 7, 2008. Affected ADs

(b)This AD supersedes AD 2002-25-09, Amendment 39-12985. Applicability

(c)This AD applies to the following airplane models and serial numbers that are certificated in any category: Models Serial Nos. AT-250, AT-300, AT-301, AT-302, AT-400, AT-400A, AT-401, AT-401A, AT-402, AT-402A, and AT-402B -0001 through -1196. AT-501, AT-502, AT-502A, and AT-502B -0001 through -2620. AT-602 -0337 through -1153. AT-802A -0003 through -0282. Unsafe Condition

(d)Since we issued AD 2002-25-09, we received a report of the bolts that attach the forward end of the original design overturn skid plate to the airframe breaking in an overturn accident. This allowed the skid plate to rotate around the rear attach point and the forward end of the plate to enter the cockpit area. We are issuing this AD to prevent the front and rear connections of the overturn skid plate to the airplane from breaking, which could allow foreign debris to enter the cockpit during an airplane overturn. This condition, if not corrected, could lead to pilot injury. Compliance

(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures

(1)If overturn skid plate kit part number (P/N) 11411-1-500 or an FAA-approved equivalent P/N is already installed, then install P/N 11411-1-501 modification kit Within the next 180 days after July 7, 2008 (the effective date of this AD) Follow Snow Engineering Co. Service Letter #97, revised November 7, 2007.

(2)If there is no overturn skid plate installed, then install overturn skid plate kit P/N 11411-1-502 or an FAA-approved equivalent part number Within the next 180 days July 7, 2008 (the effective date of this AD) Follow Snow Engineering Co. Service Letter #97, revised November 7, 2007. Alternative Methods of Compliance (AMOCs)

(f)The Manager, Fort Worth Airplane Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Andy McAnaul, Aerospace Engineer, ASW-150, FAA San Antonio MIDO-43, 10100 Reunion Place, Suite 650, San Antonio, Texas 78216, phone:

(210)308-3365; fax:

(210)308-3370. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Material Incorporated by Reference

(g)You must use Snow Engineering Co. Service Letter #97, revised November 7, 2007, to do the actions required by this AD, unless the AD specifies otherwise.

(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.

(2)For service information identified in this AD, contact Air Tractor Inc., P.O. Box 485, Olney, Texas 76374; telephone:

(940)564-5616; fax:

(940)564-5612.

(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . Issued in Kansas City, Missouri, on May 20, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-11944 Filed 5-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0284; Directorate Identifier 2008-CE-006-AD; Amendment 39-15541; AD 2008-11-18] RIN 2120-AA64 Airworthiness Directives; Cirrus Design Corporation Model SR20 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive

(AD)for certain Cirrus Design Corporation

(CDC)Model SR20 airplanes. This AD requires you to perform an inspection and replacement as necessary of the heat exchanger. This AD results from the discovery of engine exhaust fumes in the cabin of CDC Model SR20 airplanes. We are issuing this AD to detect and correct leaks in the exhaust system, which could result in exhaust gases leaking into the cabin heating system. This condition could lead to carbon monoxide in the cabin and incapacitation of the pilot. DATES: This AD becomes effective on July 7, 2008. On July 7, 2008, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD. ADDRESSES: For service information identified in this AD, contact Cirrus Design Corporation, 4515 Taylor Circle, Duluth, Minnesota 55811, telephone:

(218)788-3000. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov.* The docket number is FAA-2008-0284; Directorate Identifier 2008-CE-006-AD. FOR FURTHER INFORMATION CONTACT: Michael Downs, Aerospace Engineer, Chicago ACO, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; telephone:

(847)294-7870; fax:

(847)294-7834. SUPPLEMENTARY INFORMATION: Discussion On March 4, 2008, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to SR20 airplanes. This proposal was published in the **Federal Register** as a notice of proposed rulemaking

(NPRM)on March 12, 2008 (73 FR 13157). The NPRM proposed to require an inspection and replacement as necessary of the heat exchanger. This AD results from the discovery of engine exhaust fumes in the cabin of CDC Model SR20 airplanes. We are issuing this AD to detect and correct leaks in the exhaust system, which could result in exhaust gases leaking into the cabin heating system. This condition could lead to carbon monoxide in the cabin and incapacitation of the pilot. Comments We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections: • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and • Do not add any additional burden upon the public than was already proposed in the NPRM. Costs of Compliance We estimate that this AD affects 713 airplanes in the U.S. registry. We estimate the following costs to do the inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 1 work-hour × $80 per hour = $80 $0 $80 $57,040 We estimate the following costs to do any necessary replacement that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this replacement: Labor cost Parts cost Total cost per airplane 1 work-hour × $80 per hour = $80 $848 $928 Warranty credit will be given to the extent specified in Cirrus Service Bulletin SB 2X-78-07 R1, Revision 1, dated December 18, 2007. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2008-0284; Directorate Identifier 2008-CE-006-AD” in your request. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. FAA amends § 39.13 by adding the following new AD: **2008-11-18 Cirrus Design Corporation:** Amendment 39-15541; Docket No. FAA-2008-0284; Directorate Identifier 2008-CE-006-AD. Effective Date

(a)This AD becomes effective on July 7, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Model SR20 airplanes, serial numbers 1005 through 1815, that are certificated in any category. Unsafe Condition

(d)This AD results from the discovery of engine exhaust fumes in the cabin of Cirrus Design Corporation Model SR20 airplanes. We are issuing this AD to detect and correct leaks in the exhaust system, which could result in exhaust gases leaking into the cabin heating system. This condition could lead to carbon monoxide in the cabin and incapacitation of the pilot. Compliance

(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures

(1)Perform a pressurization inspection/check on the exhaust system Initially within the next 25 hours time-in-service

(TIS)after July 7, 2008 (the effective date of this AD) or within the next 3 months after July 7, 2008 (the effective date of this AD), whichever occurs first. Repetitively thereafter at intervals not to exceed every 100 hours TIS Follow Cirrus Service Bulletin SB 2X-78-07 R1, Revision 1, dated December 18, 2007.

(2)If the exhaust system is found defective during any inspection/check required in paragraph (e)(1) of this AD or an exhaust odor is detected inside the airplane cabin, replace the heat exchanger weldment and shroud with new improved heat exchanger weldment and new shroud Before further flight after the inspection/check in which the exhaust system is found defective or an exhaust odor is detected Follow Cirrus Service Bulletin SB 2X-78-07 R1, Revision 1, dated December 18, 2007. Note: The replacement of the heat exchanger weldment and shroud may be done instead of the initial inspection but does not eliminate the 100-hour repetitive inspection. Alternative Methods of Compliance (AMOCs)

(f)The Manager, Chicago Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Michael Downs, Aerospace Engineer, Chicago ACO, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; telephone:

(847)294-7870; fax:

(847)294-7834. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Material Incorporated by Reference

(g)You must use Cirrus Service Bulletin SB 2X-78-07 R1, Revision 1, dated December 18, 2007, to do the actions required by this AD, unless the AD specifies otherwise.

(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.

(2)For service information identified in this AD, contact Cirrus Design Corporation, 4515 Taylor Circle, Duluth, Minnesota 55811, telephone:

(218)788-3000.

(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . Issued in Kansas City, Missouri, on May 22, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-12047 Filed 5-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0598; Directorate Identifier 2008-CE-031-AD; Amendment 39-15543; AD 2008-11-20] RIN 2120-AA64 Airworthiness Directives; Stemme GmbH & Co. KG Model S10-VT Powered Sailplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; request for comments. SUMMARY: We are adopting a new airworthiness directive

(AD)for the products listed above that will supersede an existing AD. This AD results from mandatory continuing airworthiness information

(MCAI)issued by the aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: AD 2007-0315-E was issued to address a possible fuel leakage in the gear compartment in front of the engine and mandated inspections and replacement of fuel plastic-made connectors by connectors made of metal. Since its publication, another fuel leakage has been reported on a S10-VT which had implemented the STEMME Service Bulletin

(SB)A31-10-082 as required by AD 2007-0315-E. It has been determined that the fuel leak may have been caused by the deformation that the originally installed clamps created on the fuel hoses and thus preventing the new clamps from being sufficiently pinched to perform a correct tightening. This AD requires actions that are intended to address the unsafe condition described in the MCAI. DATES: This AD becomes effective June 23, 2008. On June 23, 2008, the Director of the Federal Register approved the incorporation by reference of STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008, listed in this AD. As of February 20, 2008 (73 FR 5733, January 31, 2008), the Director of the Federal Register approved the incorporation by reference of STEMME F & D Service Bulletin A31-10-082, AM.-Index: 01.a, dated November 30, 2007, listed in this AD. We must receive comments on this AD by July 2, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4130; fax:

(816)329-4090. SUPPLEMENTARY INFORMATION: Discussion On January 24, 2008, we issued AD 2008-03-06, Amendment 39-15355 (73 FR 5733, January 31, 2008). That AD required actions intended to address an unsafe condition on the products listed above. Since we issued AD 2008-03-06, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued Emergency AD No. 2008-0053-E, dated March 5, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: AD 2007-0315-E was issued to address a possible fuel leakage in the gear compartment in front of the engine and mandated inspections and replacement of fuel plastic-made connectors by connectors made of metal. Since its publication, another fuel leakage has been reported on a S10-VT which had implemented the STEMME Service Bulletin

(AD)supersedes AD 2007-0315-E and requires you to check the fuel system according to the STEMME SB A31-10-083 as well as to replace single-ear clamps and plastic connectors. The actions specified by this AD are intended to reduce the potential for a fire to ignite and which could lead to loss of control of the sailplane. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information STEMME F & D has issued Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This AD is considered an interim action because we are not including a mandatory requirement to replace STEMME part number (P/N) M476 single-ear clamps in the fuel system with P/N 10M-181 single-ear clamps on all affected sailplanes unless a leak in the fuel system is found. The Administrative Procedure Act does not permit the FAA to “bootstrap” a long-term requirement into an urgent safety of flight action where the rule becomes effective at the same time the public has the opportunity to comment. The short-term action and the long-term action are analyzed separately for justification to bypass prior public notice. After issuing this AD, we may initiate further AD action (notice of proposed rulemaking followed by a final rule) to require replacing all P/N M476 single-ear clamps in the fuel system with P/N 10M-181 single-ear clamps on all affected sailplanes by a specified time. Credit will be given in any subsequent action for the replacement done under this AD. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might have also required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements take precedence over those copied from the MCAI. FAA's Determination of the Effective Date An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because a leak in the area of the fuel line was found, which could result in the possibility of fuel leaking into the engine compartment. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days. Comments Invited This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0598; Directorate Identifier 2008-CE-031-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:

(1)Is not a “significant regulatory action” under Executive Order 12866;

(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-15355 (73 FR 5733, January 31, 2008), and adding the following new AD: **2008-11-20 Stemme GmbH & Co. KG:** Amendment 39-15543; Docket No. FAA-2008-0598; Directorate Identifier 2008-CE-031-AD. Effective Date

(a)This airworthiness directive

(AD)becomes effective June 23, 2008. Affected ADs

(b)This AD supersedes AD 2008-03-06; Amendment 39-15355. Applicability

(c)This AD applies to Model S10-VT powered sailplanes, serial numbers 11-001 through 11-112, certificated in any category. Subject

(d)Air Transport Association of America

(ATA)Code 28: Fuel. Reason

(e)The mandatory continuing airworthiness information

(MCAI)states: AD 2007-0315-E was issued to address a possible fuel leakage in the gear compartment in front of the engine and mandated inspections and replacement of fuel plastic-made connectors by connectors made of metal. Since its publication, another fuel leakage has been reported on a S10-VT which had implemented the STEMME Service Bulletin

(f)Unless already done, do the following actions:

(1)*For all sailplanes affected by this AD, except for serial numbers 11-036, 11-067, 11-068, and 11-090:* Before further flight after March 21, 2008 (the compliance date retained from AD 2008-03-06), replace all plastic T- and Y-connectors in the fuel system with metal connectors. Do the replacements following STEMME F & D Service Bulletin A31-10-082, AM.—Index: 01.a, dated November 30, 2007. Note: Serial numbers 11-036, 11-067, 11-068, and 11-090 had the plastic T- and Y-connectors in the fuel system replaced with metal connectors by the manufacturer.

(2)*For all sailplanes affected by this AD:* Before further flight after June 23, 2008 (the effective date of this AD), inspect the fuel system for possible leakage. Do the inspection following STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008.

(3)*For all sailplanes affected by this AD:* If any leak is found during the inspection required in paragraph (f)(2) of this AD, before further flight, repair the leak following an FAA-approved repair procedure and replace all STEMME part number (P/N) M476 single-ear clamps in the fuel system with P/N 10M-181 single-ear clamps. Do the replacements following STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008.

(4)After June 23, 2008 (the effective date of this AD), do not install plastic “T” and “Y” shape connectors and P/N M476 single-ear clamps in the fuel system. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows:

(1)The MCAI and the service information require replacing all P/N M476 single-ear clamps in the fuel system with P/N 10M-181 single-ear clamps within the next 12 months after the effective date.

(2)This AD is considered an interim action because we are not including a mandatory requirement to replace all STEMME P/N M476 single-ear clamps in the fuel system with P/N 10M-181 single-ear clamps on all affected sailplanes unless a leak in the fuel system is found. The Administrative Procedure Act does not permit the FAA to “bootstrap” a long-term requirement into an urgent safety of flight action where the rule becomes effective at the same time the public has the opportunity to comment. The short-term action and the long-term action are analyzed separately for justification to bypass prior public notice.

(3)After issuing this AD, we may initiate further AD action (notice of proposed rulemaking followed by a final rule) to require replacing all P/N M476 single-ear clamps in the fuel system with P/N 10M-181 single-ear clamps on all affected sailplanes by a specified time. Credit will be given in any subsequent action for the replacement done under this AD. Other FAA AD Provisions

(g)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:

(816)329-4130; fax:

(816)329-409. Before using any approved AMOC on any sailplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(h)Refer to MCAI European Aviation Safety Agency

(EASA)Emergency AD No. 2008-0053-E, dated March 5, 2008; STEMME F & D Service Bulletin A31-10-082, AM.-Index: 01.a, dated November 30, 2007; and STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008, for related information. Material Incorporated by Reference

(i)You must use STEMME F & D Service Bulletin A31-10-082, AM.-Index: 01.a, dated November 30, 2007, and STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008, to do the actions required by this AD, unless the AD specifies otherwise.

(1)The Director of the Federal Register approved the incorporation by reference of STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008, under 5 U.S.C. 552(a) and 1 CFR part 51.

(2)On February 20, 2008 (73 FR 5733, January 31, 2008), the Director of the Federal Register previously approved the incorporation by reference of STEMME F & D Service Bulletin A31-10-082, AM.-Index: 01.a, dated November 30, 2007.

(3)For service information identified in this AD, contact STEMME GmbH & Co. KG, Flugplatzstraβe F 2, Nr. 7, 15344 Strausberg, Federal Republic of Germany.

(4)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Kansas City, Missouri on May 23, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-12115 Filed 5-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 522 Implantation or Injectable Dosage Form New Animal Drugs; Butorphanol AGENCY: Food and Drug Administration, HHS. ACTION: Final rule; technical amendment. SUMMARY: The Food and Drug Administration

(FDA)is amending the animal drug regulations to reflect approval of an abbreviated new animal drug application (ANADA) filed by Lloyd, Inc. The ANADA provides for the veterinary prescription use of butorphanol tartrate injectable solution in horses for the relief of pain. DATES: This rule is effective June 2, 2008. FOR FURTHER INFORMATION CONTACT: John K. Harshman, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8197, e-mail: *john.harshman@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Lloyd, Inc., 604 West Thomas Ave., Shenandoah, IA 51601, filed ANADA 200-332 that provides for the veterinary prescription use of BUTORPHIC (butorphanol tartrate) Injection in horses for the relief of pain associated with colic and postpartum pain. Lloyd, Inc.'s BUTORPHIC Injection is approved as a generic copy of TORBUGESIC, sponsored by Fort Dodge Animal Health, Division of Wyeth, under NADA 135-780. The ANADA is approved as of May 1, 2008, and 21 CFR 522.246 is amended to reflect the approval. In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 522 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 522 is amended as follows: PART 522—IMPLANTATION OR INJECTABLE DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 522 continues to read as follows: Authority: 21 U.S.C. 360b. § 522.246 [Amended] 2. In paragraph (b)(3) of § 522.246, remove “057926 and 059130” and in its place add “057926, 059130, and 061690”. Dated: May 21, 2008. Bernadette Dunham, Director, Center for Veterinary Medicine. [FR Doc. E8-12160 Filed 5-30-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 801 [Docket No. FDA-2008-N-0148] Medical Devices; Hearing Aids; Technical Data Amendments AGENCY: Food and Drug Administration, HHS. ACTION: Direct final rule. SUMMARY: The Food and Drug Administration

(FDA)is amending its regulations governing hearing aid labeling to reference the most recent version of the consensus standard used to determine the technical data to be included in labeling for hearing aids. We are amending the regulations to require that manufacturers may use state-of-the-art methods to provide technical data in hearing aid labeling. FDA is also amending the regulations to update an address and remove an outdated requirement. FDA is amending the regulations in accordance with its direct final rule procedures. Elsewhere in this issue of the **Federal Register** , we are publishing a companion proposed rule under FDA's usual procedures for notice and comment rulemaking to provide a procedural framework to finalize the rule in the event we receive a significant adverse comment and withdraw this direct final rule. DATES: This rule is effective October 15, 2008. The Director of the Office of the **Federal Register** approves the incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51 of certain publications in § 801.420(c)(4) (21 CFR 801.420(c)(4)) as of October 15, 2008. Submit written or electronic comments by August 18, 2008. If we receive no significant adverse comments within the specified comment period, we intend to publish a document confirming the effective date of the final rule in the **Federal Register** within 30 days after the comment period on this direct final rule ends. If we receive any timely significant adverse comment, we will withdraw this final rule in part or in whole by publication of a document in the **Federal Register** within 30 days after the comment period ends. ADDRESSES: You may submit comments, identified by Docket No. FDA-2008-N-0148, by any of the following methods: *Electronic Submissions* Submit electronic comments in the following way: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. *Written Submissions* Submit written submissions in the following ways: • FAX: 301-827-6870. • Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal or the agency Web site, as described previously, in the ADDRESSES portion of this document under *Electronic Submissions* . *Instructions* : All submissions received must include the agency name and Docket No. for this rulemaking. All comments received may be posted without change to * http://www.regulations.gov* , including any personal information provided. For additional information on submitting comments, see the “Comments” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket* : For access to the docket to read background documents or comments received, go to * http://www.regulations.gov* and insert the docket number(s), found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: Eric A. Mann, Center for Devices and Radiological Health (HFZ-460), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 240-276-4242. SUPPLEMENTARY INFORMATION: I. What Is the Background of the Rulemaking? In the **Federal Register** of February 15, 1977 (the 1977 final rule) (42 FR 9286), FDA published a final rule establishing requirements for professional and patient labeling of hearing aids and governing conditions for sale of hearing aids (§ 801.420 and § 801.421 (21 CFR 801.421)). The regulations became effective on August 15, 1977. Section 801.421(b)(1) of the current regulations provides that, before the sale of a hearing aid to a prospective user, a hearing aid dispenser is to provide the prospective user with a copy of the User Instructional Brochure. Current § 801.420(c)(4) requires that technical data useful in selecting, fitting, and checking the performance of a hearing aid be provided in the brochure or in separate labeling that accompanies the device. The 1977 final rule further required that the technical data values provided in the brochure or other labeling be determined according to the test procedures established by the Acoustical Society of America

(ASA)in the American National Standard “Specification of Hearing Aid Characteristics,” ANSI S3.22-1976 (ASA 70-1976), which was incorporated by reference in the regulation. ANSI S3.22 (ASA 70-1976) established measurement methods and specifications for several important hearing aid characteristics. The standard provided a method of ascertaining whether a hearing aid, after being manufactured and shipped, met the specifications and design parameters stated by the manufacturer for a particular model, within the tolerance stated by the standard. In 1982, ASA revised the standard (ANSI S3.22-1982) (ASA 70-1982). In a final rule published in the **Federal Register** of July 24, 1985 (50 FR 30153), FDA incorporated the revised standard into § 801.420(c)(4). ASA revised the standard again in 1987 (ANSI S3.22-1987) (ASA 70-1987). In a final rule published in the **Federal Register** of December 21, 1989 (54 FR 52395), FDA incorporated the revised standard into § 801.420(c)(4). In 1996, ASA revised the standard again (ANSI S3.22-1996) (ASA 70-1996). In a final rule published in the **Federal Register** of November 3, 1999 (64 FR 59618), FDA incorporated the revised standard into § 801.420(c)(4). In 2003, ASA revised the standard again (ANSI S3.22-2003). The 1996 version of the standard was written prior to the development of digital hearing aids. Therefore, some of the test procedures described in the 1996 version of the standard, designed for assessment of analogue hearing aids, were modified to accommodate digital technology. The major differences between the two versions of the standard are as follows: • In the 1996 standard, the gain control was set to a specific reference test position for automatic gain control

(AGC)hearing aids and for all other types of hearing aids. In the 2003 standard, AGC hearing aids are tested in AGC mode only for those tests associated with AGC functions and are operated in non-AGC mode for all other tests. • In the 2003 standard, the tolerance for setting the gain control to reference test setting

(RTS)has been widened to ± 1.5 dB from ± 1.0 dB. FDA is now incorporating the 2003 standard into § 801.420(c)(4). This will allow hearing aid manufacturers to use the up-to-date methods to determine the technical data values for hearing aids. II. What Does This Direct Final Rulemaking Do? In this direct final rule, FDA is: • Amending § 801.420(c)(4) to change the identification of the standard from “American National Standard ‘Specification of Hearing Aid Characteristics,’ ANSI S3.22-1996 (ASA 70-1996) (Revision of ANSI S3.22-1987)” to “American National Standard ‘Specification of Hearing Aid Characteristics,’ ANSI S3.22-2003 (Revision of ANSI S3.22-1996) (Includes April 2007 Erratum)”. FDA also is updating an address in this section, changing “1350 Piccard Dr., rm. 240,” to “1350 Piccard Dr., rm. 150,”. • Removing § 801.420(d). This section requires that manufacturers submit to FDA for review their User Instructional Brochure and other labeling for each type of hearing aid on or before August 15, 1977. This section was included with the initial hearing aid rule in 1977. It was intended to provide for an initial FDA review of the labeling to meet the new requirements. This section is outdated and is no longer necessary. III. What Are the Procedures for Issuing a Direct Final Rule? In the **Federal Register** of November 21, 1997 (62 FR 62466), FDA announced the availability of the guidance document entitled “Guidance for FDA and Industry: Direct Final Rule Procedures” that described when and how FDA will employ direct final rulemaking. We believe that this rule is appropriate for direct final rulemaking because it is intended to make noncontroversial changes to existing regulations. We anticipate no significant adverse comment. Consistent with FDA's procedures on direct final rulemaking, elsewhere in this issue of the **Federal Register** , we are publishing a companion proposed rule that is identical to this direct final rule. The companion proposed rule provides a procedural framework within which the rule may be finalized in the event the direct final rule is withdrawn because of any significant adverse comment. The comment period for this direct final rule runs concurrently with the comment period of the companion proposed rule. Any comments received in response to the companion proposed rule will also be considered as comments regarding this direct final rule. If we receive any significant adverse comment, we intend to withdraw this final rule before its effective date by publication of a notice in the **Federal Register** within 30 days after the comment period ends. A significant adverse comment is defined as a comment that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without change. In determining whether an adverse comment is significant and warrants terminating a direct final rulemaking, we will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process in accordance with section 553 of the Administrative Procedure Act

(APA)(5 U.S.C. 553). Comments that are frivolous, insubstantial, or outside the scope of the rule will not be considered significant or adverse under this procedure. For example, a comment recommending an additional change to the rule will not be considered a significant adverse comment, unless the comment states why the rule would be ineffective without the additional change. In addition, if a significant adverse comment applies to part of a rule and that part can be severed from the remainder of the rule, we may adopt as final those parts of the rule that are not the subject of a significant adverse comment. If we withdraw the direct final rule, all comments received will be considered under the companion proposed rule in developing a final rule under the usual notice-and-comment procedures under the APA (5 U.S.C. 552a *et seq.* ). If we receive no significant adverse comment during the specified comment period, we intend to publish a confirmation document in the **Federal Register** within 30 days after the comment period ends. IV. What is the Legal Authority for This Direct Final Rule? This direct final rule is authorized by sections 201, 301, 501, 502, 701, and 704 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 331, 351, 352, 371, and 374). V. What is the Environmental Impact of This Direct Final Rule? The agency has determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. VI. What is the Economic Impact of This Direct Final Rule? FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this direct final rule is not a significant regulatory action as defined by the Executive order. The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. The direct final rule amends the existing hearing aid regulation to refer to the updated consensus standard that is used to determine the technical data in hearing aid labeling. It does not impose any new requirements. Communications from manufacturers to FDA show that they are prepared to comply with this standard immediately. The agency, therefore, certifies that the direct final rule will not have a significant economic impact on a substantial number of small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $127 million, using the most current

(2006)Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this direct final rule to result in any 1-year expenditure that would meet or exceed this amount. VII. How Does the Paperwork Reduction Act of 1995 Apply to This Direct Final Rule? This final rule contains information collection provisions that are subject to review by the Office of Management and Budget

(OMB)under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520). The collections of information addressed in the direct final rule have been approved by OMB in accordance with the PRA under the regulations governing labeling of medical devices (21 CFR part 801, OMB control number 0910-0485). VIII. What are the Federalism Impacts of This Direct Final Rule? FDA has analyzed this direct final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that 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. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required. IX. How Do You Submit Comments on This Direct Final Rule? Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments regarding this direct final rule. Submit a single copy of electronic comments or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. Please note that on January 15, 2008, the FDA Division of Dockets Management Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic comments or submissions will be accepted by FDA through FDMS only. List of Subjects in 21 CFR Part 801 Incorporation by reference, Labeling, Medical devices, Reporting and recordkeeping requirements. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 801 is amended as follows: PART 801—LABELING 1. The authority citation for 21 CFR part 801 continues to read as follows: Authority: 21 U.S.C. 321, 331, 351, 352, 360i, 360j, 371, 374. 2. Section 801.420 is amended by revising the second and third sentences of and adding a new fourth sentence to paragraph (c)(4) introductory text and by removing paragraph

(d)to read as follows: § 801.420 Hearing aid devices; professional and patient labeling.

(c)* * *

(4)* * * The determination of technical data values for the hearing aid labeling shall be conducted in accordance with the test procedures of the American National Standard “Specification of Hearing Aid Characteristics,” ANSI S3.22-2003 (Revision of ANSI S3.22-1996) (Includes April 2007 Erratum). The Director of the Office of the **Federal Register** approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies are available from the Standards Secretariat of the Acoustical Society of America, 120 Wall St., New York, NY 10005-3993, or are available for inspection at the Regulations Staff, CDRH (HFZ-215), FDA, 1350 Piccard Dr., rm. 150, Rockville, MD 20850, or at the National Archives and Records Administration (NARA). * * * Dated: May 19, 2008. Jeffrey Shuren, Associate Commissioner for Policy and Planning. [FR Doc. E8-11910 Filed 5-30-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2008-0414] RIN 1625-AA08 Special Local Regulations for Marine Events; Pasquotank River, Elizabeth City, NC AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing special local regulations for the “Carolina Cup Regatta”, a powerboat race to be held on the waters of the Pasquotank River, Elizabeth City, North Carolina. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in portions of the Pasquotank River adjacent to Elizabeth City, North Carolina during the powerboat races. DATES: This rule is effective from 7:30 a.m. on June 6, through 6:30 p.m., June 8, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0414 and are available online at *http://www.regulations.gov.* They are also available for inspection or copying at two locations: the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays, and the Fifth Coast Guard District, Office of Prevention, Room 416, 431 Crawford Street, Portsmouth, VA 23704 between 10 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary rule, call Dennis Sens, Project Manager, Fifth Coast Guard District, Prevention Division,

(757)398-6204 or e-mail at *Dennis.M.Sens@uscg.mil.* If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act

(APA)(5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking

(NPRM)with respect to this rule. Publishing an NPRM would be impracticable and contrary to public interest since immediate action is needed to minimize potential danger to the public during the event. The necessary information to determine whether the marine event poses a threat to persons and vessels was not provided with sufficient time to publish an NPRM. The danger posed by powerboat racing makes special local regulations necessary to provide for the safety of spectator craft and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. The Coast Guard will issue broadcast notice to mariners to advise vessel operators of navigational restrictions. On scene Coast Guard and local law enforcement vessels will also provide actual notice to mariners. Under 5 U.S.C. 553(d)(3) and for the same reasons, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying the effective date would be contrary to public interest, because immediate action is needed to ensure the safety of the event participants, spectator craft and other vessels transiting the event area. However advance notification will be made to users of the Pasquotank River, via marine information broadcasts, Local Notice to Mariners, commercial radio stations and local area newspapers. Background and Purpose On June 6, 7, and 8, 2008, the Virginia Boat Racing Association will sponsor the “Carolina Cup Regatta”, on the waters of the Pasquotank River. The event will consist of approximately 75 inboard hydroplanes racing in counter clockwise heats around an oval race course. A fleet of spectator vessels is anticipated to gather nearby to view the competition. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of event participants, spectators and transiting vessels. Discussion of Rule The Coast Guard is establishing a special local regulation on specified waters of the Pasquotank River, Elizabeth City, North Carolina. The special local regulations include all waters from shoreline to shoreline, bound to the west by the Elizabeth City Draw Bridge and on the east by a line originating at a point along the shoreline at latitude 36°17′54″ N, longitude 076°12′00″ W, thence southwesterly to latitude 36°17′35″ N, longitude 076°12′18″ W at Cottage Point. All coordinates reference Datum NAD 1983. The special local regulation will be in effect from 7:30 a.m. to 6:30 p.m., June 6 through June 8, 2008. The effect will be to restrict general navigation in the regulated area during the power boat races. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the enforcement period. The Patrol Commander will notify the public of specific enforcement times by marine band radio safety broadcast. These regulations are needed to control vessel traffic during the event to enhance the safety of event participants, spectators and transiting vessels. Regulatory Analyses We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. Regulatory Planning and Review This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation restricts vessel traffic from transiting a segment of the Pasquotank River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, commercial radio stations and local area newspapers so mariners can adjust their plans accordingly. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this section of the Pasquotank River during the event. This rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be enforced for only a short period, from 7:30 a.m. to 6:30 p.m. on June 6, 7 and 8, 2008. The regulated area will apply to a segment of the Pasquotank River adjacent to Elizabeth City. Marine Traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area during the event, vessels will be required to proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course. Before the enforcement period, we would issue maritime advisories so mariners can adjust their plans accordingly. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine event permit are specifically excluded from further analysis and documentation under those sections. Under figure 2-1, paragraph (34)(h), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, and Waterways. Words of Issuance and Regulatory Text For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows: PART 100—REGATTAS AND MARINE PARADES 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233. 2. Add a temporary § 100.35-T05-0414 to read as follows: § 100.35-T05-0414 Pasquotank River, Elizabeth City, NC.

(a)*Regulated area.* The regulated area is established for the waters of the Pasquotank River, adjacent to Elizabeth City, NC, from shoreline to shoreline, bound on the west by the Elizabeth City Draw Bridge and bound on the east by a line originating at a point along the shoreline at latitude 36°17′54″ N, longitude 076°12′00″ W, thence southwesterly to latitude 36°17′35″ N, longitude 076°12′18″ W., at Cottage Point. All coordinates reference Datum NAD 1983.

(b)*Definitions:*

(1)*Coast Guard Patrol Commander* means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Commander, Coast Guard Sector North Carolina.

(2)*Official Patrol* means any vessel assigned or approved by Commander, Coast Guard Sector North Carolina with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

(3)*Participant* includes all vessels participating in the 2008 Carolina Cup Regatta power boat race under the auspices of the Marine Event Permit issued to the event sponsor and approved by Commander, Coast Guard Sector North Carolina.

(c)*Special local regulations:*

(1)Except for event participants and persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.

(2)The operator of any vessel in the regulated area must:

(i)Stop the vessel immediately when directed to do so by any Official Patrol.

(ii)Proceed as directed by any Official Patrol.

(iii)When authorized to transit the regulated area, all vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the event area.

(d)*Enforcement period.*

(1)This section will be enforced from 7:30 a.m. to 6:30 p.m. on June 6, 7, and 8, 2008 and if the event's daily activities should conclude prior to 6:30 p.m., enforcement of this regulation may be terminated for that day at the discretion of the Patrol Commander.

(2)The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue marine information broadcast on VHF-FM marine band radio announcing specific event dates and times. Dated: May 21, 2008. Fred M. Rosa, Jr., Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E8-12154 Filed 5-30-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0341] RIN 1625-AA00 Safety Zone; Piscataqua River, Portsmouth, NH, and Kittery, ME; Frontier Sentinel 2008 AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing temporary moving safety zones around Coast Guard and Navy vessels as well as five fixed safety zones off to the west and south of Gerrish Island, south of Kittery Point, east of Jaffrey Point, and east of Odiornes Point during the Frontier Sentinel Exercise on the Piscataqua River, a homeland security exercise that will involve underwater equipment and operations. This rule will establish multiple fixed and moving safety zones that will be enforced from 8 a.m. to 5 p.m. daily on June 9, 2008 through June 12, 2008 from the General Sullivan Bridge, U.S. Route 16 to one mile seaward of the Red “2KR” buoy at the mouth of the river. This action is necessary to protect federal, state, and local assets (including unmanned underwater vehicles (UUV)) and others in the maritime community from the safety hazards that may arise from this large scale exercise. DATES: This rule is effective from 8 a.m. on June 9, 2008 through 5 p.m. on June 12, 2008. ADDRESSES: Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2008-0341 and are available online at *www.regulations.gov.* This material is also available for inspection or copying at two locations: the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays and at U.S. Coast Guard Sector Northern New England, 259 High Street, South Portland, ME 04106 between the hours of 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: LTJG Kevin Miller at

(207)741-5431. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. In conjunction with preparations for this exercise, the U.S. Navy and Coast Guard were not able to finalize the exercise scope, location, and timetables until April 23, 2008. Therefore, publishing of a proposed rule was not feasible. Nonetheless, the temporary establishment of the safety zones established by this rule is in the public interest. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Immediately implementing this rule promotes the public interest by protecting the maritime public and agency participants on the Piscataqua River during Frontier Sentinel 2008. Background and Purpose This rule establishes five fixed safety zones as well as moving safety zones for the duration of the exercise. The rule is necessary to protect the federal, state, local, and public entities on the Piscataqua River during Frontier Sentinel 2008, a large scale mine countermeasures exercise. The exercise area will encompass all waters of the Piscataqua River from the General Sullivan Bridge, U.S. Route 16, seaward to one mile past the Red “2KR” buoy at the mouth of the river. Within this exercise area, there will be numerous federal, state, and local vessels participating with divers and unmanned underwater vehicles (UUV). The UUV's will be monitored by Coast Guard, Navy, or state patrol vessels, designated with the blue and white Alpha (Diver Down) Flag. Discussion of Rule The five fixed safety zones will be established where continuous diving operations will take place during the hours of the exercise. These fixed safety zones will be located near Gerrish Island, Kittery Point, Jaffrey Point, and Odiornes Point. The five temporary fixed safety zones will be enforced between the hours of 8 a.m. to 5 p.m. on June 9, 2008 through June 12, 2008: All waters on the Piscataqua River enclosed by a box starting from a point located south of Kittery Point at latitude 43°04′41″ N, longitude 70°43′03″ W; thence to latitude 43°04′36″ N, longitude 70°43′02″ W; thence to latitude 43°04′40″ N, longitude 70°42′34″ W; thence to latitude 43°04′45″ N, longitude 70°42′36″ W; thence to the point of beginning. All waters on the Piscataqua River enclosed by a box starting from a point located east of Jaffrey Point at latitude 43°03′48″ N, longitude 70°42′36″ W; thence to latitude 43°03′15″ N, longitude 70°42′39″ W; thence to latitude 43°03′15″ N, longitude 70°42′21″ W; thence to latitude 43°03′48″ N, longitude 70°42′28″ W; thence to the point of beginning. All waters on the Piscataqua River enclosed by a box starting from a point located west of Gerrish Island at latitude 43°04′32″ N, longitude 70°42′09″ W; thence to latitude 43°04′13″ N, longitude 70°42′05″ W; thence to latitude 43°03′55″ N, longitude 70°42′04″ W; thence to latitude 43°03′59″ N, longitude 70°41′53″ W; thence to latitude 43°04′15″ N, longitude 70°41′56″ W; thence to the point of beginning. All waters on the Piscataqua River enclosed by a box starting from a point located east of Odiornes Point at latitude 43°03′05″ N, longitude 70°42′45″ W; thence to latitude 43°02′32″ N, longitude 70°42′33″ W; thence to latitude 43°02′40″ N, longitude 70°42′34″ W; thence to latitude 43°02′40″ N, longitude 70°42′05″ W; thence to latitude 43°02′53″ N, longitude 70°42′19″ W; thence to the point of beginning. All waters on the Piscataqua River enclosed by a box starting from a point located south of Gerrish Island at latitude 43°03′21″ N, longitude 70°41′24″ W; thence to latitude 43°02′46″ N, longitude 70°41′13″ W; thence to latitude 43°02′46″ N, longitude 70°39′27″ W; thence to latitude 43°03′32″ N, longitude 70°40′10″ W; thence to latitude 43°03′27″ N, longitude 70°40′28″ W; thence to the point of beginning. All coordinates for these safety zones are North American Datum 1983 (NAD 83). The temporary moving safety zones will be established as necessary to encompass Coast Guard, Navy, and state patrol vessels, with a radius of 100 yards, to ensure the safety of the maritime public from the hazards associated with the UUV operations. There may be as many as five simultaneous moving safety zones throughout the operation area. The establishment and enforcement of these zones will be announced via a Broadcast Notice to Mariners during the exercise timeframe. These vessels and their associated UUV's will be operating in the Piscataqua River from the General Sullivan, U.S. Route 16 bridge, seaward to the mouth of the river near one mile past the Red “2KR” Buoy. The vessels will be displaying an Alpha (Diver Down) Flag. Mariners wishing to transit through the moving safety zones must contact the Captain of the Port

(COTP)or the COTP's designated representative at telephone number 207-767-0303 or contact the designated Patrol Commander on VHF Channel 13 (156.7 MHz) or VHF channel 16 (156.8 MHz) to seek permission to do so. If permission is granted, all persons and vessels must comply with the instructions provided by the COTP or the COTP's designated representative. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. The effect of this rule will not be significant for the following reasons: The safety zone will be of limited duration. The event is designed to avoid, as much as practicable, deep draft, fishing, and recreational boating traffic routes. Vessels may be authorized to transit the zone with permission of the COTP. Additionally, maritime advisories will be broadcast during the duration of the effective period. Extensive outreach has been conducted through the Area Maritime Security Committee, the Area Committee, and the Maine and New Hampshire Port Safety Forum, as well as focused outreach to key stakeholders. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit in the safety zone during this exercise. However, this rule will not have a significant economic impact on a substantial number of small entities due to the minimal time that vessels will be restricted from the area, the ample space available for vessels to maneuver and navigate around the zone, and advance notifications will be made to the local community by marine information broadcasts. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this temporary rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LTJG Kevin Miller at

(207)741-5431, Sector Northern New England, Waterways Management Division. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Checklist” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T01-0341 to read as follows: § 165.T01-0341 Safety Zone; Piscataqua River, Portsmouth, NH, and Kittery, ME; Frontier Sentinel 2008.

(a)*Location.* The following areas are fixed safety zones:

(1)All waters on the Piscataqua River enclosed by a box starting from a point located south of Kittery Point at latitude 43°04′41″ N, longitude 70°43′03″ W; thence to latitude 43°04′36″ N, longitude 70°43′02″ W; thence to latitude 43°04′40″ N, longitude 70°42′34″ W; thence to latitude 43°04′45″ N, longitude 70°42′36″ W; thence to the point of beginning.

(2)All waters on the Piscataqua River enclosed by a box starting from a point located east of Jaffrey Point at latitude 43°03′48″ N, longitude 70°42′36″ W; thence to latitude 43°03′15″ N, longitude 70°42′39″ W; thence to latitude 43°03′15″ N, longitude 70°42′21″ W; thence to latitude 43°03′48″ N, longitude 70°42′28″ W; thence to the point of beginning.

(3)All waters on the Piscataqua River enclosed by a box starting from a point located west of Gerrish Island at latitude 43°04′32″ N, longitude 70°42′09″ W; thence to latitude 43°04′13″ N, longitude 70°42′05″ W; thence to latitude 43°03′55″ N, longitude 70°42′04″ W; thence to latitude 43°03′59″ N, longitude 70°41′53″ W; thence to latitude 43°04′15″ N, longitude 70°41′56″ W; thence to the point of beginning.

(4)All waters on the Piscataqua River enclosed by a box starting from a point located east of Odiornes Point at latitude 43°03′05″ N, longitude 70°42′45″ W; thence to latitude 43°02′32″ N, longitude 70°42′33″ W; thence to latitude 43°02′40″ N, longitude 70°42′34″ W; thence to latitude 43°02′40″ N, longitude 70°42′05″ W; thence to latitude 43°02′53″ N, longitude 70°42′19″ W; thence to the point of beginning.

(5)All waters on the Piscataqua River enclosed by a box starting from a point located south of Gerrish Island at latitude 43°03′21″ N, longitude 70°41′24″ W; thence to latitude 43°02′46″ N, longitude 70°41′13″ W; thence to latitude 43°02′46″ N, longitude 70°39′27″ W; thence to latitude 43°03′32″ N, longitude 70°40′10″ W; thence to latitude 43°03′27″ N, longitude 70°40′28″ W; thence to the point of beginning.

(6)All vessels and swimmers are restricted from entering these areas.

(b)*Location.* The following areas are moving safety zones:

(1)All waters on the Piscataqua River in a moving 100 yard radius surrounding United States Navy, Coast Guard, and state vessels displaying an Alpha (Diver Down) Flag from the General Sullivan Bridge, U.S. Route 16, to one mile past the Red “2KR” Buoy.

(2)All vessels and swimmers are restricted from entering these areas.

(c)*Effective Date.* This rule is effective from 8 a.m. on June 9, 2008 through 5 p.m. June 12, 2008, and will be enforced from 8 a.m. to 5 p.m. daily during that period.

(d)*Definitions.*

(1)*Designated Representative* means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port (COTP).

(2)[Reserved]

(e)*Regulations.*

(1)In accordance with the general regulations in 165.23 of this part, entry into or movement within this zone by any person or vessel is prohibited unless authorized by the COTP, Sector Northern New England or the COTP's designated representative.

(2)Vessel operators desiring to enter or operate within the safety zones may contact the COTP or the COTP's designated representative at telephone number 207-767-0303 or designated representative on VHF Channel 13 (156.7 MHz) or VHF channel 16 (156.8 MHz)to seek permission to do so. If permission is granted, all persons and vessels must comply with the instructions provided by the COTP or the COTP's designated representative. Dated: May 20, 2008. J.E. Rendon, Captain, U.S. Coast Guard, COTP Northern New England. [FR Doc. E8-12175 Filed 5-30-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2007-1132; FRL-8573-3] Approval and Promulgation of Air Quality Implementation Plans; Minnesota; Interstate Transport of Pollution AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is approving revisions to the Minnesota State Implementation Plan

(SIP)for ozone and particulate matter

(PM)which address the “good neighbor” provisions of the Clean Air Act (CAA). These provisions require each state to submit a SIP that prohibits emissions that adversely affect another state's air quality. The Minnesota Pollution Control Agency

(MPCA)has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to nonattainment of the National Ambient Air Quality Standards (NAAQS) in another state, interference with maintenance of the NAAQS in another state, interference with plans in another state to prevent significant deterioration of air quality, and interference with plans in another state to protect visibility. DATES: This rule is effective on August 1, 2008, unless EPA receives adverse written comments by July 2, 2008. If EPA receives adverse comments, EPA will publish a timely withdrawal of the rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-1132 by one of the following methods: • *http://www.regulations.gov:* Follow the online instructions for submitting comments. • *E-mail: aburano.douglas@epa.gov.* • Fax:

(312)886-5824. • *Mail:* Douglas Aburano, Acting Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • *Hand Delivery:* Douglas Aburano, Acting Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2007-1132. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *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 docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone Charles Hatten, Environmental Engineer, at

(312)886-6031 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Charles Hatten, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-6031, *hatten.charles@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions: Table of Contents I. Background II. What is being addressed in this document? III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. Background On July 18, 1997, EPA promulgated revised NAAQS for ozone and PM. For ozone, EPA adopted a standard of 0.08 ppm over an 8-hour averaging period (62 FR 38856). For PM, EPA added new 24-hour and annual standards for particles less than or equal to 2.5 micrometers in diameter (PM 2.5 ) (62 FR 38652). Section 110(a)(1) of the CAA requires states to submit new SIPs that provide for the implementation, maintenance, and enforcement of a new or revised standard within three years after promulgation of such standard, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, including section 110(a)(2)(D)(i), which applies to interstate transport of certain emissions. While section 110(a)(1) imposes the obligation upon states to make a SIP submission for a new or revised NAAQS, the contents of that submission may vary depending upon the facts and circumstances related to the specific NAAQS. On April 25, 2005, EPA made a finding that states had failed to submit SIPs to satisfy the requirements of section 110(a)(2)(D)(i) of the CAA for the 8-hour ozone and PM 2.5 NAAQS. See 70 FR 21147. This finding started a 2-year clock for promulgation by EPA of a Federal Implementation Plan (FIP), in accordance with section 110(c)(1), for any state that did not submit a SIP meeting the requirements of section 110(a)(2)(D)(i) for both the 8-hour ozone and PM 2.5 NAAQS. If, prior to that time, a state made a submission to meet the requirements of section 110(a)(2)(D)(i) and EPA approved the submission, EPA would not be required to promulgate a FIP for that state. II. What is being addressed in this document? EPA is approving the SIP revision submitted by MPCA on October 23, 2007, to address the requirements of section 110(a)(2)(D)(i) of the CAA. This section requires each state to submit a SIP which prohibits emissions that could adversely affect the air quality in another state. The SIP must prevent sources in the state from emitting pollutants in amounts which will:

(1)Contribute significantly to nonattainment of the NAAQS in another state,

(2)interfere with maintenance of the NAAQS in another state,

(3)interfere with the plans in another state to prevent significant deterioration of air quality, and

(4)interfere with the plans of another state to protect visibility. EPA issued a guidance memorandum (Interstate Transport Guidance) on August 15, 2006, relating to SIP submissions to meet the requirements of section 110(a)(2)(D)(i) for the 8-hour ozone and PM 2.5 NAAQS. 1 As discussed below, Minnesota's analysis of its SIP with respect to the statutory requirements is consistent with this guidance. 1 *See* memorandum from William T. Harnett, Director, Air Quality Policy Division, Office of Air Quality Planning and Standards, U.S. EPA, entitled “Guidance for State Implementation Plan

(SIP)Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards,” dated August 15, 2006. The MPCA addressed the first two elements, relating to monitor interference with attainment and maintenance of the NAAQS, by asserting that Minnesota is covered by the FIP for the Clean Air Interstate Rule (CAIR). In the CAIR, EPA concluded that states meet their section 110(a)(2)(D)(i) obligations to address the “significant contribution” and “interference with the maintenance” requirements by complying with the CAIR requirements, either by submitting an approvable CAIR SIP or relying on the CAIR FIP. 2 Consequently, Minnesota will not need to submit a separate SIP revision to satisfy the section 110(a)(2)(D)(i), since they are relying on the CAIR FIP. Minnesota is covered by the CAIR due solely to its influence on PM 2.5 nonattainment in Chicago (Illinois), and was not determined by EPA to impact ozone nonattainment in any area. 2 *See* page 4 in EPA's Interstate Transport Guidance, referenced in Footnote 1. The third element MPCA addressed was prevention of significant deterioration

(PSD)of air quality in another state. All new sources in Minnesota are subject to the federal PSD permitting program. Minnesota has a delegated PSD program and therefore has been given the authority by EPA to implement and enforce the federal PSD program. The PSD program satisfies the requirement of section 110(a)(2)(D)(i) prohibiting interference with measures required to meet the implementation plan for any other state related to PSD. It should be noted that the entire state of Minnesota is attaining both the 8-hour ozone and PM 2.5 NAAQS. The fourth required element, relating to Minnesota's impact on visibility impairment in another state, will be addressed by Minnesota's regional haze SIP. MPCA concurs with EPA in concluding that it is currently premature to determine whether or not SIPs for 8-hour ozone or PM 2.5 contain adequate provisions to prohibit emissions that interfere with measures in SIPS developed by other states to address visibility impairment. 3 MPCA is currently accepting comments on a separate SIP revision that will fulfill Minnesota's requirements under EPA's regional haze rule and address the section 110(a)(2)(D)(i) requirement with respect to visibility. The State is on a schedule to submit this revision to EPA in July of 2008. Until this SIP is submitted, an accurate assessment regarding the impact of emissions and control measures on other states' SIPs cannot be made. When EPA takes action on Minnesota's regional haze SIP, EPA will also make a determination regarding the adequacy of the SIP in addressing section 110(a)(2)(D)(i) with respect to visiblilty. 3 *See* pages 9 and 10 in EPA's Interstate Transport Guidance, referenced in Footnote 1. Minnesota placed the section 110(a)(2)(D)(i) SIP on notice on September 4, 2007, and offered the opportunity for a public hearing. No public hearing was requested and no comments were received. With this action, the non-regulatory text in 40 CFR 52.1220(e) is revised to reflect that MPCA addressed the elements of the CAA section 110(a)(2)(D)(i) submittal. III. What action is EPA taking today? EPA is approving this revision submitted by Minnesota and is revising 40 CFR 52.1220(e) to reflect that the MPCA has adequately addressed the required elements of the CAA section 110(a)(2)(D)(i) SIP. Please note that if EPA receives adverse comments on part of this rule, and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this **Federal Register** publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective August 1, 2008 without further notice unless we receive relevant adverse written comments by July 2, 2008. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective August 1, 2008. IV. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ); • 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); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. 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 action 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 August 1, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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, Incorporation by reference, Ozone, Particulate matter, and Volatile organic compounds. Dated: May 21, 2008. Walter W. Kovalick, Jr. Acting Regional Administrator, Region 5. For the reasons stated in the preamble, part 52, chapter I, of 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 Y—Minnesota 2. In Section 52.1220 the table in paragraph

(e)is amended by adding an entry in alphabetical order for “CAA 110(a)(2)(D)(i) SIP-Interstate Transport” to read as follows: § 52.1220 Identification of plan.

(e)* * * EPA-Approved Minnesota Nonregulatory Provisions Name of Nonregulatory SIP Provision Applicable geographic or nonattainment area State submittal date/effective date EPA approved date Comments * * * * * * * CAA 110(a)(2)(D)(i) SIP-Interstate Transport Statewide 10/23/07 06/02/08 [insert FR page number where the document begins] * * * * * * * [FR Doc. E8-12222 Filed 5-30-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2005-SC-0004-200809; FRL-8573-2] Approval and Promulgation of Implementation Plans; South Carolina; Prevention of Significant Deterioration and Nonattainment New Source Review Rules AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is taking final action to partially approve, disapprove, and conditionally approve revisions to the South Carolina State Implementation Plan

(SIP)submitted by the State of South Carolina on July 1, 2005. The SIP revisions modify the South Carolina Prevention of Significant Deterioration

(PSD)program to address changes to the federal New Source Review

(NSR)regulations, which were promulgated by EPA on December 31, 2002, and reconsidered with minor changes on November 7, 2003 (commonly referred to as the “2002 NSR Reform Rules”). The revisions also provide for new Nonattainment New Source Review

(NNSR)regulations in the South Carolina SIP. EPA proposed action on these revisions on September 12, 2007; no comments were received on that proposal. DATES: *Effective Date:* This rule will be effective July 2, 2008. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2005-SC-0004. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information 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 through *http://www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person 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 federal holidays. FOR FURTHER INFORMATION CONTACT: For information regarding the South Carolina State Implementation Plan, contact Ms. Nacosta Ward, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is

(404)562-9140. Ms. Ward can also be reached via electronic mail at *ward.nacosta@epa.gov.* For information regarding New Source Review, contact Ms. Kelly Fortin, Air Permits Section, at the same address above. The telephone number is

(404)562-9117. Ms. Fortin can also be reached via electronic mail at *fortin.kelly@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Taking? II. What Is the Background for This Action? III. Final Action IV. Statutory and Executive Order Reviews I. What Action Is EPA Taking? EPA is taking final action to partially approve, disapprove, and conditionally approve revisions to the South Carolina SIP (Regulation 61-62.1, Regulation 61-62.5 Standard No. 7, and Regulation 61-62.5 Standard No. 7.1) as submitted by South Carolina Department of Health and Environmental Control

(DHEC)on July 1, 2005, which include changes to South Carolina's PSD and NNSR programs. EPA is now taking the following related actions: —Approving the entirety of South Carolina's PSD program with the exception of any references to Pollution Control Projects

(PCPs)and clean units, those provisions are disapproved; —Approving Regulation 61-61.2, regarding synthetic minor sources, which is part of the State's minor source preconstruction permitting program; —Disapproving all rules referencing clean units and PCPs in South Carolina's NNSR program; and —Conditionally approving South Carolina's NNSR program. As part of the current conditional approval, South Carolina has agreed to:

(a)Revise the State NNSR program to include a provision that emission reductions must be surplus and are not to be used as offsets if they are otherwise required by the SIP, New Source Performance Standards (NSPS), National Emissions Standards for Hazardous Air Pollutants (NESHAP), including Maximum Achievable Control Technology

(MACT)standards, or other federal requirements;

(b)revise the State NNSR program to include a methodology for calculating offsets;

(c)submit the required SIP revisions to EPA within twelve months; and

(d)utilize the provisions of 40 CFR part 51, Appendix S to supplement the State NNSR program as necessary until the NNSR program is approved by EPA. On September 12, 2007 (72 FR 52037), EPA published a notice of proposed rulemaking

(NPR)in the **Federal Register** , proposing to partially approve, disapprove, and conditionally approve revisions to the South Carolina SIP submitted by the State of South Carolina on July 1, 2005. The September 12, 2007, NPR provides additional information about the proposed South Carolina SIP revisions and the rationale for this final action. The public comment period for the proposed action ended on October 12, 2007. No comments were received on EPA's proposed action. Consistent with section 110(k) of the Clean Air Act (CAA), EPA is now taking final action to partially approve, disapprove and conditionally approve the July 1, 2005, SIP revision from South Carolina. II. What Is the Background for This Action? On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 Code of Federal Regulations

(CFR)parts 51 and 52, regarding the CAA PSD and NNSR programs. On November 7, 2003 (68 FR 63021), EPA published a notice of final action on its reconsideration of the December 31, 2002, final rule changes. In that November 7, 2003, final action, EPA added the definition of “replacement unit,” and clarified an issue regarding plant-wide applicability limitations. Collectively, these EPA final actions are referred to as the “2002 NSR Reform Rules.” On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to exclude the clean units and PCP provisions that were vacated by the United States Court of Appeals for the District of Columbia Circuit (DC Circuit Court) on June 24, 2005. Further, on December 21, 2007, EPA took final action on the portion of the 2002 NSR Reform Rules remanded by the DC Circuit Court, regarding the reasonable possibility and recordkeeping provision. The “reasonable possibility” provision identifies, for sources and reviewing authorities, the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records. On December 21, 2007, EPA established that “reasonable possibility” exists where source emissions equal or exceed 50 percent of the CAA NSR significance levels for any pollutant (72 FR 72607). These changes became effective on January 22, 2008, and the final action on that provision explains the process that states should follow if a SIP revision is necessary. 1 1 South Carolina's reasonable possibility and recordkeeping requirements, now being included in the SIP, are at least as stringent as those set forth in EPA's December 21, 2007, final rule on reasonable possibility due to language in South Carolina's PSD program requiring all source to maintain records required by federal law. The July 1, 2005, submittal consists of changes to the South Carolina Air Pollution Control Regulations and Standards (South Carolina Regulations). Specifically, the proposed SIP revisions include changes to South Carolina Regulation 61-62.1 entitled “Definitions and General Standards;” Regulation 61-62.5, Standard No. 7 entitled “Prevention of Significant Deterioration;” and Regulation 61-62.5, Standard No. 7.1 entitled “Nonattainment New Source Review.” DHEC submitted this SIP revision in response to EPA's December 31, 2002, changes to the federal NSR program. EPA is now partially approving and disapproving certain portions of the July 1, 2005, SIP submittal, consistent with section 110(k)(3) of the CAA. EPA is also conditionally approving provisions of the July 1, 2005, SIP submittal consistent with section 110(k)(4) of the CAA. As part of the conditional approval, South Carolina will have twelve months from the date of EPA's final conditional approval of the SIP revisions in which to further revise its NNSR rules, as described herein, to be consistent with existing federal law. More specifically, pursuant to section 110(k)(3), EPA is taking final action to:

(1)Approve Section II of South Carolina Regulation 61-62.1 to allow for synthetic minor permits to be issued in nonattainment areas;

(2)partially approve South Carolina's PSD program; and

(3)disapprove all references to PCPs and clean units in South Carolina's PSD and NNSR programs. The PCP and clean unit references are all severable from the other provisions of South Carolina's PSD and NNSR programs. EPA is not approving any portion of South Carolina's rules regarding PCPs and clean units. Further, any use by South Carolina of the PCP, clean unit, or similar provisions, is, according to a federal appeals court, contrary to the CAA. Pursuant to section 110(k)(4) of the CAA, EPA may conditionally approve a portion of a SIP revision based on a commitment from the State to adopt specific, enforceable measures no later than twelve months from the approval date of final conditional approval. If the State fails to make the changes within the twelve month period, EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval. The necessary revisions to the South Carolina SIP will materially alter the existing SIP-approved rule, and, as a result, the State must also make a new SIP submittal to EPA for approval that includes the rule changes. As with any SIP revision, South Carolina must provide an opportunity for public notice and comment and allow for a public hearing (and any other procedures required by State law) on the proposed rule changes. If South Carolina timely revises its rules and submits the revised SIP submittal, EPA will process that SIP revision consistent with the CAA. With regard to the conditional approval of the NNSR program, South Carolina must revise its rules to include a methodology for calculating emissions reductions to be used as offsets that includes a baseline for determining credit for emissions offsets that, at a minimum, meets the requirements set out in 40 CFR 51.165(a)(3)(i) and Appendix S section IV.C. The emission offsets provisions must also specify that the reductions must be surplus and cannot be used for offsets if they are otherwise required by the South Carolina SIP or other federal standards, such as the NSPS and NESHAP, including the MACT standards. As part of the conditional approval, South Carolina has committed to make these changes within the twelve month timeframe. Further, in the interim until the required State NNSR program changes are in effect, South Carolina has committed to utilize the requirements of the federal NNSR program outlined in 40 CFR part 51, Appendix S (see, Letter of Commitment from M. Reece, DHEC, to B. Banister, EPA, November 20, 2007, included in the docket for this action). The September 12, 2007, NPR and the docket for this action provide more details about the SIP revisions being approved and the rationale for EPA's final action. For additional information on EPA's 2002 NSR Reform Rules, see, 67 FR 80186 (December 31, 2002), and *http://www.epa.gov/nsr.* III. Final Action EPA is taking final action to partially approve, disapprove, and conditionally approve changes to the South Carolina Air Pollution Control Regulation 61-62.1 entitled “Definitions and General Standards;” Regulation 61-62.5, Standard No. 7 entitled “Prevention of Significant Deterioration;” and Regulation 61-62.5, Standard No. 7.1 entitled “Nonattainment New Source Review,” as submitted by the State of South Carolina on July 1, 2005, as revisions to the South Carolina SIP. IV. 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 final 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 (59 FR 22951, 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). This action merely approves state and local rules implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. 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 CAA. 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 CAA. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 1, 2008. 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, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: May 21, 2008. J.I. Palmer, Jr., Regional Administrator, Region 4. 40 CFR part 52 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 PP—South Carolina 2. A new § 52.2119 is added to read as follows: § 52.2119 Identification of plan-conditional approval. EPA is conditionally approving a revision to the South Carolina State Implementation Plan

(SIP)consisting of a new Standard (South Carolina Regulation 61-62.5 Standard No. 7.1). Based upon a commitment from the State, South Carolina must:

(a)Revise the Nonattainment New Source Review

(NNSR)program to include a provision that emission reductions must be surplus and are not to be used as offsets if they are otherwise required by the SIP, New Source Performance Standards and National Emissions Standards for Hazardous Air Pollutants including the Maximum Achievable Control Technology standards, or other federal requirements and submit to EPA a SIP revision with the revised rule;

(b)Revise the State NNSR program to include a methodology for calculating offsets, and submit to EPA a SIP revision with the revised rule; and

(c)Utilize the provisions of 40 CFR part 51, Appendix S to supplement its NNSR program until South Carolina's NNSR program is approved by EPA. If the State fails to meet its commitment by June 2, 2009 the approval is treated as a disapproval. Also, EPA is disapproving two provisions of South Carolina's NNSR program (submitted on July 1, 2005) that relate to provisions that were vacated from the federal program by the United States Court of Appeals for the District of Columbia Circuit on June 24, 2005. The two provisions vacated from the federal rules pertain to Pollution Control Projects

(PCPs)and clean units. The PCP and clean unit references are severable from the remainder of the NNSR program. Specifically, the following sections of South Carolina Regulation 61-62.5 Standard No. 7.1 are being disapproved: (b)(5); (b)(6)—Second sentence only; (b)(8); (c)(4); (c)(6)(C)(viii); (c)(8)(C)(iii); (c)(8)(E)(v); (c)(10); (d)(1)(C)(ix); (d)(1)(C)(x); (d)(3)—Only the reference to the term “clean unit” is being disapproved. The remainder of this regulatory provision is being approved; (d)(4)—Only the reference to the term “clean unit” is being disapproved. The remainder of this regulatory provision is being approved; (f);

(g)and (h). 3. Section 52.2120 is amended by revising the entries under Regulation No. 62.1 for “Section II” and “Regulation No. 62.5, Standard 7” to read as follows: § 52.2120 Identification of plan.

(c)* * * Air Pollution Control Regulations for South Carolina State citation Title/subject State effective date EPA approval date Federal Register notice Regulation No. 62.1 Definitions and General Requirements * * * * * * * Section II Permit Requirements 06/24/05 06/02/08 [Insert citation of publication]. * * * * * * * Standard No. 7 Prevention of Significant Deterioration 1 06/24/05 06/02/08 [Insert citation of publication]. * * * * * * * 1 This regulation (submitted on July 1, 2005) includes two portions of EPA's 2002 NSR Reform Rules that were vacated by the D.C. Circuit Court—Pollution Control Projects

(PCPs)and clean units. As a result, EPA is disapproving all rules and/or rule sections in the South Carolina PSD rules referencing clean units or PCPs. Specifically, the following South Carolina rules are being disapproved: (a)(2)(iv)(e); (a)(2)(iv)(f) (second sentence only); (a)(2)(vi); (b)(12); (b)(30)(iii)(h); (b)(34)(iii)(b); (b)(34)(vi)(d); (b)(35); (r)(6) (only the reference to the term “clean unit” is being disapproved. The remainder of this regulatory provision is being approved); (r)(7) (only the reference to the term “clean unit” is being disapproved. The remainder of this regulatory provision is being approved); (x);

(y)and (z). [FR Doc. E8-12091 Filed 5-30-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2006-0699; FRL-8568-8] RIN 2060-AO90 Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry; Standards of Performance for Equipment Leaks of VOC in Petroleum Refineries AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule; stay. SUMMARY: EPA is taking direct final action on the standards of performance for equipment leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry (SOCMI) and Petroleum Refineries. On November 16, 2007, EPA promulgated amendments and established new standards for these industries. Following that action, the Administrator received a petition for reconsideration. In response to the petition, EPA granted a stay of certain provisions in the final amendments and new standards. In this action, EPA is extending the stay of the requirements under reconsideration until a final decision is reached on these issues. DATES: This rule is effective on August 1, 2008 without further notice, unless EPA receives adverse comment by July 2, 2008 or receives a request for a public hearing. If EPA receives adverse comment or a hearing request, we will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0699, by one of the following methods: • *www.regulations.gov:* Follow the online instructions for submitting comments. • E-mail: *a-and-r-docket@epa.gov.* • Fax:

(202)566-1741. • Mail: U.S. Postal Service, send comments to: Air and Radiation Docket (6102T), Docket No. EPA-HQ-OAR-2006-0699, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20460. • Hand Delivery: In person or by Courier, deliver comments to: Air and Radiation Docket (6102T), EPA West Building, Room B-102, 1301 Constitution Ave., NW., Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0699. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be confidential business information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center home page at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the Federal Docket Management System index at *www.regulations.gov.* 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 through *www.regulations.gov* or in hard copy at the Air and Radiation Docket, EPA West Building, Room B-102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air and Radiation Docket is

(202)566-1742. We request that you also send a separate copy of each comment to the contact persons listed below (see FOR FURTHER INFORMATION CONTACT ). FOR FURTHER INFORMATION CONTACT: Ms. Karen Rackley, Coatings and Chemicals Group, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (E143-01), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number:

(919)541-0634; fax number: 919 541-0246; e-mail address: *rackley.karen@epa.gov.* SUPPLEMENTARY INFORMATION: *Organization of This Document.* The following outline is provided to aid in locating information in this preamble. I. Why is EPA using a direct final rule? II. Does this action apply to me? III. What should I consider as I prepare my comments for EPA? IV. How do I obtain a copy of this document and other related information? V. Background Information VI. What action is EPA taking? VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act 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 Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Why is EPA using a direct final rule? EPA is publishing the action without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today's **Federal Register** , we are publishing a separate document that will serve as the proposed rule to extend the stay if adverse comments are received on this direct final action. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the **Federal Register** informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule. II. Does this action apply to me? Categories and entities potentially regulated by this action are synthetic organic chemicals manufacturers and petroleum refineries. The New Source Performance Standards

(NSPS)for equipment leaks of VOC in SOCMI and petroleum refineries affect the following categories of sources: Category NAICS code 1 Examples of potentially regulated entities Industry 324110 Petroleum refiners. Primarily 325110, 325192, 325193, and 325199 Synthetic organic chemical manufacturing industry (SOCMI) units, e.g., producers of benzene, toluene, or any other chemical listed in 40 CFR 60.489. 1 North American Industrial Classification Code. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the final amendments and new standards for equipment leaks of VOC in SOCMI and petroleum refineries. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR 60.480, 60.590, 60.480a, and 60.590a. If you have any questions regarding the applicability of the NSPS to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. III. What should I consider as I prepare my comments for EPA? *Submitting CBI.* Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. IV. How do I obtain a copy of this document and other related information? *Docket.* The docket number for this action and the final SOCMI and petroleum refineries equipment leak NSPS (40 CFR part 60, subparts VV, VVa, GGG, and GGGa) is Docket ID No. EPA-HQ-OAR-2006-0699. *Worldwide Web (WWW).* In addition to being available in the docket, electronic copies of the final amendments and this action are available on the WWW through the Technology Transfer Network Web site (TTN Web). Following signature, EPA posted a copy of this notice on the TTN's policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. V. Background Information On November 16, 2007, EPA promulgated amendments and established new standards of performance for equipment leaks of VOC in the SOCMI and Petroleum Refineries (72 FR 64860). Following the promulgation of the final amendments and new standards for these industries, EPA received a petition for reconsideration on January 15, 2008 from the American Chemistry Council (ACC), the American Petroleum Institute (API), and the National Petrochemical and Refiners Association

(NPRA)(“Petitioners”). The petitioners, pursuant to CAA section 307(d)(7)(B), requested EPA reconsider four provisions in the rules:

(1)The clarification of the definition of process unit in subparts VV, VVa, GGG, and GGGa;

(2)the assigning of shared storage tanks to specific process units in subparts VV, VVa, GGG, and GGGa;

(3)the connecter monitoring requirements in subpart VVa; and

(4)the definition of capital expenditure in subpart VVa. The petitioners also requested that EPA stay the effectiveness of these provisions of the rule pending resolution of their petition for reconsideration. The petition can be found in the public docket (EPA-HQ-OAR-2006-0699). On March 4, 2008, EPA sent a letter to the petitioners, through their counsel, informing them that EPA was granting their request for reconsideration on three of the issues listed above. We indicated in the letter that no action was being taken on the issue of the clarification of the definition of process unit at that time. Finally, the letter indicated that EPA was granting a 90-day stay of the provisions of the rules under reconsideration (see CAA section 307(d)(7)(B)), as well as the clarification of the definition of process unit, because of its interaction with the new provision regarding the allocation of shared storage vessels. The letter from EPA to the petitioners can be found in the public docket (EPA-HQ-OAR-2006-0699). VI. What action is EPA taking? Today's action extends the stay of the provisions under reconsideration and the stay of the clarification of the definition of process unit. As noted above, EPA granted a 90-day stay of these provisions under CAA section 307(d)(7)(B) on March 4, 2008. That stay expires on June 1, 2008. We are extending the stay until we have reached a final decision on all of the issues raised in the petition for reconsideration. While the Agency does not generally grant stays pending reconsideration, we believe that the unique compliance issues created by our final rule warrant a limited stay pending reconsideration. As we explained in granting the initial stay: We are staying the rule as it relates to the method of allocating shared storage vessels and the requirements for connector monitoring because these were first introduced in the final rule (indeed, with respect to connector monitoring, we explicitly stated in the proposal that we did not intend to address them in this rulemaking). Accordingly, certain facilities may be out of compliance with requirements for which they had no notice or time to come into compliance. We are also staying the new definition for capital expenditure in 40 CFR part 60, subpart VVa, as it relates to projects at sources occurring prior to November 16, 2007. This new definition is different than the definition in the proposed 40 CFR part 60, subpart VV, and the resulting capital expenditure value may make sources that undertook changes between the proposal and final action into affected sources even though they would not have been under the previous definition and even though they had no notice of the change. While new source performance standards are generally applicable to units modified or reconstructed after the date of the proposal, we intend to seek comment on the appropriateness of such application here. As these reasons remain valid, we have decided to extend the limited stay for the remainder of our reconsideration process. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not impose any new information collection burden. This action results in no changes to the information collection requirements of the NSPS and will have no impact on the information collection estimate of project cost and hour burden made and approved by OMB. However, OMB has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 60, subparts VV and GGG under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, *et seq.* , and has assigned OMB control number 2060-0443, to the ICR for subpart VV and OMB control number 2060-0067, to the ICR for subpart GGG. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act 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 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 purposes of assessing the impacts of the equipment leak NSPS on small entities, small entity is defined as:

(1)A small business according to Small Business Administration size standards by the North American Industry Classification System (NAICS) category of the owning entity;

(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 that is independently owned and operated and is not dominant in its field. For the SOCMI, a small business ranges from less than 500 employees to less than 1,000 employees, depending on the NAICS code. For petroleum refiners, a small business has no more than 1,500 employees. After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action will not impose any requirements on any entities because it does not impose any additional regulatory requirements. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act

(UMRA)of 1995, 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 mandates” that may result in expenditures by 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 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, enabling officials of 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 governments on compliance with the regulatory requirements. EPA has determined that this action contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. This action imposes no enforceable duty on any State, local or tribal governments or the private sector. Thus, this action is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This rule only extends the stay of certain provisions and does not impose any additional enforceable duty. 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, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action 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. This action will not impose direct compliance costs on State or local governments, and will not preempt State law. Thus, Executive Order 13132 does not apply to this action. 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 action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because the equipment leak NSPS for SOCMI and petroleum refineries are based on technology performance. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) that are developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through OMB, with explanations when EPA does not use available and applicable voluntary consensus standards. EPA is not proposing to make any changes to the regulatory requirements in the final equipment leak NSPS in this action, including requirements that involve technical standards. As a result, the NTTAA discussion set forth in the November 16, 2007, final rule remains valid. The requirements of NTTAA, therefore, do not apply to this action. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 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 affect the level of protection provided to human health or the environment. 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 August 1, 2008. List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: May 15, 2008. Stephen L. Johnson, Administrator. For the reasons cited in the preamble, title 40, chapter I, part 60 of the Code of Federal Regulations is amended as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart VV—[Amended] 2. Section 60.480 is amended by adding paragraph

(f)to read as follows: § 60.480 Applicability and designation of affected facility.

(f)*Stay of standards* . Owners or operators are not required to comply with the definition of “process unit” in § 60.481 and the requirements in § 60.482-1(g) of this subpart until the EPA takes final action to require compliance and publishes a document in the **Federal Register** . While the definition of “process unit” is stayed, owners or operators should use the following definition: *Process unit* means components assembled to produce, as intermediate or final products, one or more of the chemicals listed in § 60.489 of this part. A process unit can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the product. § 60.481 [Amended] 3. In § 60.481, the definition for “process unit” is stayed from August 1, 2008 until further notice. § 60.482-1 [Amended] 4. In § 60.482-1, paragraph

(g)is stayed from August 1, 2008 until further notice. Subpart VVa—[Amended] 5. Section 60.480a is amended by adding paragraph

(f)to read as follows: § 60.480a Applicability and designation of affected facility.

(f)*Stay of standards.*

(1)Owners or operators that start a new, reconstructed, or modified affected source prior to November 16, 2007 are not required to comply with the requirements in this paragraph until EPA takes final action to require compliance and publishes a document in the **Federal Register** .

(i)The definition of “capital expenditure” in § 60.481a of this subpart. While the definition of “capital expenditure” is stayed, owners or operators should use the definition found in § 60.481 of subpart VV of this part.

(2)Owners or operators are not required to comply with the requirements in this paragraph until EPA takes final action to require compliance and publishes a document in the **Federal Register** .

(i)The definition of “process unit” in § 60.481a of this subpart. While the definition of “process unit” is stayed, owners or operators should use the following definition: *Process unit* means components assembled to produce, as intermediate or final products, one or more of the chemicals listed in § 60.489 of this part. A process unit can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the product.

(ii)The method of allocation of shared storage vessels in § 60.482-1a(g) of this subpart.

(iii)The standards for connectors in gas/vapor service and in light liquid service in § 60.482-11a of this subpart. § 60.481a [Amended] 6. In § 60.481a, the definitions of “capital expenditure” and “process unit” are stayed from August 1, 2008 until further notice. § 60.482-1a [Amended] 7. In § 60.482-1a, paragraph

(g)is stayed from August 1, 2008 until further notice. § 60.482-11a [Amended] 8. Section 60.482-11a is stayed from August 1, 2008 until further notice. Subpart GGG—[Amended] 9. Section 60.590 is amended by adding paragraph

(e)to read as follows: § 60.590 Applicability and designation of affected facility.

(e)*Stay of standards* . Owners or operators are not required to comply with the definition of “process unit” in § 60.590 of this subpart until the EPA takes final action to require compliance and publishes a document in the **Federal Register** . While the definition of “process unit” is stayed, owners or operators should use the following definition: *Process unit* means components assembled to produce intermediate or final products from petroleum, unfinished petroleum derivatives, or other intermediates; a process unit can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the product. § 60.591 [Amended] 10. In § 60.591, the definition of “process unit” is stayed from August 1, 2008 until further notice. Subpart GGGa—[Amended] 11. Section 60.590a is amended by adding paragraph

(e)to read as follows: § 60.590a Applicability and designation of affected facility.

(e)*Stay of standards.* Owners or operators are not required to comply with the definition of “process unit” in § 60.590 of this subpart until the EPA takes final action to require compliance and publishes a document in the **Federal Register** . While the definition of “process unit” is stayed, owners or operators should use the following definition: *Process unit* means components assembled to produce intermediate or final products from petroleum, unfinished petroleum derivatives, or other intermediates; a process unit can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the product. § 60.591a [Amended] 12. In § 60.591a, the definition of “process unit” is stayed from August 1, 2008 until further notice. [FR Doc. E8-11400 Filed 5-30-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2006-0699; FRL-8569-1] RIN 2060-AO90 Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry; Standards of Performance for Equipment Leaks of VOC in Petroleum Refineries AGENCY: Environmental Protection Agency (EPA). ACTION: Interim final rule; stay. SUMMARY: EPA is making an interim final determination to extend the stay of certain requirements in the standards of performance for equipment leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry (SOCMI) and Petroleum Refineries. DATES: This interim final determination is effective on June 2, 2008 and will expire on August 1, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2006-0699. All documents in the docket are listed in the Federal Docket Management System index at *www.regulations.gov.* Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(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 through *www.regulations.gov* or in hard copy at the Air and Radiation Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air and Radiation Docket is

(202)566-1742. FOR FURTHER INFORMATION CONTACT: Ms. Karen Rackley, Coatings and Chemicals Group, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (E143-01), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number:

(919)541-0634; fax number:

(919)541-0246; e-mail address: *rackley.karen@epa.gov* . SUPPLEMENTARY INFORMATION: *Regulated Entities.* Categories and entities potentially regulated by this action are synthetic organic chemicals manufacturers and petroleum refineries. The New Source Performance Standards

(NSPS)for equipment leaks of VOC in SOCMI and petroleum refineries affect the following categories of sources: Category NAICS code 1 Examples of potentially regulated entities Industry 324110 Petroleum refiners. Primarily 325110, 325192, 325193, and 325199 Synthetic organic chemical manufacturing industry (SOCMI) units, e.g., producers of benzene, toluene, or any other chemical listed in 40 CFR 60.489. 1 North American Industrial Classification Code. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the final amendments and new standards for equipment leaks of VOC in SOCMI and petroleum refineries. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR 60.480, 60.590, 60.480a, and 60.590a. If you have any questions regarding the applicability of the NSPS to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of the final rule is available on the WWW through the Technology Transfer Network (TTN). Following signature, EPA will post a copy of the final rule on the TTN's policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. *Organization of This Document.* The following outline is provided to aid in locating information in this preamble. I. Background Information II. What action is EPA taking? III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act 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 Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Background Information On November 16, 2007, EPA promulgated amendments and established new standards of performance for equipment leaks of VOC in the SOCMI and Petroleum Refineries (72 FR 64860). Following the promulgation of the final amendments and new standards for these industries, EPA received a petition for reconsideration on January 15, 2008 from the American Chemistry Council (ACC), the American Petroleum Institute (API), and the National Petrochemical and Refiners Association

(NPRA)(“Petitioners”). The petitioners, pursuant to CAA section 307(d)(7)(B), requested EPA reconsider four provisions in the rules:

(1)The clarification of the definition of process unit in subparts VV, VVa, GGG, and GGGa;

(2)the assigning of shared storage tanks to specific process units in subparts VV, VVa, GGG, and GGGa;

(3)the connecter monitoring requirements in subpart VVa; and

(APA)in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(3)). EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. EPA has stated in our letter to the Petitioners the reasons for granting the 90-day stay. As these reasons remain valid, we believe it is still appropriate for the stay to be in effect until we have reached a final decision on the reconsideration. Because the initial stay expires on June 1, 2008 and the direct final action would not be effective until 60 days after publication, it is not in the public's best interest to require compliance with the rules as published during the gap between the two dates. Therefore, EPA believes that it is necessary to use the interim final rulemaking process to extend the initial stay while the public has an opportunity to comment on the direct final action. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not impose any new information collection burden. This action results in no changes to the information collection requirements of the NSPS and will have no impact on the information collection estimate of project cost and hour burden made and approved by OMB. However, OMB has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 60, subparts VV and GGG under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, *et seq.* , and has assigned OMB control number 2060-0443, to the ICR for subpart VV and OMB control number 2060-0067, to the ICR for subpart GGG. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act Today's interim final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act

(APA)or any other statute. This rule is not subject to notice and comment requirements under the APA or any other statute because although the rule is subject to the APA, the Agency has invoked the “good cause” exemption under 5 U.S.C. 553(b), therefore it is not subject to the notice and comment requirement. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act

(UMRA)of 1995, 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 mandates” that may result in expenditures by 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 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, enabling officials of 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 governments on compliance with the regulatory requirements. EPA has determined that this action contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, or tribal governments or the private sector. This action imposes no enforceable duty on any State, local or tribal governments or the private sector. Thus, this action is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This rule only extends the stay of certain provisions and does not impose any additional enforceable duty. 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, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action 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. This action will not impose direct compliance costs on State or local governments, and will not preempt State law. Thus, Executive Order 13132 does not apply to this action. 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 action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because the equipment leak NSPS for SOCMI and petroleum refineries are based on technology performance. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) that are developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through OMB, with explanations when EPA does not use available and applicable voluntary consensus standards. EPA is not proposing to make any changes to the regulatory requirements in the final equipment leak NSPS in this action, including requirements that involve technical standards. As a result, the NTTAA discussion set forth in the November 16, 2007, final rule remains valid. The requirements of NTTAA, therefore, do not apply to this action. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 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 affect the level of protection provided to human health or the environment. 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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of June 2, 2008. 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** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: May 15, 2008. Stephen L. Johnson, Administrator. For the reasons cited in the preamble, title 40, chapter I, part 60 of the Code of Federal Regulations is amended as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart VV—[Amended] 2. Section 60.480 is amended by adding paragraph

(f)to read as follows: § 60.480 Applicability and designation of affected facility.

(f)*Stay of standards.* Owners or operators are not required to comply with the definition of “process unit” in § 60.481 and the requirements in § 60.482-1(g) of this subpart until August 1, 2008. While the definition of “process unit” is stayed, owners or operators should use the following definition: *Process unit* means components assembled to produce, as intermediate or final products, one or more of the chemicals listed in § 60.489 of this part. A process unit can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the product. § 60.481 [Amended] 3. In § 60.481, the definition for “process unit” is stayed from June 2, 2008 until August 1, 2008. § 60.482-1 [Amended] 4. In § 60.482-1, paragraph

(g)is stayed from June 2, 2008 until August 1, 2008. Subpart VVa—[Amended] 5. Section 60.480a is amended by adding paragraph

(f)to read as follows: § 60.480a Applicability and designation of affected facility.

(f)*Stay of standards* .

(1)Owners or operators that start a new, reconstructed, or modified affected source prior to November 16, 2007 are not required to comply with the requirements in this paragraph until August 1, 2008.

(2)Owners or operators are not required to comply with the requirements in this paragraph until August 1, 2008.

(ii)The method of allocation of shared storage vessels in § 60.482-1a(g) of this subpart.

(iii)The standards for connectors in gas/vapor service and in light liquid service in § 60.482-11a of this subpart. § 60.481a [Amended] 6. In § 60.481a, the definitions of “capital expenditure” and “process unit” are stayed from June 2, 2008 until August 1, 2008. § 60.482-1a [Amended] 7. In § 60.482-1a, paragraph

(g)is stayed from June 2, 2008 until August 1, 2008. § 60.482-11a [Amended] 8. § 60.482-11a is stayed from June 2, 2008 until August 1, 2008. Subpart GGG—[Amended] 9. Section 60.590 is amended by adding paragraph

(e)to read as follows: § 60.590 Applicability and designation of affected facility.

(e)to read as follows: § 60.590a Applicability and designation of affected facility.

(e)*Stay of standards* . Owners or operators are not required to comply with the definition of “process unit” in § 60.590 of this subpart until August 1, 2008. While the definition of “process unit” is stayed, owners or operators should use the following definition: *Process unit* means components assembled to produce intermediate or final products from petroleum, unfinished petroleum derivatives, or other intermediates; a process unit can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the product. § 60.591a [Amended] 12. In § 60.591a, the definition of “process unit” is stayed from June 2, 2008 until August 1, 2008. [FR Doc. E8-11383 Filed 5-30-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 300 and 635 [Docket No. 080221247-8524-02] RIN 0648-AU88 International Fisheries; Atlantic Highly Migratory Species; International Trade Permit Program; Bluefin Tuna Catch Documentation Program AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS is modifying permitting and reporting requirements for the Highly Migratory Species

(HMS)International Trade Permit

(ITP)program to improve program efficacy and enforceability, and implement the International Commission for the Conservation of Atlantic Tunas (ICCAT) bluefin tuna catch documentation

(BCD)program. The modified regulations also implement the new definition of “import” contained in the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and require that shark fin importers, exporters, and re-exporters obtain the HMS ITP to assist NMFS in monitoring trade of shark fins. This action is necessary to implement recommendations of ICCAT, as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Act. DATES: Effective July 2, 2008. ADDRESSES: Supporting documents, including the Regulatory Impact Review/Final Regulatory Flexibility Analysis (RIR/FRFA), are available from the Federal e-Rulemaking Portal: *http://www.regulations.gov* , or Dianne Stephan, Highly Migratory Species Management Division, Office of Sustainable Fisheries (F/SF1), NMFS, One Blackburn Dr., Gloucester, MA 01930. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS at the address above, and by email to *David_Rostker@omb.eop.gov* , or fax to

(202)395-7285. FOR FURTHER INFORMATION CONTACT: Dianne Stephan, 978-281-9260. SUPPLEMENTARY INFORMATION: Background The United States, which includes the Commonwealth of Puerto Rico, American Samoa, the U.S. Virgin Islands, Guam, and all other U.S. commonwealths, territories, or possessions, is a member of the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Inter-American Tropical Tuna Commission (IATTC). Under ATCA, the Secretary of Commerce is authorized to implement ICCAT recommendations, as necessary or appropriate. Likewise, the Tunas Convention Act authorizes rulemaking to carry out recommendations of the IATTC. The United States has implemented statistical document programs under the HMS ITP program regulations per recommendations of ICCAT, IATTC, and other regional fishery management organizations (RFMOs). This rule replaces the ICCAT bluefin tuna statistical document program with the initial implementation of the ICCAT BCD program recommended at the 2007 ICCAT annual meeting. Other objectives of the rule are to adjust the HMS ITP regulatory program, as informed by NMFS and industry experiences since the program was implemented, and to adopt the new definition of import contained in the Magnuson-Stevens Act. Lastly, the rule requires permitting of shark fin traders under the HMS international trade regulations to help NMFS monitor trade of shark fins. Background information about the need for the final rule was provided in the preamble to the proposed rule (73 FR 18473, April 4, 2008) and is not repeated here. Changes from the Proposed Rule A description of the alternatives for the actions in this final rule was included in the preamble of the proposed rule, and is not repeated here. Other than minor technical corrections, this final rule does not include any changes from the proposed rule. Additional information can be found in the RIR/FRFA available from NMFS (see ADDRESSES ). Comments and Responses Five public hearings were announced in the proposed rule (73 FR 18473, April 4, 2008) and held during the public comment period, which ended on May 5, 2008. The public hearings were held in the following locations: Santa Rosa, CA (April 23, 2008), Long Beach, CA (April 24, 2008), Gloucester, MA (April 25, 2008), Miami, FL (April 28, 2008) and Panama City, FL (April 29, 2008). In addition, the HMS Advisory Panel was briefed about the proposed rule on April 16, 2008. The agency received five written comments and many verbal comments at the public hearings and Advisory Panel meeting. A summary of public comments, followed by NMFS' responses to each comment, is provided below. *Comment 1:* Several commentors stated that shark fin traders could provide valuable information and should be required to report. *Response:* The final rule requires permitting for shark fin traders without additional reporting requirements at this time. NMFS considered additional reporting requirements for shark fin traders beyond the reporting already required by other state and/or Federal agencies, but determined that permit requirements alone would be an effective initial step in achieving the rule's objective to further understand the international trade aspects of the industry. The Agency may consider additional reporting requirements at a later date, with due notice and opportunity for public comment. *Comment 2:* One commenter stated that U.S. bluefin tuna re-exporters are assigned an unfair reporting burden for re-export of untagged bluefin tuna relative to the bluefin tuna trade industry in other nations. The United States is one of the few countries that tags every exported fish, which results in a reduced burden for re-exporters in other nations. The U.S. industry carries more reporting burden than industry members in other countries. *Response:* The final rule requires that re-exporters of untagged bluefin tuna provide copies of completed re-export certificates and associated documentation to the ICCAT Secretariat and competent authorities of importing nations at provided addresses. NMFS included this requirement since ICCAT Recommendation 07-10 specifically requires all nations, including the United States, to conduct such reporting. However, the United States' sophisticated catch monitoring program, which includes tagging every Atlantic bluefin tuna domestically and commercially harvested, exempts U.S. industry members from certain other parts of the ICCAT Recommendation 07-10 BCD program. NMFS will continue to work with ICCAT to balance the burden of international fisheries management fairly among participating nations. Overall, the reporting requirements of the ICCAT BCD program that must be implemented by the United States have been mitigated and reduced because of the U.S. programs currently in place. *Comment 3:* A commentor stated that the proposed rule and regulatory program are complex, and the public comment period should be extended and more public hearings should be held on the east coast. *Response:* NMFS did not extend the public comment period for this rulemaking or add public hearings to those announced with the proposed rule. NMFS worked to balance its obligations of meeting the international implementation deadline for the ICCAT BCD program while also conducting extensive public outreach with email, direct mail, and public hearings on both the Atlantic and Pacific coasts. NMFS undertook mailings to current permit holders and shark fin importers, and held public hearings in five locations that were chosen based on industry participation during the previous ITP rulemaking (69 FR 67268, November 17, 2004). The Atlantic HMS Advisory Panel was briefed on April 16, 2008. Further, documentation associated with this rulemaking was available on NMFS websites and *www.regulations.gov* . ICCAT adopted the BCD recommendation at the end of November 2007 and required its implementation by July 1, 2008. U.S. businesses desiring to export bluefin tuna to foreign markets could be negatively impacted if the BCD program was not in place by the required implementation date. *Comment 4:* One ITP holder asked what type of document would be necessary for bluefin tuna imports into the United States originating from South Africa. *Response:* The type of documentation required would depend upon the species of bluefin tuna traded. Southern bluefin tuna are found through the Southern Ocean, south of 30? South latitude. The final rule requires that an ICCAT BCD accompany any shipment of Atlantic bluefin tuna into the United States. The Commission for the Conservation of Southern Bluefin Tuna's statistical document continues to be required for imports of southern bluefin tuna into the United States. *Comment 5:* One commentor noted that there are “transfer houses” in Boston that receive product from Canadian importers, but do not appear to be required to report any information to NMFS. One permit holder stated that they had experienced a greater degree of enforcement attention from NMFS. Several permit holders requested that the “playing field between businesses be level” regarding reporting burden and enforcement activity. One of these permit holders stated that NMFS enforcement personnel may pay more attention to their company because of its large size. *Response:* The final rule maintains the previous requirement that the importer, which is defined as the consignee as listed on entry documentation required by Customs and Border Protection, must hold an ITP and abide by reporting requirements. If a non-resident corporation is listed as the consignee, then a resident agent is required to hold the permit and fulfill reporting requirements. All permit holders are equally responsible for abiding by applicable regulations. The NOAA Fisheries Office of Law Enforcement

(OLE)investigates violations of the regulations promulgated by NOAA, based on the individual facts and circumstances of each case. *Comment 6:* Several ITP holders expressed concern that they would be held responsible for imports from other countries that appeared to be legal, but were later determined to be illegal, unregulated, unreported

(IUU)product, or product that came with falsified statistical documents that appeared to be legal upon import. *Response:* HMS ITP holders are responsible for the reporting requirements and administrative recordkeeping articulated in the ITP regulations. Violations of the regulations promulgated by NOAA, including instances of ITP dealer non-compliance, will be examined by OLE on a case-by-case basis, based on the individual facts and circumstances of each case. *Comment 7:* One commentor requested that there be internationally agreed upon methods for numbering consignment documents and for format of documents to assist importers in identifying illegal product. *Response:* ICCAT Recommendation 07-10 requires that each BCD have a unique document identification number specific to the flag state. A circular from ICCAT (Circular #569/08) dated April 14, 2008, recommended a numbering convention for BCDs that would use 8 digits which include the country code and year of capture, followed by a unique, sequentially assigned number. The final rule states at § 300.186(b): “A nationally approved form from another country may be used for exports to the United States if that document strictly conforms to the information requirements and format of the applicable RFMO.” *Comment 8:* Several permit holders stated that they were supportive of the increasing international role the United States is taking in reducing IUU fishing. *Response:* One of the purposes of ICCAT's BCD program is to more accurately account for stock landings and help reduce IUU fishing. In addition, the Magnuson-Stevens Act includes several provisions to reduce IUU fishing. NMFS published an advance notice of proposed rulemaking on June 11, 2007 (72 FR 32052) and is currently drafting a proposed rule to implement these provisions. *Comment 9:* Current ITP holders commented on several operational aspects of the trade monitoring program which were not addressed in this rulemaking, in reference to swordfish imports. The issues raised included the following: 1) most swordfish import statistical documents are received by fax rather than original documents, and some arrive three days after the consignment has been accepted in the United States; 2) because of the amount of swordfish imported into the United States, the trade monitoring requirements as written for swordfish are overly burdensome; and 3) flexibility is needed in the format of biweekly report forms. In addition, several comments were provided on shark and shark fin fishery management. *Response:* These issues are outside the scope of this rulemaking and amendment to the ITP regulations. However, the current ITP regulations require that imports of swordfish, bluefin tuna, southern bluefin tuna, and frozen bigeye tuna be accompanied by original statistical documents which are provided to NMFS if the United States is the final point of import. Biweekly reports are required to be submitted to NMFS on forms provided by NMFS. NMFS may consider future modifications of the HMS ITP regulations, including further consideration of these comments. NMFS is in the process of coordinating with Customs and Border Protection to implement the International Trade Data System which is expected to modify NMFS import and trade-monitoring programs. An advanced notice of proposed rulemaking on this issue is expected to be published in the **Federal Register** during 2008. Classification The NMFS Assistant Administrator

(AA)has determined that this final rule is consistent with the Consolidated HMS FMP, the Magnuson-Stevens Act, the ATCA, the TCA, and other applicable law. The AA has determined that this final rule is necessary to implement the recommendations of ICCAT and IATTC, and is necessary for the management of bluefin tuna, bigeye tuna, swordfish, and sharks. This final rule has been determined to be not significant for purposes of Executive Order 12866. A final regulatory flexibility analysis

(FRFA)was prepared. The FRFA incorporates the initial regulatory flexibility analysis, a summary of the significant issues raised by the public, and NMFS responses to those comments. The FRFA describes the economic impacts this final rule could have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of the preamble and the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES ). The actions in this final rule could affect approximately 406 Atlantic Tunas Dealer Permit

(ATDP)holders, 230 HMS ITP holders, and approximately 100 individuals who participate in international trade of shark fins, all of which are considered small entities. According to the RFA, a wholesale fish business is defined as a small entity if it employs 100 or fewer. Impacts to these entities could occur in two areas - permitting and reporting. NMFS expects only minor negative economic impacts from the final rule because the final measures only involve adjusting the permitting and reporting requirements. A description of the alternatives, associated requirements, and estimated costs follows. The issues addressed in the final rule are subdivided into three categories: “permitting,” “reporting” and “regulatory structure and clarification.” Only two of the issues under the category of “permitting” include alternatives that could have economic impacts. For the issue of identification of the entity responsible for obtaining the HMS ITP in importing situations, and thus for fulfilling subsequent reporting requirements, the “No Action” alternative is the final action. The final rule continues to require the consignee as indicated in CBP import documentation to be the responsible party for obtaining the ITP. This alternative was chosen to for enforcement purposes since the consignee would be the actual receiver of the consignment, and would have an address within the United States. The annual costs associated with this action are the costs associated with permitting (including the cost of the permit, mailing costs and time for filling out the application - estimated at $26.75 per applicant) and the cost of reporting (including filling out and submitting the report forms - estimated at $102 per dealer for biweekly reports and $94 per dealer for trade tracking documentation, for a total of $196 per dealer). Alternative Two would require that the consignee on the bill of lading obtain an HMS ITP in addition to the consignee on CBP entry documentation, and was not chosen because it would have resulted in duplicative reporting. The overall negative economic impact for this alternative would increase based on the number of consignees identified on import bills of lading that differ from consignees on CBP documentation. NMFS estimates the cost of this alternative to be twice that of the final action, assuming that there is one additional permit holder for each current permit holder. Costs per dealer would be the same as for the final action. For Alternative Three, which would require the importer of record to obtain the HMS ITP, economic impacts are estimated to be approximately the same as the final action, using the assumption that there would be approximately the same number of importers of record identified on CBP entry documentation as consignees for consignments of products addressed under HMS ITP regulations. This alternative was not selected because importers of record can be foreign-based companies, which could impede enforcement. The second permitting issue with alternatives that could have economic impacts is shark fin trader permitting. The final action requires that shark fin traders obtain an HMS ITP. This alternative was chosen to obtain information on the shark fin trade industry and support regulatory enforcement. NMFS anticipates that approximately 100 entities are expected to require the HMS ITP for shark fin trading. Since there would be no reporting requirements associated with this permit, the only annual costs are for obtaining the permit ($26.75 per dealer). The other alternative considered for this issue was the “No Action” Alternative, with neither permitting nor reporting costs for shark traders. This alternative was not selected because it would not provide the information needed on shark fin trading or support regulatory enforcement. The second category of issues addressed in the final rule is under the heading of “Reporting.” None of the alternatives for these issues would change the number of entities required to obtain an HMS ITP, so there would be no permitting-related costs for any of these issues. The first issue under the category of “Reporting” that has reporting-associated economic impacts includes alternatives that would adjust reporting requirements for when and how report submission would be required. Alternative One is the “No Action” alternative, and would not change any reporting regulations or associated annual costs, which are estimated at $196 per dealer. This alternative was not chosen because the current use of a postmark does not ensure that NMFS has received the report in a timely fashion. Alternative Two would rescind the requirement for copies of import statistical documents to be faxed to NMFS within 24 hours of receipt by an importer. This alternative was not selected because NMFS requires the opportunity to review import statistical documents as close to the time of import as possible. The regulation requiring the permit holder to fax the document to NMFS within 24 hours balances the need for NMFS to be promptly notified of the import with providing the permit holder a reasonable amount of time to complete the document. This alternative would provide a slightly positive economic benefit in the form of a slightly reduced time burden for import reporting. Dealers would still be required to fill out and mail import statistical documents twice per month. The final action (Alternative 3) would adjust HMS ITP and ATDP reporting regulations to use a “received-by” date rather than a postmark date for determining dealer compliance with required report submittal schedules. The ITP regulations would also be clarified to indicate when use of a fax machine would be an acceptable method for submitting a report. This alternative was chosen because it establishes consistency within HMS regulations by using the “received-by” date to ensure NMFS receives the report by a date certain, and provides for all report submission alternatives, including faxes. It also retains the 24-hour reporting requirement for enforcement purposes. This alternative is expected to have no economic consequences, since it would not impact reporting frequency. The second reporting-related issue considers alternatives to initially implement ICCAT Recommendation 07-10 and the new BCD program. The final action implements the program for commercial U.S. Atlantic bluefin tuna fisheries and bluefin tuna imports, exports and re-exports as part of a program that will apply to all ICCAT member nations. This alternative was chosen to keep the United States in compliance with the ICCAT Recommendation, and ensure that U.S. product would be accepted for import by other ICCAT member nations. The BCD program requires the use of new forms with fields similar to the ICCAT bluefin tuna statistical document that was in place before the BCD program was implemented. The change in reporting burden will only affect HMS ITP holders that re-export untagged bluefin tuna. When re-exporting an untagged bluefin tuna, the HMS ITP holder is required to send a copy of the re-export certificate to the ICCAT Secretariat and importing nation within five working days via addresses and information provided by NMFS. The costs per transaction could range from zero for electronic transmission of the documents, to approximately $100 for mailing, for an average of $50 per transaction. In 2006, 17 consignments would have been subject to this additional cost. In addition, a time burden of .25 hours per consignment would have resulted in an additional 4.25 aggregate hours for a total annual cost of $64, or $3.75 per transaction. There would be no additional costs for the No Action alternative, with current annual average costs for statistical document program reporting at $196 per dealer. The No Action alternative was not selected because it would result in the United States being out of compliance with ICCAT recommendations, and would hinder export of U.S. product to ICCAT member nations. The last issue under this category addresses reporting of Atlantic bluefin tuna exports. The final action provides a positive economic impact, reducing the current reporting burden for individuals who hold both an ATDP and HMS ITP by clarifying that bluefin tuna exports would only need to be reported on one biweekly report. This alternative was chosen because it ensures the reporting burden for export of domestically landed Atlantic bluefin tuna is not duplicative with landing reporting requirements. This action could positively affect the 64 individuals who concurrently hold an ATDP and HMS ITP and could save an estimated $51 per dealer per year. In addition, the final action could reduce the reporting burden for HMS ITP holders who purchase bluefin tuna from an ATDP holder, with an estimated savings similar to those for individuals holding both permits. Alternative One, the “No Action” alternative, would continue to require reporting for both permits, and is estimated to cost each impacted dealer approximately $102 per year. Alternative Two would require that operational procedures were adjusted to mirror the current regulations. Neither of these alternatives were selected because each had a higher overall reporting burden than the final action. The economic impact of Alternative Two would be the same as that estimated for the “No Action” alternative. The last category of issues addressed in the final rule is “Regulatory Structure and Clarification,” and includes two issues that could have economic consequences. The first issue is the implementation of the new definition of “import” included in the Magnuson-Stevens Act as amended by the Magnuson-Stevens Reauthorization Act. Both the “No Action” Alternative and the final action would have the same economic consequences, which would be the permitting and reporting costs associated with the current HMS ITP program, averaged at $222.75 per dealer per year. The final action was selected because it is consistent with the Magnuson-Stevens Act, and continues to clearly articulate the applicability of HMS ITP program regulations to shipments between the United States and its insular possessions. The “No Action” Alternative was not selected because it is not consistent with the Magnuson-Stevens Act. The second alternative would adopt the Magnuson-Stevens Act definition of “import,” without distinguishing that consignments between the United States and its insular possessions with separate customs territories would be considered domestic interactions, as intended by RFMO consignment programs. This alternative was not selected because it would unnecessarily increase reporting burdens. If such consignments required permitting and reporting under the HMS ITP program, negative economic consequences would occur which are currently unknown but, based in part on the amount of product and number of participating dealers, are expected to be minor in nature. For example, an average of four consignments from Guam to ports under U.S. Customs authority have occurred each year from 2002 through 2007. The estimated annual impact per dealer (approximately four dealers) would be $223. The last issue considered in this final rule that could have economic impacts addresses the verification of foreign validating officials for imports. The final rule includes no regulatory changes for this issue. Under the Preferred Alternative, NMFS would pursue further international coordination on this issue, and there would be no economic related consequences. This alternative was selected to mitigate reporting burden for U.S. businesses and further coordinate international action for this issue. Likewise, the “No Action” Alternative would not have economic consequences since it does not require any current or additional action. This alternative was not selected because it would not provide a way to verify validating authorities. Alternative Two could have considerable negative economic consequences since it would require that importers check the password-protected ICCAT website to determine whether validating officials are authorized government representatives. This alternative would require computer hardware and software with Internet access. Alternative Two was not selected because it is unclear whether it is consistent with the intent of the ICCAT statistical document program. Fishermen, fish dealer permit holders, and fishery managers involved in these fisheries must comply with a number of international agreements, domestic laws, regulations and FMPs. These include, but are not limited to, ICCAT, the Magnuson-Stevens Act, ATCA, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. NMFS strives to ensure consistency among the regulations with Regional Fishery Management Councils and other relevant agencies. NMFS does not believe that the final rule would conflict with any relevant regulations, federal or other. One of the requirements of FRFA is to describe any alternatives to the proposed rule which accomplish the stated objectives and which minimize any significant economic impacts. Economic impacts are discussed above and below. Additionally, the RFA Section 603(c)(1)-(4)) lists four categories of options which should be discussed. These categories are:

(1)establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

(2)clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;

(3)use of performance rather than design standards; and

(4)exemptions from coverage of the rule for small entities. Under the first and fourth categories listed above, NMFS considers all dealers to be “small entities.” Thus, in order to meet the objectives of this final rule and address management concerns, NMFS cannot exempt small entities or change the reporting requirements for small entities. Category Two includes options for clarifying, simplifying, and consolidating compliance and reporting requirements for small entities. Many of the measures in this final rule satisfy the goal of Category Two by simplifying or clarifying the existing dealer permitting or reporting structure in several instances, and by seeking further international clarity for several issues that cannot be implemented under the current program. Specifically, the final rule clarifies who is the entity responsible for obtaining the HMS ITP in cases involving foreign importers and would synchronize requirements between HMS ITPs and NMFS regional permits. Although alternatives are considered for modifying the entity responsible for obtaining a permit based on CBP entry documentation, the final rule does not modify the current regulations, which is the simplest of the alternatives considered. The final rule reduces and simplifies reporting requirements so that reporting may be combined in certain instances when an individual holds both the HMS ITP and the ATDP, which have similar reporting requirements. A dealer holding one of these permits can also coordinate with a dealer who handles the same individual bluefin tuna but holds the other corresponding permit. The final rule also clarifies the use of faxes for report submission and would further consistency with other HMS regulations by establishing the “received by” date as the date used for compliance determinations. There would be some increase in reporting burden and cost because of the requirement for international communication of consignment documents directly to the ICCAT secretariat and importing nation's government agency, however costs should be minimized since affected businesses are encouraged to submit the required documentation electronically. The final rule also directly addresses issues of regulatory structure and clarification. The final rule updates certain HTS codes and serves in part to clarify reporting. The final rule also adopts the Magnuson-Stevens Act definition of import, with a clarifying caveat that consignments of affected product between insular possessions and the United States are not considered imports. Finally, the final rule clarifies that the regulatory requirements in 50 CFR part 300 subpart M apply to all entities engaging in covered activities, rather than just those who obtain the required permit. Alternatives for verification of validating authorities are also considered, but because of technical difficulties, no action requiring verification of validation is included in the final rule. The third category identified in the RFA, “use of performance rather than design standards,” is not applicable, since ICCAT has very specific requirements for implementation of the trade tracking programs addressed in this action. Although the shark fin trade is not currently covered by an ICCAT recommendation, in order to address Category Two and maintain a simple structure for HMS trade permits, shark fin traders are required to obtain an HMS ITP under the final rule. This final rule contains revisions to collection-of-information requirements subject to the Paperwork Reduction Act which have been previously approved by OMB under the HMS Permitting Family of Forms (0648-0327) and the HMS Dealer Reporting Family of Forms (0648-0040). In the HMS Permitting Family of Forms, the instrument being revised is the application for the HMS ITP for Atlantic coast dealers that import, export, or re-export bluefin tuna, southern bluefin tuna, frozen bigeye tuna, and swordfish, the public reporting burden for which is estimated at 0.08 hours (5 minutes) per response. In the HMS Dealer Reporting Family of Forms, the instruments being revised are the bluefin tuna statistical document and re-export certificate, the public reporting burden for which is estimated at .08 hours (5 minutes) per form. The statistical document will be replaced by a catch document with an equivalent reporting burden. The reporting burden for re-exports of untagged bluefin tuna is estimated to be an additional .25 hours (15 minutes) per form. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden to NMFS (see ADDRESSES ) and by email to *David_Rostker@omb.eop.gov* , or fax to

(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. List of Subjects 50 CFR Part 300 Administrative practice and procedure, Exports, Fish, Fisheries, Fishing, Imports, Reporting and recordkeeping requirements, Treaties. 50 CFR Part 635 Fisheries, Fishing, Fishing vessels, Imports, Reporting and recordkeeping requirements, Treaties. Dated: May 27, 2008. Samuel D. Rauch III Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set out in the preamble, 50 CFR part 300 subpart M and part 635 are amended as follows: Chapter III PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart M—International Trade Documentation and Tracking Programs for Highly Migratory Species 1. The authority citation for subpart M of part 300 continues to read as follows: Authority: 16 U.S.C. 951-961 and 971 *et seq.* ; 16 U.S.C. 1801 *et seq.* 2. In § 300.181, the definitions for “Fish or fish products regulated under this subpart”, “Import”, and “Tag” are revised, and the definitions of “BCD tag”, “Bluefin Tuna Catch Document (BCD)”, “Consignment document”, “Consignment documentation programs”, “Shark fin”, “Statistical document”, and “Statistical document program” are added in alphabetical order to read as follows: § 300.181 Definitions. *BCD tag* means a numbered tag affixed to a bluefin tuna issued by any country in conjunction with a catch statistics information program and recorded on a BCD. *Bluefin Tuna Catch Document (BCD)* means a bluefin tuna catch document issued by a nation implementing the ICCAT bluefin tuna catch documentation program. *Consignment document* means either an ICCAT Atlantic BCD or a catch document issued by a nation to comply with the ICCAT BCD program; or an ICCAT, IATTC, IOTC, or CCSBT statistical document or a statistical document issued by a nation to comply with such statistical document programs. *Consignment documentation programs* means the ICCAT, IOTC, IATTC or CCSBT catch document or statistical document programs. *Fish or fish products regulated under this subpart* means bluefin tuna, frozen bigeye tuna, southern bluefin tuna and swordfish and all such products of these species, except parts other than meat (e.g., heads, eyes, roe, guts, and tails), and shark fins. *Import* means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing or introduction constitutes an importation within the meaning of the customs laws of the United States. Import, for purposes of this subpart, does not include any activity described in the previous sentence with respect to fish caught in the exclusive economic zone or by a vessel of the United States. For purposes of this subpart, goods brought into the United States from a U.S. insular possession, or vice-versa, are not considered imports. *Shark fin* , for purposes of this subpart, means any fin removed from a shark, which is an animal of the Linnaean taxonomic superorder Selachimorpha, subclass Elasmobranchii, class Chondrichthyes. *Statistical document* means an ICCAT, IATTC, IOTC, or CCSBT statistical document, or a statistical document issued by a nation to comply with such statistical document programs. *Statistical document program* means either the ICCAT, IOTC, IATTC or CCSBT statistical document program. *Tag* means either a dealer tag or a BCD tag. 3. In § 300.182, paragraphs (a),

(b)and

(c)are revised to read as follows: § 300.182 HMS international trade permit.

(a)*General.* An importer, entering for consumption fish or fish products regulated under this subpart from any ocean area into the United States, or an exporter exporting or re-exporting such product, must possess a valid trade permit issued under this section. Importation of fish or fish products regulated under this subpart by nonresident corporations is restricted to those entities authorized under 19 CFR 141.18. A resident agent or resident corporate surety provider, as specified under 19 CFR 141.18, must possess a valid trade permit when acting on behalf of a nonresident corporation when entering for consumption, exporting, or re-exporting fish or fish products regulated under this subpart from any ocean area.

(b)*Application.* A person must apply for a permit in writing on an appropriate form obtained from NMFS. The application must be completed, signed by the applicant, and submitted with required supporting documents, at least 30 days before the date on which the applicant wants to have the permit made effective. Application forms and instructions for their completion are available from NMFS.

(c)*Issuance.* NMFS will notify the applicant of any deficiency in the application, including failure to provide information or reports required under this subpart. If the applicant fails to correct the deficiency within 30 days following the date of notification, the application will be considered abandoned. 4. Section 300.183 is revised to read as follows: § 300.183 Permit holder reporting and recordkeeping requirements.

(a)*Biweekly reports.* Any person required to obtain a trade permit under § 300.182 must submit to NMFS, on forms supplied by NMFS, a biweekly report of entries for consumption, exports and re-exports of fish and fish products regulated under this subpart except shark fins.

(1)The report required to be submitted under this paragraph

(a)must be received within 10 days after the end of each biweekly reporting period in which fish or fish products regulated under this subpart except shark fins were entered for consumption, exported, or re-exported. The bi-weekly reporting periods are the first day to the 15 th day of each month, and the 16 th day to the last day of each month.

(2)Each report must specify accurately and completely the requested information for each consignment of fish or fish products regulated under this subpart, except shark fins, that is entered for consumption, exported, or re-exported.

(3)A biweekly report is not required for export consignments of bluefin tuna when the information required on the biweekly report has been previously supplied on a biweekly report submitted under § 635.5(b)(2)(i)(B) of this title, provided the person required to obtain a trade permit under § 300.182 retains, at his/her principal place of business for a period of 2 years from the date on which each report was submitted to NMFS, a copy of the biweekly report which includes the required information and is submitted under § 635.5(b)(2)(i)(B) of this title.

(b)*Recordkeeping.* Any person required to obtain a trade permit under § 300.182 must retain, at his/her principal place of business, a copy of each biweekly report and all supporting records for a period of 2 years from the date on which each report was submitted to NMFS.

(c)*Other requirements and recordkeeping requirements.* Any person required to obtain a trade permit under § 300.182 is also subject to the reporting and recordkeeping requirements identified in § 300.185.

(d)*Inspection.* Any person authorized to carry out the enforcement activities under the regulations in this subpart (authorized person) has the authority, without warrant or other process, to inspect, at any reasonable time: fish or fish products regulated under this subpart, biweekly reports, statistical documents, catch documents, re-export certificates, relevant sales receipts, import and export documentation, and any other records or reports made, retained, or submitted pursuant to this subpart. A permit holder must allow NMFS or an authorized person to inspect and copy, for any fish or fish products regulated under this subpart, any import and export documentation and any reports required under this subpart, and the records, in any form, on which the completed reports are based, wherever they exist. Any agent of a person issued a trade permit under this part, or anyone responsible for importing, exporting, storing, packing, or selling fish or fish products regulated under this subpart, shall be subject to the inspection provisions of this section.

(e)*Applicability of reporting and recordkeeping requirements.* Reporting and recordkeeping requirements in this subpart apply to any person engaging in activities that require a trade permit, as set forth in § 300.182(a), regardless of whether a trade permit has been issued to that person. 5. In § 300.184, the section heading, introductory text, and paragraphs (a)(1) introductory text, (b)(1) introductory text, (c)(1) introductory text, and (d)(1) are revised and paragraph

(e)is added to read as follows: § 300.184 Species subject to permitting, documentation, reporting, and recordkeeping requirements. The following fish or fish products are subject to the requirements of this subpart, regardless of ocean area of catch.

(a)* * *

(1)The requirements of this subpart apply to bluefin tuna products including those identified by the following subheading numbers from the Harmonized Tariff Schedule of the United States (HTS):

(b)* * *

(1)The requirements of this subpart apply to southern bluefin tuna products including those identified by the following subheading numbers from the HTS:

(c)* * *

(1)The requirements of this subpart apply to frozen bigeye tuna products including those identified by the following subheading numbers from the HTS:

(d)* * *

(1)The requirements of this subpart apply to swordfish products including those identified by the following subheading numbers from the HTS:

(i)Fresh or chilled swordfish, steaks (No. 0302.67.00.10).

(ii)Fresh or chilled swordfish (No. 0302.67.00.90), excluding fish fillets, steaks, and other fish meat of HTS heading 0304.

(iii)Frozen swordfish, steaks (No. 0303.61.00.10).

(iv)Frozen swordfish (No. 0303.61.00.90), excluding fillets, steaks and other fish meat of HTS heading 0304.

(v)Fresh, or chilled swordfish, fillets and other fish meat (No. 0304.11.00.00).

(vi)Frozen swordfish, fillets (No. 0304.21.00.00).

(vii)Swordfish in bulk or in immediate containers weighing with their contents over 6.8 kg each (No. 0304.91.10.00).

(viii)Swordfish, other (No. 0304.91.90.00).

(e)*Shark fin.* The permitting requirements of this subpart apply to shark fin products including those identified by the following subheading number from HTS: No. 0305.59.20.00. 6. In § 300.185: A. The section heading and paragraphs (a)(1), (a)(2)(i) through (iv), (a)(3), (b)(1), (b)(2), (b)(3), (c)(1), (c)(2)(i), (c)(2)(ii), (c)(3) and

(d)are revised. B. Paragraph

(e)is redesignated as paragraph (f). C. New paragraphs (a)(2)(v) through (a)(2)(ix) and

(e)are added. The revisions and additions read as follows: § 300.185 Documentation, reporting and recordkeeping requirements for consignment documents and re-export certificates.

(a)* * *

(1)*Applicability of requirements.* The documentation requirements in paragraph (a)(2) of this section apply to all imports of fish or fish products regulated under this subpart, into the Customs territory of the United States, except shark fins, or except when entered as a product of an American fishery landed overseas (HTS heading 9815). For insular possessions with customs territories separate from the Customs territory of the United States, documentation requirements in paragraph (a)(2) of this section apply only to entries for consumption. The reporting requirements of paragraph (a)(3) of this section do not apply to fish products destined from one foreign country to another which transit the United States or a U.S. insular possession and are designated as an entry type other than entry for consumption as defined in § 300.181.

(2)* * *

(i)All fish or fish products except for shark fins, regulated under this subpart, imported into the Customs territory of the United States or entered for consumption into a separate customs territory of a U.S. insular possession, must, at the time of presenting entry documentation for clearance by customs authorities (e.g., CBP Forms 7533 or 3461 or other documentation required by the port director) be accompanied by an original, completed, approved, validated, species-specific consignment document.

(ii)Imports of bluefin tuna which were re-exported from another nation, must also be accompanied by an original, completed, approved, validated, species-specific re-export certificate.

(iii)Imports of fish or fish products regulated under this subpart, other than shark fins, that were previously re-exported and were subdivided or consolidated with another consignment before re-export, must also be accompanied by an original, completed, approved, validated, species-specific re-export certificate.

(iv)All other imports of fish or fish products regulated under this subpart, except shark fins, that have been previously re-exported from another nation, should have the intermediate importers certification of the original statistical document completed.

(v)Consignment documents must be validated as specified in § 300.187 by a responsible government official of the flag country whose vessel caught the fish (regardless of where the fish are first landed). Re-export certificates must be validated by a responsible government official of the re-exporting country.

(vi)A permit holder may not accept an import without the completed consignment document or re-export certificate as described in paragraphs (a)(2)(i) through (a)(2)(v) of this section.

(vii)For fish or fish products except shark fins regulated under this subpart that are entered for consumption, the permit holder must provide on the original consignment document that accompanied the consignment the correct information and importer's certification specified in § 300.186, and must note on the top of the consignment document the entry number assigned at the time of filing an entry summary (e.g., CBP Form 7501 or electronic equivalent) with customs authorities.

(viii)Bluefin tuna, imported into the Customs territory of the United States or entered for consumption into the separate customs territory of a U.S. insular possession, from a country requiring a BCD tag on all such bluefin tuna available for sale, must be accompanied by the appropriate BCD tag issued by that country, and said BCD tag must remain on any bluefin tuna until it reaches its final destination. If the final import destination is the United States, which includes U.S. insular possessions, the BCD tag must remain on the bluefin tuna until it is cut into portions. If the bluefin tuna portions are subsequently packaged for domestic commercial use or re-export, the BCD tag number and the issuing country must be written legibly and indelibly on the outside of the package.

(ix)Customs forms can be obtained by contacting the local CBP port office; contact information is available at *www.cbp.gov* . For a U.S. insular possession, contact the local customs office for any forms required for entry.

(3)*Reporting requirements.* For fish or fish products regulated under this subpart, except shark fins, that are entered for consumption and whose final destination is within the United States, which includes U.S. insular possessions, a permit holder must submit to NMFS the original consignment document that accompanied the fish product as completed under paragraph (a)(2) of this section, to be received by NMFS along with the biweekly report as required under § 300.183(a). A copy of the original completed consignment document must be submitted by said permit holder, to be received by NMFS, at an address designated by NMFS, within 24 hours of the time the fish product was entered for consumption into the Customs territory of the United States, or the separate customs territory of a U.S. insular possession.

(b)* * *

(1)*Applicability of requirements.* The documentation and reporting requirements of this paragraph

(b)apply to exports of fish or fish products regulated under this subpart, except shark fins, that were harvested by U.S. vessels and first landed in the United States, or harvested by vessels of a U.S. insular possession and first landed in that possession. This paragraph

(b)also applies to products of American fisheries landed overseas.

(2)*Documentation requirements.* A permit holder must complete an original, approved, numbered, species-specific consignment document issued to that permit holder by NMFS for each export referenced under paragraph (b)(1) of this section. Such an individually numbered document is not transferable and may be used only once by the permit holder to which it was issued to report on a specific export consignment. A permit holder must provide on the consignment document the correct information and exporter certification. The consignment document must be validated, as specified in § 300.187, by NMFS, or another official authorized by NMFS. A list of such officials may be obtained by contacting NMFS. A permit holder requesting U.S. validation for exports should notify NMFS as soon as possible after arrival of the vessel to avoid delays in inspection and validation of the export consignment.

(3)*Reporting requirements.* A permit holder must ensure that the original, approved, consignment document as completed under paragraph (b)(2) of this section accompanies the export of such products to their export destination. A copy of the consignment document must be received by NMFS, at an address designated by NMFS, within 24 hours of the time the fish product was exported from the United States or a U.S. insular possession.

(c)* * *

(1)*Applicability of requirements.* The documentation and reporting requirements of this paragraph

(c)apply to exports of fish or fish products regulated under this subpart, except shark fins, that were previously entered for consumption into the Customs territory of the United States or the separate customs territory of a U.S. insular possession, through filing the documentation specified in paragraph

(a)of this section. The requirements of this paragraph

(c)do not apply to fish or fish products destined from one foreign country to another which transit the United States or a U.S. insular possession and which are designated as an entry type other than entry for consumption as defined in § 300.181.

(2)* * *

(i)If a permit holder re-exports a consignment of bluefin tuna, or subdivides or consolidates a consignment of fish or fish products regulated under this subpart, other than shark fins, that was previously entered for consumption as described in paragraph (c)(1) of this section, the permit holder must complete an original, approved, individually numbered, species-specific re-export certificate issued to that permit holder by NMFS for each such re-export consignment. Such an individually numbered document is not transferable and may be used only once by the permit holder to which it was issued to report on a specific re-export consignment. A permit holder must provide on the re-export certificate the correct information and re-exporter certification. The permit holder must also attach the original consignment document that accompanied the import consignment or a copy of that document, and must note on the top of both the consignment documents and the re-export certificates the entry number assigned by CBP authorities at the time of filing the entry summary.

(ii)If a consignment of fish or fish products regulated under this subpart, except bluefin tuna or shark fins, that was previously entered for consumption as described in paragraph (c)(1) of this section is not subdivided into sub-consignments or consolidated, for each re-export consignment, a permit holder must complete the intermediate importer's certification on the original statistical document and note the entry number on the top of the statistical document. Such re-exports do not need a re-export certificate and the re-export does not require validation.

(3)*Reporting requirements.* For each re-export, a permit holder must submit the original of the completed re-export certificate (if applicable) and the original or a copy of the original consignment document completed as specified under paragraph (c)(2) of this section, to accompany the consignment of such products to their re-export destination. A copy of the completed consignment document and re-export certificate (if applicable) must be submitted to NMFS, at an address designated by NMFS, and received by NMFS within 24 hours of the time the consignment was re-exported from the United States. For re-exports of untagged Atlantic bluefin tuna, the permit holder must email, fax, or mail a copy of the completed consignment document and re-export certificate to the ICCAT Secretariat and the importing nation, at addresses designated by NMFS, to be received by the ICCAT Secretariat and the importing nation, within five days of export.

(d)*Document completion.* To be deemed complete, a consignment document or re-export certificate must be filled out according to the corresponding instructions for each document with all requested information provided.

(e)*Recordkeeping.* A permit holder must retain at his or her principal place of business, a copy of each consignment document and re-export certificate required to be submitted to NMFS pursuant to this section, and supporting records for a period of 2 years from the date on which it was submitted to NMFS. 7. In § 300.186 the section heading and paragraphs

(a)and

(b)are revised and paragraphs

(c)through

(h)are removed to read as follows: § 300.186 Completed and approved documents.

(a)*NMFS-approved consignment documents and re-export certificates.* A NMFS-approved consignment document or re-export certificate may be obtained from NMFS to accompany exports of fish or fish products regulated under this subpart from the Customs territory of the United States or the separate customs territory of a U.S. insular possession.

(b)*Nationally approved forms from other countries.* A nationally approved form from another country may be used for exports to the United States if that document strictly conforms to the information requirements and format of the applicable RFMO documents. An approved consignment document or re-export certificate for use in countries without a nationally approved form to accompany consignments to the United States may be obtained from the following websites, as appropriate: *www.iccat.org* , *www.iattc.org* , *www.ccsbt.org* , or *www.iotc.org* . 8. In § 300.187, paragraphs (a), (b), and

(d)through

(f)are revised to read as follows: § 300.187 Validation requirements.

(a)*Imports.* The approved consignment document accompanying any import of any fish or fish product regulated under this subpart must be validated by a government official from the issuing country, unless NMFS waives this requirement pursuant to an applicable RFMO recommendation. NMFS will furnish a list of countries for which government validation requirements are waived to the appropriate customs officials. Such list will indicate the circumstances of exemption for each issuing country and the non-government institutions, if any, accredited to validate statistical documents and re-export certificates for that country.

(b)*Exports.* The approved consignment document accompanying any export of fish or fish products regulated under this subpart must be validated, except pursuant to a waiver described in paragraph

(d)of this section. Validation must be made by NMFS or another official authorized by NMFS.

(d)*Validation waiver.* Any waiver of government validation will be consistent with applicable RFMO recommendations concerning validation of consignment documents and re-export certificates. If authorized, such waiver of government validation may include exemptions from government validation for Pacific bluefin tuna with individual BCD tags affixed pursuant to paragraph

(f)of this section or for Atlantic bluefin tuna with tags affixed pursuant to § 635.5(b) of this title. Waivers will be specified on consignment documents and re-export certificates or accompanying instructions, or in a letter to permit holders from NMFS.

(e)*Authorization for non-NMFS validation.* An official from an organization or government agency seeking authorization to validate consignment documents or re-export certificates accompanying exports or re-exports from the United States, which includes U.S. commonwealths, territories, and possessions, must apply in writing, to NMFS, at an address designated by NMFS for such authorization. The application must indicate the procedures to be used for verification of information to be validated; list the names, addresses, and telephone/fax numbers of individuals to perform validation; procedures to be used to notify NMFS of validations; and an example of the stamp or seal to be applied to the consignment document or re-export certificate. NMFS, upon finding the applicant capable of verifying the information required on the consignment document or re-export certificate, will issue, within 30 days, a letter specifying the duration of effectiveness and conditions of authority to validate consignment documents or re-export certificates accompanying exports or re-exports from the United States. The effective date of such authorization will be delayed as necessary for NMFS to notify the appropriate RFMO of other officials authorized to validate consignment document or re-export certificates. Non-government organizations given authorization to validate consignment documents or re-export certificates must renew such authorization on a yearly basis.

(f)*BCD tags* —(1) *Issuance.* NMFS will issue numbered BCD tags for use on Pacific bluefin tuna upon request to each permit holder.

(2)*Transfer.* BCD tags issued under this section are not transferable and are usable only by the permit holder to whom they are issued.

(3)*Affixing BCD tags.* At the discretion of permit holders, a tag issued under this section may be affixed to each Pacific bluefin tuna purchased or received by the permit holder. If so tagged, the tag must be affixed to the tuna between the fifth dorsal finlet and the keel.

(4)*Removal of tags.* A tag, as defined in this subpart and affixed to any bluefin tuna, must remain on the tuna until it is cut into portions. If the bluefin tuna or bluefin tuna parts are subsequently packaged for transport for domestic commercial use or for export, the number of each dealer tag or BCD tag must be written legibly and indelibly on the outside of any package containing the bluefin tuna or bluefin tuna parts. Such tag number also must be recorded on any document accompanying the consignment of bluefin tuna or bluefin tuna parts for commercial use or export.

(5)*Labeling.* The number of a BCD tag affixed to each Pacific bluefin tuna under this section must be recorded on NMFS reports required by § 300.183, on any documents accompanying the consignment of Pacific bluefin tuna for domestic commercial use or export as indicated in § 300.185, and on any additional documents that accompany the consignment (e.g., bill of lading, customs manifest, etc.) of the tuna for commercial use or for export.

(6)*Reuse.* BCD tags issued under this section are separately numbered and may be used only once, one tag per Pacific bluefin tuna, to distinguish the purchase of one Pacific bluefin tuna. Once affixed to a tuna or recorded on any package, container or report, a BCD tag and associated number may not be reused. 9. Section 300.188 is revised to read as follows: § 300.188 Ports of entry. NMFS shall monitor the importation of fish or fish products regulated under this subpart into the United States. If NMFS determines that the diversity of handling practices at certain ports at which fish or fish products regulated under this subpart are being imported into the United States allows for circumvention of the consignment document requirement, NMFS may undertake a rulemaking to designate, after consultation with the CBP, those ports at which fish or fish products regulated under this subpart from any ocean area may be imported into the United States. 10. In § 300.189, paragraphs

(h)through (j), and

(m)are revised and paragraph

(n)is added to read as follows: § 300.189 Prohibitions.

(h)Validate consignment documents or re-export certificates without authorization as specified in § 300.187.

(i)Validate consignment documents or re-export certificates as provided for in § 300.187 with false information.

(j)Remove any NMFS-issued numbered tag affixed to any Pacific bluefin tuna or any tag affixed to a bluefin tuna imported from a country with a BCD tag program before removal is allowed under § 300.187; fail to write the tag number on the shipping package or container as specified in § 300.187; or reuse any NMFS-issued numbered tag affixed to any Pacific bluefin tuna, or any tag affixed to a bluefin tuna imported from a country with a BCD tag program, or any tag number previously written on a shipping package or container as prescribed by § 300.187.

(m)Fail to provide a validated consignment document for imports at time of entry into the Customs territory of the United States of fish or fish products regulated under this subpart except shark fins, regardless of whether the importer, exporter, or re-exporter holds a valid trade permit issued pursuant to § 300.182 or whether the fish products are imported as an entry for consumption.

(n)Import or accept an imported consignment of fish or fish products regulated under this subpart, except shark fins, without an original, completed, approved, validated, species-specific consignment document and re-export certificate (if applicable) with the required information and exporter's certification completed. Chapter VI PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 11. The authority citation for 50 CFR part 635, continues to read as follows: Authority: 16 U.S.C. 971 *et seq.* ; 16 U.S.C. 1801 *et seq.* § 635.2 [Amended] 12. In § 635.2, the definition of “Import” is removed. 13. In § 635.5, paragraph (b)(2)(i)(B) is revised to read as follows: § 635.5 Recordkeeping and reporting.

(b)* * *

(2)* * *

(i)* * *

(B)*Bi-weekly reports.* Each dealer with a valid Atlantic tunas permit under § 635.4 must submit a complete bi-weekly report on forms available from NMFS for BFT received from U.S. vessels. For BFT received from U.S. vessels on the 1 st through the 15 th of each month, the dealer must submit the bi-weekly report form to NMFS, to be received by NMFS, not later than the 25 th of that month. Reports of BFT received on the 16 th through the last day of each month must be received by NMFS not later than the 10 th of the following month. [FR Doc. E8-12232 Filed 5-30-08; 8:45 am] BILLING CODE 3510-22-S 73 106 Monday, June 2, 2008 Proposed Rules DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 801 [Docket No. FDA-2008-N-0148] Medical Devices; Hearing Aids; Technical Data Amendments AGENCY: Food and Drug Administration, HHS. ACTION: Proposed rule. SUMMARY: The Food and Drug Administration

(FDA)is proposing to amend its regulations governing hearing aid labeling to reference the most recent version of the consensus standard used to determine the technical data to be included in labeling for hearing aids. We are proposing to amend the regulations to require manufacturers to use state-of-the-art methods to provide technical data in hearing aid labeling. FDA is also proposing to amend the regulations to update an address and remove an outdated requirement. This proposed rule is a companion document to the direct final rule published elsewhere in this issue of the **Federal Register** . DATES: Submit written or electronic comments by August 18, 2008. The Director of the Office of the **Federal Register** approves the incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51 of certain publications in § 801.420(c)(4) (21 CFR 801.420(c)(4)) as of October 15, 2008. ADDRESSES: You may submit comments, identified by Docket No. FDA-2008-N-0148, by any of the following methods: *Electronic Submissions* Submit electronic comments in the following way: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. *Written Submissions* Submit written submissions in the following ways: • FAX: 301-827-6870. • Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal or the agency Web site, as described previously, in the ADDRESSES portion of this document under *Electronic Submissions* . *Instructions* : All submissions received must include the agency name and Docket No. for this rulemaking. All comments received may be posted without change to * http://www.regulations.gov* , including any personal information provided. For additional information on submitting comments, see the “Comments” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket* : For access to the docket to read background documents or comments received, go to * http://www.regulations.gov* and insert the docket number(s), found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: Eric A. Mann, Center for Devices and Radiological Health (HFZ-460), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 240-276-4242. SUPPLEMENTARY INFORMATION: I. Why Is This Proposed Rule Being Issued as a Companion Proposed Rule? This proposed rule is a companion to the direct final rule that is published in the final rules section of this issue of the **Federal Register** . The direct final rule amends the regulations governing hearing aid labeling to reference the most recent version of the consensus standard used to determine the technical data to be included in labeling for hearing aids. We are amending this rule to require manufacturers to use state-of-the-art methods to provide technical data in hearing aid labeling. FDA also is amending the rule to update an address and eliminate an outdated provision. The direct final rule and this companion proposed rule are identical. We are publishing the direct final rule because we believe the rule contains noncontroversial changes and we anticipate that it will receive no significant adverse comment. A detailed discussion of the rule is set forth in the preamble of the direct final rule. If no significant adverse comment is received in response to the direct final rule, no further action will be taken related to this proposed rule. Instead, we will publish a confirmation document within 30 days after the comment period ends confirming when the direct final rule will go into effect. You can find additional information about FDA's direct final rulemaking procedures in the guidance document entitled “Guidance for FDA and Industry: Direct Final Rule Procedures” (62 FR 62466, November 21, 1977). This guidance document may be accessed at *http://www.fda.gov/opacom/morechoices/industry/guidance.htm* . If we receive any significant adverse comment regarding the direct final rule, we will withdraw the direct final rule within 30 days after the comment period ends and proceed to respond to all of the comments under this companion proposed rule using usual notice-and-comment rulemaking procedures under the Administrative Procedure Act

(APA)(5 U.S.C. 552a *et seq* .). The comment period for this companion proposed rule runs concurrently with the direct final rule's comment period. Any comments received under this companion proposed rule will also be considered as comments regarding the direct final rule. A significant adverse comment is defined as a comment that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. In determining whether an adverse comment is significant and warrants terminating a direct final rulemaking, we will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process in accordance with section 553 of the APA (5 U.S.C. 553). Comments that are frivolous, insubstantial, or outside the scope of the rule will not be considered adverse under this procedure. For example, a comment recommending an additional change to the rule will not be considered a significant adverse comment, unless the comment states why the rule would be ineffective without the additional change. In addition, if a significant adverse comment applies to part of a rule and that part can be severed from the remainder of the rule, we may adopt as final those parts of the rule that are not the subject of a significant adverse comment. II. What Is the Background of the Rulemaking? In the **Federal Register** of February 15, 1977 (the 1977 final rule) (42 FR 9286), FDA published a final rule establishing requirements for professional and patient labeling of hearing aids and governing conditions for sale of hearing aids (§ 801.420 and § 801.421 (21 CFR 801.421)). The regulations became effective on August 15, 1977. Section 801.421(b)(1) of the current regulations provides that, before the sale of a hearing aid to a prospective user, a hearing aid dispenser is to provide the prospective user with a copy of the User Instructional Brochure. Current § 801.420(c)(4) requires that technical data useful in selecting, fitting, and checking the performance of a hearing aid be provided in the brochure or in separate labeling that accompanies the device. The 1977 final rule further required that the technical data values provided in the brochure or other labeling be determined according to the test procedures established by the Acoustical Society of America

(RTS)has been widened to ± 1.5 dB from ± 1.0 dB. FDA is now incorporating the 2003 standard into § 801.420(c)(4). III. What Does This Companion Proposed Rule Do? In this rule, FDA is proposing to: • Amend § 801.420(c)(4) to change the identification of the standard from “American National Standard ‘Specification of Hearing Aid Characteristics,’ ANSI S3.22-1996 (ASA 70-1996) (Revision of ANSI S3.22-1987)” to “American National Standard ‘Specification of Hearing Aid Characteristics,’ ANSI S3.22-2003 (Revision of ANSI S3.22-1996)”. FDA is also proposing to update an address in this section, changing “1350 Piccard Dr., rm. 240,” to “1350 Piccard Dr., rm. 150,”. • Remove § 801.420(d). This section requires that manufacturers submit to FDA for review their User Instructional Brochure and other labeling for each type of hearing aid on or before August 15, 1977. This section was included with the initial hearing aid rule in 1977. It was intended to provide for an initial FDA review of the labeling to meet the new requirements. This section is outdated and is no longer necessary. IV. What is the Legal Authority for This Proposed Rule? This proposed rule is authorized by sections 201, 301, 501, 502, 701, and 704 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 331, 351, 352, 371, and 374). V. What is the Environmental Impact of This Proposed Rule? The agency has determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. VI. What is the Economic Impact of This Proposed Rule? FDA has examined the impacts of the proposed rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this proposed rule is not a significant regulatory action as defined by the Executive order. The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. The proposed rule would amend the existing hearing aid regulation to refer to the updated consensus standard that is used to determine the technical data in hearing aid labeling. It does not impose any new requirements. Communications from manufacturers to FDA show that they are prepared to comply with this standard immediately. The agency, therefore, certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $127 million, using the most current

(2006)Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this proposed rule to result in any 1-year expenditure that would meet or exceed this amount. VII. How Does the Paperwork Reduction Act of 1995 Apply to This Proposed Rule? This proposed rule contains information collection provisions that are subject to review by the Office of Management and Budget

(OMB)under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520). The collections of information addressed in the companion direct final rule have been approved by OMB in accordance with the PRA under the regulations governing labeling of medical devices (21 CFR part 801, OMB control number 0910-0485). VIII. What Are the Federalism Impacts of This Proposed Rule? FDA has analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that 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. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required. IX. How Do You Submit Comments on This Proposed Rule? Interested persons may submit to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, written or electronic comments on this recommendation. Submit electronic comments to *http://www.regulations.gov* . Two copies of any written comments are to be submitted, except that individuals may submit one copy. Comments are to be identified with the name of the device and the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. Please note that on January 15, 2008, the FDA Division of Dockets Management Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic comments or submissions will be accepted by FDA only through FDMS at *http://www.regulations.gov* . List of Subjects in 21 CFR Part 801 Incorporation by reference, Labeling, Medical devices, Reporting and recordkeeping requirements. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR part 801 be amended as follows: PART 801—LABELING 1. The authority citation for 21 CFR part 801 continues to read as follows: Authority: 21 U.S.C. 321, 331, 351, 352, 360i, 360j, 371, 374. 2. Section 801.420 is amended by revising the second and third sentences of and adding a new fourth sentence to paragraph (c)(4) introductory text and by removing paragraph

(d)to read as follows: § 801.420 Hearing aid devices; professional and patient labeling.

(c)* * *

(AMLR)Plan (hereinafter, the Wyoming Plan) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Wyoming intends to revise its Plan by submitting a revision to correct an inadvertent error in the statute amendment passed in the 2007 Legislative Session. DATES: Comments on the proposed rule must be received by 4 p.m., m.d.t., July 2, 2008 to ensure our consideration. If requested, we will hold a public hearing on the amendment on June 27, 2008. We will accept requests to speak until 4 p.m., m.d.t., June 17, 2008. ADDRESSES: You may submit comments by either of the two following methods: • Federal e-Rulemaking Portal: *http://www.regulations.gov.* The notice is listed under the agency name “Office of Surface Mining Reclamation and Enforcement” and has been assigned Docket ID: OSM-2008-0008. • *Mail/Hand Delivery:* Jeffrey Fleischman, Director, Casper Field Office; Office of Surface Mining Reclamation and Enforcement; 150 East “B” Street, Room 1018, Casper, Wyoming 82601. Please include the Docket ID (OSM-2008-0008) with your comments. If you would like to submit comments through the Federal e-Rulemaking Portal, go to *http://www.regulations.gov* and do the following. Click on the “Advanced Docket Search” button on the right side of the screen. Type in the Docket ID OSM-2008-0008 and click the “Submit” button at the bottom of the page. The next screen will display the Docket Search Results for the rulemaking. If you click on OSM-2008-0008, you can view the proposed rule and submit a comment. You can also view supporting material and any comments submitted by others. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than the two listed above will be included in the docket for this rulemaking and considered. For additional information on the rulemaking process and the public availability of comments, see “III. Public Comment Procedures” in the SUPPLEMENTARY INFORMATION section of this document. You may receive one free copy of this amendment by contacting OSM's Casper Field Office. You may access this amendment's docket, review copies of the Wyoming Plan and this amendment, find a listing of any scheduled public hearings, and review all written comments received in response to this document during normal business hours, Monday through Friday, excluding holidays, at the following addresses: *Federal e-Rulemaking Portal:* *http://www.regulations.gov.* The notice has been assigned Docket ID: OSM-2008-0008. Jeffrey Fleischman, Director, Casper Field Office, Office of Surface Mining Reclamation and Enforcement, 150 East “B” Street, Room 1018, Casper, Wyoming 82601,

(307)261-6550, *jfleischman@osmre.gov.* Rick Chancellor, AML Administrator, Department of Environmental Quality, Herschler Building, 122 West 25th Street, Cheyenne, Wyoming 82002, 307-777-7062. FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Casper Field Office Director, Telephone:

(307)261-6550, Internet address: *jfleischman@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Wyoming Plan II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Wyoming Plan The AMLR Program was established by Title IV of the Act (30 U.S.C. 1201 *et seq.* ) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On February 14, 1983, the Secretary of the Interior approved Wyoming's AMLR Plan. You can find general background information on the Wyoming Plan, including the Secretary's findings and the disposition of comments, in the February 14, 1983, **Federal Register** (48 FR 6536). OSM announced in the May 25, 1984, **Federal Register** (49 FR 22139), the Director's decision accepting certification by Wyoming that it had addressed all known coal-related impacts in the State that were eligible for funding under the Wyoming Plan. Wyoming could then proceed in reclaiming low priority non-coal projects. The Director accepted Wyoming's proposal that it would seek immediate funding for reclamation of any additional coal-related problems that occur during the life of the Wyoming Plan. You can find later actions concerning Wyoming's Plan and plan amendments at 30 CFR 950.35. II. Description of the Proposed Amendment By letter dated March 21, 2008, Wyoming submitted a proposed amendment to the Wyoming Reclamation Plan. Wyoming submitted the amendment in response to a letter sent to the State dated January 18, 2008, from the Regional Director, Western Region of OSM. Pursuant to 30 CFR 884.11, OSM directed Wyoming to resolve a conflict in Wyoming accounts established to receive funds from the Federal Government pursuant to the SMCRA program. Specifically OSM stated it appears that Wyoming's new statute, WS-35-11-1210 conflicts with existing WS-35-11-1203. WS-35-11-1210 was passed in 2007 and established an account to receive funding under new section 411(h) of SMCRA. These funds are not required to be spent on reclamation projects. Wyoming's proposed amendment clarifies that the account established by WS-35-11-1210 is for the purpose of receving funds from the Federal Government pursuant to SMCRA Section 411(h) and that these funds are separate and in addition to funds distributed to the account established by WS-35-11-1203. The WS-35-11-1203 account remains to receive funds to carry out the Reclamation Plan including coal reclamation. The full text of the plan amendment is available for you to read at the locations listed above under ADDRESSES. III. Public Comment Procedures Under the provisions of 30 CFR 884.15(a), OSM requests your comments on whether the amendment satisfies the applicable State reclamation plan approval criteria of 30 CFR 884.14. If we approve the amendment, it will become part of the Wyoming Plan. *Electronic or Written Comments:* If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent Federal laws or regulations, technical literature, or other relevant publications. We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed above (see ADDRESSES ) will be included in the docket for this rulemaking and considered. *Public Availability of Comments:* Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available in the electronic docket for this rulemaking at *http://www.regulations.gov.* While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. *Public Hearing:* If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t., on June 17, 2008. If you are disabled and need reasonable accommodation to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing. If there is only limited interest in participating in a public hearing, a public meeting rather than a hearing may be held, and a summary of the meeting will be included in the docket for this rulemaking. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard. IV. Procedural Determinations Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects on federally recognized Indian Tribes and have determined that the proposed amendment does not have substantial direct effects 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. The proposal does not affect Indian Tribes in any way. Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis of the amendment submitted by Wyoming. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget

(OMB)under Executive Order 12866 (Regulatory Planning and Review). Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections

(a)and

(b)of that section. However, these standards are not applicable to the actual language of Tribe or State AMLR plans and revisions since each such plan is drafted and promulgated by a specific Tribe or State, not by OSM. Decisions on proposed Tribe or State AMLR plans and revisions submitted by a Tribe or State are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR parts 884 and 888. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is

(1)considered significant under Executive Order 12866, and

(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act No environmental impact statement is required for this rule since agency decisions on proposed Tribe or State AMLR plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior at 516 DM 13.5.B(29). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.).* Regulatory Flexibility Act The Department of the Interior 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.* ). This determination is based upon the nature of the amendment submitted by Wyoming as discussed above. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. Based on the nature of the amendment submitted by Wyoming, we have determined that the rule: a. Does not have an annual effect on the economy of $100 million. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of $100 million or more in any given year. This determination is based on the nature of the amendment submitted by Wyoming. List of Subjects in 30 CFR Part 950 Intergovernmental relations, Surface mining, Underground mining. Dated: May 13, 2008. James Fulton, Acting Regional Director, Western Region. [FR Doc. E8-12199 Filed 5-30-08; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2008-0392] RIN 1625-AA08 Special Local Regulations for Marine Events; Patapsco River, Inner Harbor, Baltimore, MD AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish special local regulations during the “Pride of Baltimore Recycled Regatta”, a marine event to be held August 2, 2008 on the waters of the Patapsco River, Inner Harbor, Baltimore, MD. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the Baltimore Inner Harbor during the event. DATES: Comments and related material must reach the Coast Guard on or before July 2, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2008-0392 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:

(1)*Online: http://www.regulations.gov.*

(2)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(3)*Hand delivery:* Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(4)*Fax:* 202-493-2251. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call Dennis Sens, Project Manager, Fifth Coast Guard District, Inspections and Investigations Branch, at

(757)398-6204. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation

(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0392), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time. Enter the docket number for this rulemaking (USCG-2008-0392) in the Search box, and click “Go >>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or the Fifth Coast Guard District, Prevention Division, 431 Crawford Street, Portsmouth, VA, 23704 between 10 a.m. and 2 p.m., Monday through Friday, except Federal holidays. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov.* Public Meeting We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose On August 2, 2008, Pride of Baltimore, Inc. will sponsor “Pride of Baltimore Recycled Regatta” at the Inner Harbor in Baltimore, MD. The event will consist of approximately 30 boats built from recycled materials attempting to traverse a designated course that extends over the water immediately adjacent to the southwest corner of the promenade surrounding the Baltimore Inner Harbor. The regulated area originates at the southwest corner of the Inner Harbor adjacent to the Maryland Science Center and extends outward over the water within an approximately 150 yard arc. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels. Discussion of Proposed Rule The Coast Guard proposes to establish temporary special local regulations on specified waters of the Patapsco River, Inner Harbor, Baltimore, MD. The regulations will be in effect from 2:30 p.m. to 9:30 p.m. on August 2, 2008. The effect will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. Vessel traffic may be allowed to transit the regulated area at slow speed when event activity is halted, and when the Coast Guard Patrol Commander determines it is safe to do so. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this regulation will prevent traffic from transiting a portion of the Baltimore Inner Harbor during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic may be able to transit the regulated area at slow speed when event activity is halted, when the Coast Guard Patrol Commander deems it is safe to do so. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the affected portion of the Baltimore Inner Harbor during the event. Although this regulation prevents traffic from transiting a small segment of the Baltimore Inner Harbor during the event, this proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule would be in effect for only a limited period. Vessel traffic may be able to transit the regulated area when event activity is halted, when the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, and Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows: PART 100—REGATTAS AND MARINE PARADES 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233. 2. Add a temporary § 100.35-T05-0392 to read as follows: § 100.35-T05-0392 Patapsco River, Inner Harbor, Baltimore, MD.

(a)*Definitions:* The following definitions apply to this section:

(1)*Coast Guard Patrol Commander* means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Commander, Coast Guard Sector Baltimore.

(2)*Official Patrol* means any vessel assigned or approved by Commander, Coast Guard Sector Baltimore with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

(3)*Participant* includes all vessels participating in the Pride of Baltimore Recycled Regatta under the auspices of a Marine Event Permit issued to the event sponsor and approved by Commander, Coast Guard Sector Baltimore.

(4)*Regulated area* includes the waters of the Patapsco River, Baltimore, MD, Inner Harbor within the immediate vicinity of the southwest corner of the harbor adjacent to the Maryland Science Center. The area is bounded on the south and west by the shoreline promenade, bounded on the north by a line drawn along latitude 39°16′58″ North and bounded on the east by a line drawn along longitude 076°36′36.5″ West. All coordinates reference Datum NAD 1983.

(b)*Special local regulations:*

(1)Except for event participants and persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.

(2)The operator of any vessel in the regulated area shall:

(i)Stop the vessel immediately when directed to do so by any Official Patrol.

(ii)Proceed as directed by any Official Patrol.

(iii)When authorized to transit the regulated area, all vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the event area.

(c)*Effective period.* This section will be enforced from 2:30 p.m. to 9:30 p.m. on August 2, 2008. Dated: May 20, 2008. Fred M. Rosa, Jr., Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E8-12151 Filed 5-30-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0112] RIN 1625-AA11 “Gasco” Regulated Navigation Area, Willamette River, Portland, OR AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard is establishing a Regulated Navigation Area on the Willamette River Portland Oregon Captain of the Port Zone. This action is necessary to preserve the integrity of the clean engineered pilot cap placed over a portion of the NW Natural “Gasco” site

(Site)remediation area as part of the Environmental Protection Agency

(EPA)Superfund clean up action. This proposed rule is needed to prohibit activities that would cause disturbance of pilot cap material which was placed to isolate and contain underlying contaminated sediment. DATES: Comments and related material must reach the Coast Guard on or before July 2, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2008-0112 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:

(1)*Online: http://www.regulations.gov.*

(2)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4)*Fax:* 202-493-2251. FOR FURTHER INFORMATION CONTACT: MST1 Lucia Mack, Waterways Division, Sector Portland, OR at 503-240-9301. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation

(RNA)on all waters of the Willamette River encompassed by a line commencing at 45°34′47″ N, 122°45′28″ W along the shoreline to 45°34′47″ N, 122°45′30″ W thence to 45°34′47″ N, 122°45′30″ W thence to 45°34′48″ N, 122°45′30″ W thence to 45°34′48″ N, 122°45′30″ W thence to 45°34′48″ N, 122°45′28″ W thence to 45°34′47″ N, 122°45′28″ W and back to the point of origin. Vessels are prohibited from motoring, anchoring, dragging, dredging, and trawling directly over or adjacent to the pilot cap area, except as required for ongoing operations at the adjacent refueling pipeline. Violations of the RNA regulations are punishable by civil penalties (not to exceed $32,500 per violation), criminal penalties (imprisonment for not more than 10 years and a fine of not more than $250,000), and in rem liability against the offending vessel. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The effect of this regulation will not be significant based on the fact there will be minimal, if any, effect on the navigable waterway around the proposed regulated area due to the regulated navigation area's proximity to the shore. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Willamette River. This proposed rule will not have a significant economic impact on a substantial number of small entities because the regulated navigation area is limited in size leaving ample room for vessels to navigate around the area. Vessels engaged in commerce with the existing refueling pipeline located within the site should not be affected by this regulation in those activities but are advised to minimize potential impacts such as anchoring, wake scouring, and dragging in the vicinity of the pilot cap. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact MST1 Lucia Mack, Waterways Division, Sector Portland, at 503-240-9301. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.1D which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f) and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this determination is available in the docket under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.1322 to read as follows: § 165.1322 Regulated Navigation Area: Willamette River Portland, Oregon Captain of the Port Zone.

(a)*Location.* The following is a regulated navigation area (RNA): All waters of the Willamette River encompassed by a line commencing at 45°34′47″ N, 122°45′28″ W along the shoreline to 45°34′47″ N, 122°45′30″ W thence to 45°34′47″ N, 122°45′30″ W thence to 45°34′48″ N, 122°45′30″ W thence to 45°34′48″ N, 122°45′30″ W thence to 45°34′48″ N, 122°45′28″ W thence to 45°34′47″ N, 122°45′28″ W and back to the point of origin. All coordinates reference 1983 North American Datum (NAD 83).

(b)*Regulations.*

(1)Motoring, anchoring, dragging, dredging, or trawling are prohibited in the regulated area.

(2)All vessels transiting or accessing the regulated area shall do so at a no wake speed or at the minimum speed necessary to maintain steerage. Dated: May 6, 2008. J.P. Currier, Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard District. [FR Doc. E8-12149 Filed 5-30-08; 8:45 am] BILLING CODE 4910-15-P LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2005-5] Retransmission of Digital Broadcast Signals Pursuant to the Cable Statutory License AGENCY: Copyright Office, Library of Congress. ACTION: Notice of proposed rulemaking. SUMMARY: The Copyright Office is seeking comment on proposed regulatory changes to accommodate the retransmission of digital television broadcast signals by cable operators under Section 111 of the Copyright Act. DATES: Written comments are due July 17, 2008. Reply comments are due September 2, 2008. June 2, 2008. ADDRESSES: If hand delivered by a private party, an original and five copies of a comment or reply comment should be brought to the Library of Congress, U.S. Copyright Office, Room LM-401, James Madison Building, 101 Independence Ave., SE, Washington, DC 20559, between 8:30 a.m. and 5 p.m. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office. If delivered by a commercial courier, an original and five copies of a comment or reply comment must be delivered to the Congressional Courier Acceptance Site (“CCAS”) located at 2nd and D Streets, NE, Washington, DC between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, LM-403, James Madison Building, 101 Independence Avenue, SE, Washington, DC 20559. Please note that CCAS will not accept delivery by means of overnight delivery services such as Federal Express, United Parcel Service or DHL. If sent by mail (including overnight delivery using U.S. Postal Service Express Mail), an original and five copies of a comment or reply comment should be addressed to U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. FOR FURTHER INFORMATION CONTACT: Ben Golant, Assistant General Counsel, and Tanya M. Sandros, General Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone:

(202)707-8380. Telefax:

(202)707-8366. SUPPLEMENTARY INFORMATION: Section 111 of the Copyright Act (“Act”), title 17 of the United States Code (“Section 111”), provides cable operators with a statutory license to retransmit a performance or display of a work embodied in a primary transmission made by a television station licensed by the Federal Communications Commission (“FCC”). Cable systems that retransmit broadcast signals in accordance with the provisions governing the statutory license set forth in Section 111 are required to pay royalty fees to the Copyright Office. Payments made under the cable statutory license are remitted semi-annually to the Copyright Office which invests the royalties in United States Treasury securities pending distribution of these funds to those copyright owners who are entitled to receive a share of the fees. In 2005, the Motion Picture Association of America, Inc. (“MPAA”), its member companies and other producers and/or distributors of movies, series and specials broadcast by television stations (“Program Suppliers”) and the Joint Sports Claimants (“JSC”) 1 (collectively, “Copyright Owners”) filed a Petition for Rulemaking (“Petition”) seeking to clarify the applicability of existing Copyright Office regulations to the retransmission of digital broadcast signals under the statutory license set forth in Section 111 of the Copyright Act. 1 JSC is composed of the Office of the Commissioner of Baseball, the National Basketball Association, the National Football League, the National Collegiate Athletic Association, the National Hockey League and the Women’s National Basketball Association. The Copyright Office released a Notice of Inquiry (“NOI”) to address the matters raised in the Copyright Owners’ Petition and to solicit comment on possible clarifications to the Copyright Office’s existing rules and cable Statement of Account (“SOA”) forms. *See Retransmission of Digital Broadcast Signals Pursuant to the Cable Statutory License* , 71 FR 54948 (Sept. 20, 2006). In the NOI, the Copyright Office stated that there is nothing in the Act, its legislative history, or the implementing rules, which limits the cable statutory license to analog broadcast signals. Instead, the Office found that the language of Section 111 broadly states that the statutory license applies to any broadcast stations licensed by the FCC or any of the signals transmitted by such stations. As such, the Copyright Office held that the use of the statutory license for the retransmission of digital signals would not be precluded merely because the technological characteristics of a digital signal differ from the traditional analog signal format. Even so, the Copyright Office noted that questions remain regarding the application and operation of the cable statutory license structure in the digital television context. For that reason, the Office sought comment on the issues raised by the Copyright Owners’ Petition and on additional issues. The following parties filed comments in response to the NOI:

(1)Copyright Owners (including the Motion Picture Association of America; Joint Sports Claimants; Public Television Claimants; National Association of Broadcasters; Canadian Claimants; Music Claimants (ASCAP-BMI-SESAC); and Devotional Claimants);

(2)National Cable Television Association (“NCTA”);

(3)National Public Radio (“NPR”); and

(4)Capitol Broadcasting Company (“CBC”). The following parties filed reply comments:

(1)Copyright Owners;

(2)NCTA;

(3)NPR;

(4)American Cable Association (“ACA”); and

(5)Philip Marano-Villanova University School of Law. This Notice of Proposed Rulemaking (“NPRM”) addresses the arguments raised by commenters and seeks public comment on proposals and policy recommendations on issues related to the retransmission of digital television signals by cable operators under Section 111. Proposed rule amendments are found at the end of the NPRM. I. Digital Broadcast Signal Retransmission Issues A. Digital Television Digital television technology enables an FCC licensed television broadcast station to provide, over-the-air, a mix of high-definition digital television signals (“HDTV”), standard-definition digital television signals (“SDTV”), and many different types of ancillary programming and data services. In 1997, the FCC adopted its initial rules governing the transition of the broadcast television industry from analog to digital technology and authorized each individual television station licensee to broadcast in a digital format. Since that time, hundreds of television stations have been transmitting both analog and digital signals from their broadcast facilities and television stations may choose to broadcast in a “digital-only” mode of operations, pursuant to FCC authorization. A significant number of cable operators have agreed to voluntarily carry both analog and digital broadcast signals in local and distant television markets. After February 17, 2009, full power television stations will no longer be permitted to broadcast in an analog format and must thereafter transmit in a digital format. 2 2 Congress established February 17, 2009, as the date for the completion of the transition from analog to digital broadcast television. *See* Pub. L. No. 109-171, Section 3002(a), 120 Stat. 4 (2006). We note that Canada is planning a digital television transition in 2011 and Mexico is planning for a transition in 2021. *See, e.g* ., Associated Press, *Digital Switch Raises Alarm Near Border* , http://www.siliconvalley.com (Last accessed on January 14, 2008). These developments are important because Section 111 covers the secondary retransmissions of distant broadcast signals from Mexico as well as Canada. *See* 17 U.S.C. 111(c)(1). At present, cable operators are retransmitting the analog and digital signals of the same television station under the FCC’s local broadcast signal carriage rules 3 and under Section 111 of the Copyright Act. In most cases, the program content transmitted on the primary digital signal is the same as that found on the analog signal, except that the picture quality of a digital television signal is vastly improved. When a digital broadcast signal replicates the analog signal, it is called simulcasting. The signal, or digital stream as it is now called, could be in a high definition digital format or a lower quality standard definition digital format. 3 *See Carriage of Digital Television Broadcast Signals* , 16 FCC Rcd 2598, 2618 (2001). We note that the FCC recently adopted new rules for the retransmission of local digital signals by satellite carriers under Section 338 of the Communications Act. Recognizing satellite capacity limitations, the FCC promulgated carriage requirements phased in over a course of four years. Satellite carriers must provide carriage of local stations’ HD signals if any local station in the same market is carried in HD, pursuant to the following schedule:

(1)In at least 15% of the markets in which they carry any station pursuant to the statutory copyright license in HD by February 17, 2010;

(2)In at least 30% of the markets in which they carry any station pursuant to the statutory copyright license in HD no later than February 17, 2011;

(3)In at least 60% of the markets in which they carry any station pursuant to the statutory copyright license in HD no later than February 17, 2012; and

(4)In 100% of the markets in which they carry any station pursuant to the statutory copyright license in HD by February 17, 2013. Implementation of the Satellite Home Viewer Improvement Act of 1999: *Local Broadcast Signal Carriage Issues and Retransmission Consent Issues,* Second Report and Order, CS Docket No. 00-96 (rel. March 27, 2008). Multicasting, on the other hand, is the process by which multiple streams of digital television programming are transmitted at the same time over a single broadcast channel by a single broadcast licensee. Currently, broadcast stations offer multicast streams carrying news, weather, sports, religious material, as well as foreign language programming (especially, but not limited to, Spanish programming). 4 For example, Station WRAL in Raleigh, North Carolina, (owned by Capitol Broadcasting Corporation or “CBC”) transmits its analog signal (WRAL-TV) on channel 5 and its primary digital signal (WRAL-DT) on channel 5.1, which simulcasts (in both standard definition and high definition) the analog programming schedule. It is also engaged in multicasting by transmitting a 24-hour news channel (WRAL-NC) on channel 5.2 and locally-produced programming on channels 5.3 (WRAL-DT3) and 5.4 (WRAL-DT4). *See* http://www.wral.com/ These digital programming streams are broadcast from a single transmitter. 4 *See* Allison Romano, *Local Stations Multiply* , Broadcasting & Cable, March 10, 2008 (noting that local television stations plan to launch several new multicast programming streams in the months ahead. Some possible streams include: LATV (bilingual Spanish-English entertainment), Retro Television Network (classic television shows); .2 Network (movies from the last decade); Weather Plus (weather stream co-owned by NBC and its affiliates); Blue Highway TV (gospel and country music programming); CoLours TV (programming for minority and ethnic communities); Fan Vision (local sports); Funimation (Anime and Japanese cartoons); Mexicanal (Spanish-language entertainment); Motor Trend TV (automotive-related programming); and World Championship Sports Network (sports programming). B. Royalties for the retransmission of non-network programming *Copyright Owners’ Petition* . In their Petition, Copyright Owners acknowledge that some cable systems are separately reporting carriage of digital and analog broadcast signals and, in their view, doing so appropriately. However, they stated that it was unclear whether all cable systems are identifying carriage of both types of signals or are doing so in a consistent and uniform manner. According to Copyright Owners, the lack of uniformity in reporting the carriage of both analog and digital broadcast signals necessitates clarification of the Copyright Office’s existing regulations. Copyright Owners therefore have asked the Copyright Office to clarify that, if a cable operator chooses to carry a television broadcast station’s analog and digital signals, it should identify those signals separately in Space G on its Statement of Account form (e.g., as WRC-TV on channel 4 and WRC-DT on channel 48). Copyright Owners asserted that separate designation provides notice that a cable operator is carrying digital signals and may be charging subscribers additional fees that should be included in the gross receipts calculation. Moreover, in the context of distant signal carriage, Copyright Owners argued that separate reporting of both the digital and the analog signal is necessary because such carriage may trigger an additional royalty obligation. Copyright Owners have also asked the Copyright Office to clarify that a cable operator carrying multicast signals must identify those signals separately in Space G on its SOA form. They state that a cable operator choosing to carry all of the digital channels transmitted by WRAL, for example, should state in Space G of its SOA that it carried WRAL-DT on channel 5.1; WRAL-NC on channel 5.2; WRAL-DT3 on channel 5.3; and WRAL-DT4 on channel 5.4. Copyright Owners asserted that separate reporting is necessary in the case of carriage of multiple digital channels, where the copyright owners of the programming on such separate channels may be wholly different from the copyright owners of the programming on the primary digital stream. For purposes of ascertaining the royalties owed, Copyright Owners suggested that where the programming is identical, the DSE values for carriage of a distant analog and a digital signal would be the same. However, Copyright Owners have urged the Copyright Office to require separate calculation of DSE values and royalty payments for carriage of multiple streams of a distant digital station. If, for example, a cable operator chose to retransmit two streams from a particular station that is engaging in multicasting, one of which contained network programming and the other of which did not, they believe that the operator should be considered as retransmitting 1.25 DSEs (1.00 DSE for the independent programming stream plus .25 DSE for the network programming stream). *NOI* . In the NOI, the Office asked whether a cable operator must pay separately for the retransmission of a digital signal and an analog signal where the signals carry identical programming to the subscriber. Alternatively, the Office asked whether the statutory license allowed for a single payment for the delivery of the same programming albeit in two different formats. The Office also asked whether the determination would be different if the digital signal included only a subset of the programming from the analog signal or if the digital signal was broadcast in a high definition format. It also sought comment on Copyright Owners’ regulatory treatment of digital multicast signals under Section 111. 71 FR at 54950-51. *Comments* . NCTA argues that no additional liability attaches on account of carriage of a digital signal where the cable operator is already paying for carriage of its analog counterpart. In support of its argument, NCTA relies upon the definition of a “primary transmission” in 17 U.S.C. 111(f). It further argues that since this provision used the term “signals” as opposed to just “signal,” Congress had already contemplated the retransmission of multiple signals, each with different distant digital programming, at a single DSE value. It states that a cable operator’s royalty payment should not be increased based on carriage of multiple signals from the same primary transmitter. NCTA Comments at 4-5. NCTA asserts that the amount a cable operator pays for distant signal carriage under Section 111 is based on the number and type of `stations’ carried, not the number of signals transmitted by each station. NCTA notes that a DSE is defined as the “secondary transmission of any nonnetwork television programming carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programming.” It remarks that the DSE value depends on whether the station engaged in the primary transmission is considered to be an “independent,” “network,”or “noncommercial educational” station. NCTA comments that a “network station” is only assigned a single DSE (.25) even if a station is affiliated with “one or more television networks in the United States providing nationwide transmissions.” Based on the foregoing, NCTA concludes that nothing in the Act indicates that a single “station,” for Section 111 purposes, must transmit only one signal. *Id* . at 5. With regard to multicasting, NCTA states that in a small number of cases, a cable operator may be importing a digital multicast stream from a distant station that differs from the programming on the analog version of the station already carried on a distant basis. NCTA argues that the Act does not provide a mechanism for assigning additional DSE values in such a case, and the Copyright Office should refrain from doing so without explicit statutory authority. NCTA Comments at 6. NCTA believes that Section 111 does not require cable operators to pay additional royalties for the retransmission of additional signals being transmitted by a single station. Specifically, NCTA asserts that the carriage of a separate digital multicast signal would be no different, from the standpoint of royalty calculations, than carriage of a separate copyrighted work transmitted by a station along with its main broadcast programming transmission. NCTA states, for example, that if a cable system were to retransmit closed captioning or other material, program-related or not, that might be in the vertical blanking interval of an analog television signal, no additional copyright payment would be owed. NCTA notes that so long as the additional material constitutes a “primary transmission” service, it would be covered by Section 111 and no additional DSE value would be assigned. It further notes that, for Section 111 purposes, the DSE value would not change, regardless of its status as “program-related” material for FCC purposes. NCTA argues that the same principle would apply where a cable operator retransmits multiple streams of digital programming transmitted by the same station. *Id* . at 6. NCTA also argues that a separate payment mechanism for digital transmissions was not intended by Congress, pointing to Section 119 of the Act for comparison. NCTA asserts that in 2004, Congress expressly amended Section 119 to require separate payments for a satellite carrier’s secondary transmission of the primary digital transmissions of network stations and superstations *See* NCTA Comments at 6-7 citing 17 U.S.C. 119(c)(2). Absent a similar amendment to Section 111, NCTA argues that no separate DSE should be calculated for “distant digital signal carriage when the operator already pays for carriage of that primary transmitter’s analog signal.” NCTA Comments at 7. NCTA concludes that a cable operator should not have to pay more than once to import any number of signals (even if the programming differs) transmitted by a single broadcaster. NCTA argues that the plan devised by Copyright Owners “would lead to inflated and unfair copyright fees.” NCTA asserts that the Copyright Office should not impugn additional royalties under Section 111 when the language of the Act does not require it. NCTA Reply Comments at 2-4. Copyright Owners are principally concerned with the retransmission of multicast streams by cable operators under Section 111. They state that Section 111(f) assigns a DSE “value of one to each independent *station* and the value of one-quarter to each network station and noncommercial educational *station* for the nonnetwork programming so carried pursuant to the rules, regulations, and authorizations of the Federal Communications Commission.” Copyright Owners Reply Comments at 19-20 (emphasis in original). According to Copyright Owners, the meaning of the term“signals” is not the linchpin in this debate, rather the focus should be on the meaning of the term “station” as it is used in Section 111(f). That is, whether all multicast channels from a single broadcaster should be treated as one “station” for purposes of assigning a DSE value (NCTA’s position), or whether each channel transmitting separate programming should be treated as a separate “station” (Copyright Owners position). *Id.* Copyright Owners note that although Congress defined “independent station,” “network station” and “noncommercial station” in Section 111(f), it did not define the general term “station” in Section 111. They comment that in 1976, a television station had broadcast programming on a single analog channel only. *Id* . at 21, citing *Carriage of Digital Television Broadcast Signals* , 16 FCC Rcd 2598, 2618 (2001). They state that it was not until the early 1990s that a “common understanding” began to develop that a digital televison station might engage in multicasting. Copyright Owners argue that there is no evidence that when Congress adopted the DSE definition in 1976, it contemplated that a television station would broadcast programming on more than a single channel, or that if a station did so, a single DSE value would encompass those multiple channels. They remark that this result is not surprising given that no station engaged in any type of multicasting until twenty years after Section 111 was enacted. Copyright Owners assert that these facts undercut NCTA’s effort to encompass as many as six multicast streams within a single DSE value for purposes of calculating the Section 111 royalty payment. *Id* . Copyright Owners state that there are several reasons why the Copyright Office should decide that each multicast stream should be considered a separate “station” for purposes of the Section 111(f) definition of DSE. First, they argue that copyright owners should be compensated for all programming being retransmitted by Form 3 cable operators under Section 111, regardless of format. They state that a central principle underlying Section 111 was that royalties should increase, at least for larger systems, as the amount of distant programming increased. Next, Copyright Owners assert that a cardinal rule of statutory construction is that a statutory provision must be interpreted as a whole. In this case, they state that NCTA’s proposed interpretations of Section 111(f) should be considered in light of Section 801(b)(2)(B), which arguably reflects a Congressional policy that Form 3 cable operators should pay a separate royalty for the carriage of non-network programming that they were not authorized to carry under the FCC’s 1976 rules. They state that NCTA’s proposal would subvert that policy by allowing cable operators to retransmit substantial amounts of non-permitted programming without paying a separate royalty, as long as that programming was contained on a multicast stream broadcast by a “permitted” station. Third, Copyright Owners assert that an examination of some of the practical consequences of NCTA’s suggested interpretation underscores its incompatibility with Congressional intent. They state that the DSE definition specifies certain circumstances where a cable operator may reduce or prorate a DSE value, such as when an operator retransmits a distant signal on a “part-time” basis because of the “lack of activated channel capacity.” According to Copyright Owners, in such cases, the cable operator is able to pay a fraction of the DSE value, using “the values for independent, network, and noncommercial educational stations, as the case may be, to be multiplied by a fraction which is equal to the ratio of the broadcast hours of such station carried by the cable system to the total broadcast hours of the station.” *Id.* at 24, citing 17 U.S.C. 111(f). Copyright Owners argue that if NCTA’s interpretation were to be adopted, a cable system that otherwise qualified for part time carriage could cut in half the DSE value it had been assigning to a distant network affiliate simply by not carrying the affiliate’s 24 hour weather multicast channel. They assert that a cable system could pay as little as one-sixth of its prior royalty for carriage of the same affiliate simply because the affiliate added five multicast channels that the system did not retransmit. *Id.* at 25. Copyright Owners state a similar problem would arise under the “network station” definition that requires a “station” to transmit network programming “for a substantial part of that station’s typical broadcast day.” Copyright Owners argue that if NCTA’s position were accepted, such affiliates’ classification as network stations might be questioned if they multicast any significant amount of nonnetwork programming on additional channels, so that the network programming would no longer occupy a substantial part of the station’s typical broadcast day; in short, acceptance of NCTA’s theory could lead to the conclusion that network affiliates choosing to multicast no longer qualified as “network stations.” Copyright Owners conclude that this would not be the result that Congress intended. *Id.* at 22-25. *Discussion* . As seen in the commenters’ discussion, a critical step in the analysis is choosing the proper statutory construct for assessing copyright liability for the retransmission of distant digital television signals under the Act. Section 111 uses various terms, such as “stations,” “signals,” “distant signal equivalents,” and “nonnetwork television programming,” to delineate the “product” being carried by cable operators and for which royalty fees must be paid. While the statute contains specific definitions of “network station,” “independent station,” and “noncommercial station,” the general term “station” is not defined in Section 111. There are certain terms that Congress did elaborate upon in Section 111’s legislative history. Congress stated that in any particular case, the “primary” transmitter is the one whose signals are being picked up and further transmitted by a “secondary” transmitter which, in turn, is someone engaged in “the further transmitting of a primary transmission simultaneously with the primary transmission.” H. Rep. No. 94-1476, 94th Cong., 2d Sess., at 91. In this instance, it mentioned the term “signal” in the plural form, but this is far from supporting NCTA’s interpretation. Congress also explained that a “distant signal equivalent“ is assigned to all “distant“ signals. It stated that distant signals are defined as signals retransmitted by a cable system, in whole or in part, outside the local service area of the primary transmitter. It noted that different values are assigned to independent, network, and educational stations because of the different amounts of viewing of “non-network programming” carried by such stations. *Id.* at 90. While Congress discussed the meaning of the term, “distant signals,” it did not explain the meaning and significance of the term “signal,” or how it is different from the term “station,” for cable copyright purposes. It is axiomatic that Section 111 is not a model of statutory clarity. 5 The terms “station” and “signal” are used, interchangeably, dozens of times throughout the provision. It may have been that Congress did not find it necessary to clarify such terms in 1976 because there was no confusion as to the subject being transmitted by cable operators at that time. However, for our purposes here, we must parse out what the terms mean, so that we can effectuate the intent of Congress when it enacted Section 111. In the absence of clarifying language in the Copyright Act, reference to the Communications Act of 1934 may help. 5 *See* Daniel L. Brenner, Monroe E. Price, Michael Myerson, *Present Rate Structure* . Cable Television and Other Nonbroadcast Video, § 9.9 (Database updated April 2007) (“The rate structure governing cable copyright payments is complex. It reflects the tremendous pressures exerted on Congress by the industries affected by the legislation. As all parties sought to fashion regulations that favored their own financial interests, they preferred ambiguity or possible inconsistency to potentially unfavorable clarity.”) Under the Communications Act, the term “broadcast station“, “broadcasting station”, or “radio broadcast station” means a radio station equipped to engage in broadcasting. 47 U.S.C. 153(5). 6 This is the physical facility used to transmit radio signals. The term “broadcasting,” in turn, means the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations. 47 U.S.C. 153(6). Broadcasting, then, is the act of transmitting radio signals. The term “station license,” “radio station license,” or “license” means that instrument of authorization required by the Communications Act or the FCC for the use or operation of apparatus for transmission of energy, or communications, or signals by radio, by whatever name the instrument may be designated by the Commission. 47 U.S.C. 153(42). A broadcast licensee is a holder of a broadcast license and has the authority under law to engage in broadcasting. 7 Each of these terms were part of the Communications Act when Congress amended Title 17 in 1976 to include Section 111. And, each of these terms relates to the act of broadcasting and the dissemination of radio signals. None of the terms define the content of the transmission for either communications law or copyright law purposes. As such, when Congress used the term “station,” in either the singular or the plural, in Section 111, it is reasonable to conclude that it did not intend for the term to define the scope of the cable operator’s statutory royalty obligations. 6 The Communications Act was amended in 1996 to include new definitions applicable to television broadcast licensees. Under the Act, the term “analog television service ” means television service provided pursuant to the transmission standards prescribed by the Commission in Section 73.682(a) of its regulations (47 CFR 73.682(a)). 47 U.S.C. 153(49)(A). The term “digital television service ” means television service provided pursuant to the transmission standards prescribed by the Commission in Section 73.682(d) of its regulations (47 CFR 73.682(d)). 47 U.S.C. 153(49)(B). 7 In 1997, the FCC determined that the analog and digital facilities of a station are to be licensed under a single paired license. *See Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service* , Fifth Report and Order, 12 FCC Rcd 12809 (1997). Congress did not define the singular term “signal” in the Communications Act. However, it did define the term “radio communication” as the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission. 47 U.S.C. 153(33). Signals, as seen above, are a particular kind of radio communication transmitted by a broadcast station. Again, however, the Communications Act does not delineate the specific type of programming carried by the signal transmission. To further elucidate the meaning of the term “signal,” it is useful to examine the history of the retransmission consent provisions of the Communications Act. Prior to 1992, cable operators were not required to seek the permission of a local broadcast station before carrying its signal nor were they required to compensate the broadcaster for the value of its signal. Congress found that a broadcaster’s lack of control over its signal created a “distortion in the video marketplace which threatens the future of over-the-air broadcasting.” *See* S. Rep. No. 102-92, 102d Cong., 1st Sess.

(1991)at 35. In 1992, Congress acted to remedy the situation by giving a commercial broadcast station control over the use of its signal through statutorily-granted retransmission consent rights. Retransmission consent effectively permits a commercial broadcast station to seek compensation from a cable operator for carriage of its signal. Congress noted that some broadcasters might find that carriage itself was sufficient compensation for the use of their signal by a multichannel video programming distributor (“MVPD”) while other broadcasters might seek monetary compensation, and still others might negotiate for in-kind consideration such as joint marketing efforts, the opportunity to provide news inserts on cable channels, or the right to program an additional channel on a cable system. Congress emphasized that it intended “to establish a marketplace for the disposition of the rights to retransmit broadcast signals” but did not intend “to dictate the outcome of the ensuing marketplace negotiations.” *Id.* at 36. With regard to copyright issues, the legislative history accompanying Section 325 indicates that Congress was concerned with the effect retransmission consent may have on the Section 111 license stating that “the Committee recognizes that the environment in which the compulsory copyright [sic] operates may change because of the authority granted broadcasters by section 325(b)(1).” *Id.* The legislative history later stated that cable operators would continue to have the authority to retransmit programs carried by broadcast stations under Section 111. *Id.* In 2001, the FCC established a new policy permitting a broadcast station to treat its analog and digital signals differently for retransmission consent purposes. Under this paradigm, a television station would be allowed to choose must carry or retransmission consent for its analog signal and retransmission consent for its digital signal during the DTV transition period. The FCC also concluded that a broadcaster and a cable operator may negotiate for partial carriage of a local digital television signal. The FCC believed that this policy, which would apply to digital-only television stations and television stations with both analog and digital signals, would benefit both parties and help to accomplish the Congressional goal of smooth DTV transition. To the point, the FCC noted that the broadcaster gained access to cable subscribers for some fraction of its signal, and the cable operator could conserve channel capacity and carry that programming stream which it believes subscribers would want. The FCC stated that cable operators were likely to negotiate retransmission consent agreements with more stations if carriage of something less than the full complement of a broadcaster’s digital signal is permitted. *Carriage of Digital Television Broadcast Signals* , 16 FCC Rcd at 2610-11. This discussion shows that Congress specifically intended to provide a broadcast “station” with a mechanism to extract the value of its “signal” when being retransmitted by a cable operator or other multichannel video programming distributor. 8 This was a “right” that was clearly lacking in the copyright law. The legislative history of Section 325 of the Communications Act supports the notion that Congress was concerned about compensating a broadcast station for the retransmission of its signal by a cable operator, not the content carried on the signal. 9 The FCC later allowed a broadcast station to segregate its digital signal to further realize the value of specific programming streams in the marketplace. 8 For retransmission consent purposes, the term “television broadcast station ” means an over-the-air commercial or noncommercial television broadcast station licensed by the Commission under subpart E of part 73 of title 47, Code of Federal Regulations, except that such term does not include a low-power or translator television station. 47 U.S.C. 325(b)((7). 9 Prior FCC statements on this matter support our view. When implementing the Communications Act’s new must carry and retransmission consent provisions in 1993, the FCC stated that “the legislative history of the 1992 Act suggests that Congress created a new communications right in the broadcaster’s signal, completely separate from the programming contained in the signal. Congress made clear that copyright applies to the programming and is thus distinct from signal retransmission rights.” The FCC interpreted Section 325 as meaning that the new right may be bargained away by broadcasters in future contracts and conceivably could have been bargained away in some existing contracts. In so holding, the FCC stressed that “retransmission consent is a right created by the Communications Act that vests in a broadcaster ’s signal; hence, the parties to any contract must have bargained over this specific right, not a copyright interest.” The FCC then stated that “Just as Congress made a clear distinction between television stations’ rights in their signals and copyright holders’ rights in programming carried on that signal, we intend to maintain that distinction as we implement the retransmission consent rules.” *See Broadcast Signal Carriage Issues* , 8 FCC Rcd 2965, 3004 (1993). So, it appears that the terms “station” and “signal,” are not necessarily controlling in our analysis here. In contrast, Section 111 explicitly discusses the value of the nonnetwork programming carried by a broadcast station. Congress has used the term “nonnetwork programming” throughout the legislative history accompanying the Act. For example, Congress found that the retransmission of distant “non-network programming” by cable systems causes damage to the copyright owner by distributing the program in an area beyond which it has been authorized. Congress also stated that such retransmission adversely affects the ability of the copyright owner to exploit the work in the distant market. For these reasons, Congress concluded that the copyright liability of cable television systems under the statutory license should be limited to the retransmission of distant “nonnetwork programming.” H. Rep. No. 94-1476, 94th Cong., 2d Sess., at 90. Further, when discussing copyright royalty distributions, Congress noted that copyright royalty fees should be made only for the retransmission of distant “nonnetwork programming,” and that the claimants were limited to

(1)copyright owners whose works were included in a secondary transmission made by a cable system of a distant “nonnetwork television program”;

(2)any copyright owner whose work is included in a secondary transmission identified in a statement of account deposited under Section 111(d)(2)(A); and

(3)any copyright owner whose work was included in distant “nonnetwork programming” consisting exclusively of aural signals. *Id.* at 97. The statutory definition of distant signal equivalents, and accompanying legislative history, also emphasize the term “nonnetwork programming.” For cable copyright royalty purposes, a “distant signal equivalent” is the value assigned to the *secondary transmission of any nonnetwork television programming* carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programming. It is computed by assigning a value of one to each independent station and a value of one-quarter to each network station and noncommercial educational station for the nonnetwork programming so carried pursuant to the rules, regulations, and authorizations of the Federal Communications Commission in effect in 1976. 17 U.S.C. 111(f) (emphasis added). The emphasis on DSEs is reinforced by Section 801(b)(2)(B), which, as noted by Copyright Owners, reflects the legislative policy that cable operators should pay a separate royalty for the carriage of non-network programming that they were not authorized to carry under the FCC’s 1976 rules. 10 10 This provision states, in relevant part: “In the event that the rules and regulations of the Federal Communications Commission are amended at any time after April 15, 1976, to permit the carriage by cable systems of additional television broadcast signals beyond the local service area of the primary transmitters of such signals, the royalty rates established by section 111(d)(1)(B) may be adjusted to ensure that the rates for additional distant signal equivalents resulting from such carriage are reasonable in light of the changes effected by the amendment to such rules and regulations.” 17 U.S.C. 801(b)(2)(B). Congress noted that the definition of a “distant signal equivalent’” is central to the computation of the royalty fees payable under the statutory license. According to the legislative history, it is the value assigned to the secondary transmission of any nonnetwork television programming carried by a cable system, in whole or in part, beyond the local service area of the primary transmitter of such programming. It is computed by assigning a value of one

(1)to each distant independent station and a value of one-quarter (1/4) to each distant network station and distant noncommercial educational station carried by a cable system, pursuant to the rules and regulations of the FCC. The legislative history states, for example, that a cable system carrying two distant independent stations, two distant network stations and one distant noncommercial educational station would have a total of 2.75 distant signal equivalents. H. Rep. No. 94-1476, 94th Cong. 2d Sess., at 100. We are confronted with an archaic and arcane statute and a burgeoning new technology that was never contemplated by Congress in 1976. Both NCTA and Copyright Owners have submitted reasonable interpretations of the existing statutory language and its application to the retransmission of digital television streams. Our task here is to read Section 111 in a manner that keeps the statute functioning and in a way to avoid regulatory chaos. As such, the most reasonable interpretation, and one that is fully supportable by language and history of the Copyright Act (as well as the Communications Act), is one that best compensates copyright holders for the public performance of their works. We therefore propose that the statutory linchpins in this discussion are not “signals,” as proffered by NCTA, nor “stations,” as noted by Copyright Owners, but “DSEs” and “nonnetwork television programming.” While the Copyright Act is silent on the treatment of duplicative distant signals in Section 111, the DSE definition does not require cable operators to pay additional royalties for the digital simulcast of a distant television station’s analog signal. In this case, there is no unique nonnetwork television programming retransmitted by the cable system. The copyright owner, in this instance, is already being compensated for the value of the work through the payment of royalties for the analog signal. Therefore, if the programming carried on the primary digital signal is duplicative of the programming carried on the analog signal, double payment of royalties for the retransmission of both by cable operators is not required. In practical terms, if a cable operator lists an analog signal and a digital simulcast signal on its statement of account, it only has to pay a single DSE. However, we propose that a cable operator must pay royalties on each retransmitted distant digital multicast stream carrying different programming from the channel line-up on other streams. Each multicast stream should be treated as a separate DSE for Section 111 purposes. It is important to note here that in 1976, an analog television station was limited by technology to being able to transmit a single channel of programming during a typical broadcast day. Currently, because of digital technology, a digital television station is able to transmit multiple channels of programming during a broadcast day. To the licensee, that is like having the ability to program multiple stations. To the cable subscriber, each multicast stream is received as, and appears to be, a separate “station” with different programming schedules. This is a critical distinction from program-related material embedded in the analog station’s vertical blanking interval that cannot be seen nor has any instrinsic value to cable subscribers. In this instance, we propose that copyright owners must be compensated because there is new nonnetwork programming being carried by the cable operator regardless of whether multiple digital signals are broadcast from a single transmitter. Thus, if there is any original, non-duplicative programming on a multicast stream, then royalties must be paid according to the DSE value that would be assigned to that signal based upon its classification as either a network, independent, or noncommercial station. A cable operator must report the retransmission of each multicast programming stream it carries on its SOA. So, if an operator retransmits a distant network station analog signal, a digital simulcast of the network, and two separate digital multicast network station streams, the DSE would equal .75 (.25 for the analog, 0 for the digital simulcast, .25 for the first stream and .25 for the second stream). 11 In accordance with the rules proposed below, a cable operator shall identify the types of digital streams retransmitted on its Statement of Account so that examiners are able to process the forms submitted to the Copyright Office. While Congress certainly did not contemplate the advent of multicasting when it enacted Section 111 thirty years ago, our proposal comports with the language, intent, and goals of the Act. 12 We believe that the Copyright Office has the statutory authority to effectuate this policy outcome without legislative action. 13 11 This does not include the possibility of the 3.75% fee, or syndicated exclusivity surcharge, which may or may not apply. 12 The FCC has recognized the value of multicasting and its ability to reach audiences with different programming on different streams. For example, in 2004, the FCC amended its children’s television rules and policies to ensure that they continue to serve the interests of children during and after the DTV transition. Among other things, the FCC revised its three-hour core programming processing guideline (where a television broadcast licensee is required to air three hours per week of programming “specifically designed” to serve the educational and informational needs of children ages 16 and under) as it applies to DTV signals. For those broadcasters that engage in multicasting, the rule generally provides that a broadcaster’s core programming obligation increases in proportion to the amount of free programming being offered. That is, a digital television station must provide additional children’s programming on each multicast it offers. *See Children’s Television Obligations of Digital Television Broadcasters* , 19 FCC Rcd 22943 (2004). 13 In the 2004 SHVERA, Congress was principally concerned with the reauthorization of Section 119 that was to expire without legislative action. Section 111, which is permanent, was not the subject of discussion at that time and any attempt to have amended the cable statutory license would have unduly delayed the Section 119 renewal process. When discussing DSEs here, it is also important to recognize that under Section 111(f) of the Copyright Act, the values for independent, network, and noncommercial educational stations are subject to some limitations. For example, where the FCC’s rules require a cable system to omit the further transmission of a particular program, and the rules also permit program substitution, no value is assigned to the substituted or additional program. Further, where the FCC’s rules permit a cable system, at its election, to omit the further transmission of a particular program and permit the substitution of another program, the value assigned for the substituted or additional program shall be, in the case of a live program, the value of one full distant signal equivalent multiplied by a fraction that has as its numerator the number of days in the year in which such substitution occurs and as its denominator the number of days in the year. Also, in the case of a station carried pursuant to the FCC’s late-night or specialty programming rules, or a station carried on a part-time basis where full-time carriage is not possible because the cable system lacks the activated channel capacity to retransmit on a full-time basis all signals which it is authorized to carry, the values for independent, network, and noncommercial educational stations are multiplied by a fraction which is equal to the ratio of the broadcast hours of such station carried by the cable system to the total broadcast hours of the station. These exceptions are important to recognize because they demonstrate that Congress explicitly limited the value of certain nonnetwork programs, for royalty purposes, when the situation so warranted. 14 There are no such exceptions for digital signals retransmitted under Section 111. 14 The legislative history accompanying this provision states that this “discretionary exception is limited to those FCC rules in effect on the date of enactment of this legislation. If subsequent FCC rule amendments or individual authorizations enlarge the discretionary ability of cable systems to delete and substitute programs, such deletions and substitutions would be counted at the full value assigned the particular type of station provided above.” H. Rep. No. 94-1476, 94th Cong., 2d sess., at 100. C. Ancillary and Supplementary Streams *Background.* DTV technology allows television stations to use part of their digital bandwidth for new ancillary programming and data services. These adjunct services can be provided simultaneously with high definition or standard definition DTV programs, and can deliver virtually any type of data, audio or video, including text, graphics, software, web pages, video-on-demand, and niche programming. Some of the content produced and distributed by the television station may be related to the program being broadcast ( *i.e.* , “program-related material”). For example, a television station may transmit interactive sports statistics along with the local major league baseball game being digitally broadcast. Copyright Owners did not directly discuss the retransmission of digital program-related material under Section 111 in their Petition for Rulemaking. However, they did suggest that if one digital broadcast stream contained only material that was part of the copyrighted programming on the other digital broadcast stream, the cable operator would report only a single DSE (or .25 DSE if the stream qualified as a “network station” as defined in the Copyright Act). Copyright Owners cited to *WGN v. United Video* , 693 F.2d 622 (7th Cir. 1982) in support. We sought comment on Copyright Owners’ recommendation in the NOI and also asked whether the 1982 *WGN* case, decided in an analog context, is applicable in this context. 71 FR at 54951. 15 No party filed comments in response to this specific inquiry. However, as seen above, NCTA raises arguments about program-related material and multicasting that allude to this case. *See, supra* , at 11. 15 Satellite carriers and copyright owners have agreed that no separate copyright royalty payment would be due for any program-related material contained on the digital broadcast stream within the meaning of *WGN. See Rate Adjustment for the Satellite Carrier Compulsory License* , 70 FR 39178, 39179 (July 7, 2005). We also must recognize that NAB, in its comments filed in response to the Copyright Office’s Section 109 Notice of Inquiry, argues that separate rules for the retransmission of digital broadcast signals are unnecessary; instead, some relatively minor clarifications and amendments should clarify that the existing rules apply without regard to the broadcast format of a signal. According to NAB, each separate broadcast signal with a stream of programming retransmitted by a cable system to subscribers should be reported and considered separately for purposes of calculating Section 111 royalties. It comments that if the material on one channel consists entirely of material that is identical to or related to the copyrighted material on another channel, within the meaning of *WGN v. United Video, Inc.* , 693 F.2d 622 (7 th Cir. 1982), only one DSE value would be assigned to both channels. Based on the preceding comments, a discussion of *WGN* is important in both the royalty treatment of distant digital multicast signals and how the Office should examine “program-related” material for Section 111 purposes. In *WGN* , an independent television station in Chicago sought an injunction against United Video, a telecommunications common carrier, to prohibit it from retransmitting its copyrighted television program to the carrier’s cable television system customers after stripping the vertical blanking interval (“VBI”) of teletext information. The 7th Circuit held that the teletext was covered by the underlying copyright on the news program where it was intended to be seen by the same viewers that were watching the nine o’clock news on WGN, during same interval in which that news was broadcast, and it was an integral part of the news program. The teletext portion of the program itself, was encoded in vertical blanking interval of the television signal. The Court held that this was the case even though the teletext could not be viewed simultaneously with the news program and was intended to be seen as if it were on a different channel, even though it was part of the same signal. The Court concluded that the television station’s copyright in its news program was infringed by the deletion of the teletext portion of the broadcast by United Video. *Discussion* . As an initial matter, we must note that digital multicasting is different than the teletext provided in the vertical blanking interval of WGN’s analog broadcast signal for a variety of reasons. From a technical standpoint, there is no VBI in the digital television context. Rather, there are digital streams of data that can be dynamically tailored to transmit any type of programming within the bandwidth constraints of the digital television signal. There are also significant differences in the manner by which multicasting is presented. First, multicast streams are not intended by television stations to be seen by the same viewers. One of the benefits of multicasting is that a broadcaster can reach different audiences with different programs than the kind broadcast on the primary digital stream. Second, multicast streams exist independent of each other, at least from the viewers’ perspective. While the streams are transmitted simultaneously by a digital television station, the programming streams are generally not entwined with each other. For example, a single digital television station may be multicasting separate digital programming streams of ABC, NBC, and Fox programming at the same time and be seen separately by viewers at home. Finally, each multicasting stream in the example given is not anchored to, or is an integral part of, the video programming of the main video stream (as designated by the broadcaster). Multicasts are more like separate “stations” rather than one station with programming streams orbiting around it. As such, most multicast streams would not be considered program-related for Section 111 purposes, and therefore, should not be bundled together for DSE determinations. Rather, each stream should have its own distinct DSE value in line with the points noted elsewhere in this NPRM. There are certain exceptions to this general rule. For example, a multiple camera angle sporting event may be considered a program-related event under the *WGN* factors. In this instance, this programming is intended to be seen by the same viewers, they are related to each other since they are different perspectives of the same event, and they are an integral part of the same broadcast. As such, the retransmission of such nonnetwork programming would be assigned a value of a single DSE. It is important to note that FCC has determined that, to avoid inconsistency with copyright law, the factors enumerated by the 7th Circuit in *WGN* should be used in deciding whether material in the vertical blanking interval of local television stations is program-related and therefore entitled to mandatory cable carriage. 16 The FCC noted that there could also be instances in which material that does not fit squarely within the factors listed in WGN would be program-related. *See Broadcast Signal Carriage Issues* , 8 FCC Rcd 2985 n.235 (1993); *Broadcast Signal Carriage Issues* , Reconsideration Order, 9 FCC Rcd 6723, 6732 n.128. 614. *See also In re Gemstar International Group., Ltd.* , 16 FCC Rcd 21531

(2001)(holding that an electronic program guide developed by Gemstar International, and carried in the VBI of local broadcast stations, was not covered by the signal carriage obligations of Section 614). 16 Pursuant to Section 614 of the Communications Act, and implementing rules adopted by the FCC, a broadcast station is entitled to assert mandatory carriage rights on cable systems located within the station’s market. Specifically, cable operators are required to carry the primary video, accompanying audio, and closed captioning information in line 21 of the VBI, in its entirety, of local commercial stations in fulfilling their must carry obligations. Cable operators also are required, to the extent technically feasible, to retransmit program-related material carried in the VBI. Carriage of other non-program-related material in the VBI (including teletext and other subscription and advertiser-supported information services) is at the discretion of the cable operator. * See* 47 U.S.C. 534(b)(3). Therefore, unique audio and visual material that is related to a program being transmitted by a digital broadcast television signal is considered covered under Section 111 of the Act. If such material is embedded in the digital programming stream, such as new interactive content like multiple camera angles, then a cable operator should not have to pay separate royalties for the additional material. However, if the distant digital broadcast station multicasts unique and separate streams of programming, and they are retransmitted pursuant to Section 111, then a cable operator must pay royalties for each stream. *WGN* provides support for our interpretations here. In reviewing the facts and law presented in *WGN* , the 7th Circuit stated that “Congress probably wanted the courts to interpret the definitional provisions of the new act flexibly, so that it would cover new technologies as they appeared, rather than to interpret those provisions narrowly and so force Congress periodically to update the act.” 693 F.2d at 628. The Court comments that the House Report states: “Authors are continually finding new ways of expressing themselves, but it is impossible to foresee the forms that these new expressive methods will take. The bill does not intend either to freeze the scope of copyrightable technology or to allow unlimited expansion to areas completely outside the present congressional intent. Section 102 [a lengthy enumeration of copyrightable works of authorship, including audiovisual works] implies neither that the subject matter is unlimited nor that new forms of expression within that general area of subject matter would necessarily be unprotected.” *Id.* citing H.R. Rep. No.1476, 94th Cong., 2d Sess. at 51

(1976)(emphasis added). The Court then states, “We take this passage, despite its hedging language, as some warrant for the method of interpretation employed in this opinion, which allows new types of “audiovisual work” to be recognized by analogy to the old.” *Id.* at 629. 17 No party filed comments disagreeing with this general principle. 17 Digital television applications are developing at a rapid pace and it is impossible to prognosticate future developments. In any event, broadcasters are currently working on technologies that would allow digital television station licensees to offer near on-demand news and weather, target ads at individual viewers, and transmit downloadable programming, games, and music. *See* TVNEWSDAY, *Digital TV Opens Up Two-Way Opportunities* , http://tvnewsday.com/articles/2008/02/28/daily.4/ (Last accessed on February 28, 2008). We are not in a position here to decide whether the retransmission of such material would be covered by Section 111. D. Application of Section 111 to Digital Signals In the NOI, we stated that the retransmission of digital signals was not expressly excluded under the cable statutory license, however, we sought comment on a number of practical problems associated with their retransmission under the existing Section 111 regulatory structure. At the outset, it is important to note that in their comments, Copyright Owners stress that separate rules for retransmission of digital broadcast signals are unnecessary. Instead, they ask the Copyright Office to clarify that the existing rules in Section 201.17 (Title 37 of the CFR) apply without regard to the broadcast format of a signal. Copyright Owners Comments at 3. As seen below, it is difficult to make such a broadbrush conclusion as Copyright Owners envision. Rather, a careful analysis of several cable copyright factors is necessary. 1. Local service areas and television markets *Background* . Under Section 111(f) of the Act, the “local service area of a primary transmitter,” in the case of a television broadcast station, comprises the area in which such station is entitled to insist upon its signal being retransmitted by a cable system pursuant to the rules, regulations, and authorizations of the Federal Communications Commission in effect on April 15, 1976, or such station’s television market as defined in Section 76.55(e) of title 47, Code of Federal Regulations (as in effect on September 18, 1993), or any modifications to such television market made, on or after September 18, 1993, pursuant to section 76.55(e) or 76.59 of title 47 of the Code of Federal Regulations. This is important because it determines whether a station is local or distant under Section 111. In the NOI, we asked whether a digital broadcast station’s television market for Section 111 purposes would be the same as the broadcast station’s television market for the analog signal. This question was directed at digital-only stations and those stations that broadcast in an analog and digital format during the transition period. We also sought comment on whether a digital signal could ever be considered local if the analog signal is considered distant, or vice versa. 71 FR at 54950. On this matter, Copyright Owners state that the television market for digital broadcast signals should again be determined by relying on the Section 111(f) definition of the `local service area of a primary transmitter,’ which refers to FCC rules to determine the market of a broadcast station. Again, Copyright Owners argue that broadcast format is irrelevant for this purpose. As for significantly viewed signals, Copyright Owners state that if the analog signal has “significantly viewed“ status in a specific community, its digital counterpart should have the same status for that community. *See* Copyright Owners Comments at 4. CBC states that if a station’s analog signal is considered local to a market for Section 111 purposes, then the station’s digital signals (including any multicast streams) should also be considered local to the market and therefore should be free from copyright liability under the statutory license. CBC Comments at 3. *Discussion* . A key element in calculating the appropriate royalty fee involves identifying subscribers of the cable system located outside the local service area of a primary transmitter. As seen above, this determination is predicated upon two sets of FCC regulations: the broadcast signal carriage rules in effect on April 15, 1976, and a station’s television market as currently defined by the FCC. In general, a broadcast station is considered distant vis-a-vis a particular cable system where subscribers served by that system are located outside that broadcast station’s specified 35 mile zone (a market definition concept arising under the FCC’s old rules), its Area of Dominant Influence (“ADI”) (under Arbitron’s defunct television market system), or Designated Market Area (“DMA”) (under Nielsen’s current television market system). However, there are other sets of rules and criteria, such as Grade B contour coverage and “significantly viewed” status, that also apply in certain situations when assessing the local or distant status of a station-even when subscribers are located outside its zone, ADI and DMA for copyright purposes. We note that the FCC has adopted a Table of Allocations for digital television stations, defining the frequency allocations for channels in individual communities, that is intended to mirror its Table of Allocations for analog television stations. The FCC’s policy goal was to ensure that a digital television station’s coverage area would replicate the analog television station’s coverage area so that no one would lose over-the-air broadcasting service once the digital transition period ends. Plainly, the coverage areas of digital television signals are in a state of flux at the present time because of the FCC’s various DTV service requirements and related exceptions and waivers. Some stations are operating on their pre-transition digital channel assignment and some are operating on their post-transition digital channel assignment. Some digital television stations are operating at full power and are replicating their analog service area and some are operating at less than full power. And, some stations will be permitted, once the transition is over, to extend their coverage areas a small degree farther than their current analog signal. These various permutations may have a significant effect on the Office’s SOA examination practices. *See Third Periodic Review of the Commission’s Rules and Policies Affecting the Conversion to Digital Television* , MB Docket No. 07-91, FCC 07-228, et. seq. (rel. Dec. 31, 2008). At the outset then, we must address the technical requirements the FCC has adopted for digital television stations. While these technical changes will not disrupt 35 mile zones, as defined by the Act, or local television markets for commercial television stations, as defined by Nielsen, they may have some bearing on the continuing validity of using analog Grade B contours in determining local service areas of digital signals. It is important to recognize that digital signal coverage is defined by “noise limited service contours,” not Grade B contours. This is especially critical for noncommercial television stations because their “local” status is currently determined by Grade B contours. 18 The conundrum here is that the new DTV contour parameters did not exist in 1976 (like Grade B contours) nor are they used by the FCC in Sections 76.55(e) and 76.59 to define television markets. As such, there is no statutory basis for us to incorporate the new contour into our rules for purpose of defining markets. Thus, we propose that the Office must either use 35 mile zones or Nielsen’s DMAs for purposes of examining SOAs where full power digital signals are reported. This approach is consistent with the operating definitions found in Section 111 of the Act and the Copyright Office’s rules and forms. 18 The Grade B contour may be used to determine the local status of network and independent stations, but only if the cable communities are located “outside all markets.” *See* 47 CFR 76.59 (1981). The Grade B contour may also be used to determine the “permitted” status of a commercial UHF station to avoid the 3.75% fee in Part 6 of the DSE schedule. *See* 47 CFR 76.59, 76.61, and 76.63 (1981). With regard to “significantly viewed” stations, we note that the FCC has stated that the significant viewing standard supplements other “local” market definitions by permitting stations that would otherwise be considered “distant,” for program exclusivity purposes, to be considered local based on viewing surveys directly demonstrating that over-the-air viewers have access to the signals in question. After taking the complexities of the DTV transition into account, the FCC believed that the public interest was best served by according the digital signal of a television broadcast station the same significantly viewed status accorded the analog signal. The FCC noted, however, that new DTV-only television stations must petition the Commission for significantly viewed status under the same requirements for analog stations in Section 76.54 of the Commission’s rules. 16 FCC Rcd at 2642. The FCC did not explicitly discuss whether all new multicast programming streams broadcast from a single transmitter would inherit the significantly viewed status of the analog station. Based upon the preceding, we propose that a digital simulcast television signal should have the same “significantly viewed” status assigned by the FCC to its analog counterpart. These types of determinations, we believe, are unaffected by the switch to digital television. As for new multicast streams from a station that had originally been accorded “significantly viewed” status, we will decline to consider them permitted for Section 111 purposes until the time that the FCC makes a determination on this matter. This policy is in accord with our overall finding that new multicast streams should be treated as new stations for cable copyright purposes. We seek comment on these proposals, noting that no amendments to current rules are needed under this approach. 2. Permitted or non-permitted signals and the 3.75% fee *Background* . Broadcast station signals retransmitted pursuant to the FCC’s 1976-era market quota rules are considered permitted stations and are not subject to a higher royalty rate. Under these rules, a cable system in a smaller television market (as defined by the FCC) is permitted to retransmit only one independent television station signal. A cable system located in the top 50 television market or second 50 market (as defined by the FCC), is permitted to carry two independent station signals. The former market quota rules did not apply to cable systems located “outside of all markets,” and these systems under Section 111 are currently permitted to retransmit an unlimited number of television station signals without incurring the 3.75% fee (although these systems still pay at least a minimum copyright fee or base rate fee for those signals). In the NOI, we asked how the Copyright Office could determine whether a distant digital broadcast signal is permitted or non-permitted for DSE purposes. 71 FR at 54950. Copyright Owners assert that no distinction should be made in the application of the existing rules based on broadcast format; rather, each signal and each stream of a multicast signal should be evaluated separately to determine if it would have been permitted under Commission rules in effect on June 24, 1981. They state, for example, that if a cable operator carries two different streams of a distant digital signal (neither of which contains any network programming) and only one distant independent station could have been carried by that system under the former FCC rules, one stream would be permitted and the other would not. Copyright Owner Comments at 4. NCTA criticizes this approach stating that most cable systems have reached their FCC market quota of permitted distant signals with distant analog signals. The result then, would be to deem non-permitted (and therefore subject to the 3.75% fee) all distant digital signals during the DTV transition in cases where analog signals already make up the quota of permitted signals. NCTA asserts that, under the Copyright Owners’ plan, royalty fees of 3.75% of gross receipts would attach to carriage of each separate digital stream. NCTA argues that this would be an “extreme and punitive” approach, not warranted by the language of the Act of the Copyright Office’s existing rules. NCTA Reply Comments at 3. *Discussion* . The retransmission of a duplicative distant digital television signal shall be considered “permitted” for Section 111 purposes. As explained above, the carriage of such signals does not require additional compensation under the statute. However, we propose that each unique multicast stream retransmitted by a cable operator above the FCC market quota limitations as referenced in (or applied pursuant to) Section 111 shall be treated as a separate “DSE” and subject to the 3.75% fee, assuming no other legitimate basis of permitted carriage applies. We seek comment on this approach. 3. Basis of carriage *Background* . There are several bases of permitted carriage under the current copyright scheme that are tied to the FCC’s former carriage requirements and the retransmission of which will not trigger the 3.75% fee. They include:

(1)specialty stations;

(2)grandfathered stations;

(3)commercial UHF stations placing a Grade B contour over a cable system;

(4)noncommercial educational stations;

(5)part time or substitute carriage; and

(6)a station carried pursuant to an individual waiver of FCC rules. If none of these permitted bases of carriage are applicable, then the cable system pays a relatively higher royalty fee for the retransmission of that station’s signal. In the NOI, we asked how the Copyright Office could determine the basis of carriage for a distant digital signal. 71 FR at 54950. Copyright Owners state that the rules already in place should be applied without reference to broadcast format. They argue that each signal and each stream of a multicast signal should be evaluated separately to determine the basis of carriage. Copyright Owner Comments at 5. *Discussion* . We agree with Copyright Owners that the basis of carriage for retransmitted digital television signals should generally be the same as those for analog television signals, but the circumstances dictate the outcome in some instances. With regard to the market quota rules, the most commonly used permitted basis of carriage, we reiterate that the most significant change resulting from the retransmission of digital signals will be the amount of royalties that may have to be paid by the cable operator. For example, if an operator decides to retransmit each of the five or six (possible) multicast programming streams offered by a single distant digital broadcast signal, and each stream is a separately calculated DSE, then it may instantly reach its market quota and would have to pay a 3.75% fee for each stream over the quota. We seek comment on this result. Next, we believe that the specialty station status of an existing analog signal may be claimed by a companion digital signal if it transmits the same programming. However, a multicast signal emanating from the same station and carrying different programming cannot take advantage of the analog signal’s specialty station status because it is “new” for DSE purposes. Thus, the owner or the licensee of the station that transmits a multicast stream would need to submit a separate affidavit to be placed on the specialty station list. *See* 72 FR 60029 (Oct. 23, 2007). We seek comment on this approach. Likewise, a new digital multicast stream transmitted by a television station whose analog signal has “grandfathered” status should not be able to claim the latter’s status because it was not in existence prior to March 31, 1972. The FCC originally adopted its grandfathering policy so that cable operators could avoid the difficulty of withdrawing signals to which the public has been accustomed. 19 This rationale is inapt in the case of new digital signals and streams because subscribers have not come to rely upon such signals. As such, an operator who carries such a distant digital signal or stream should have to pay the 3.75% fee if that signal is above the market quota (and no other permitted bases for carriage apply) for that particular system even though the licensee’s analog signal may have qualified for “grandfather status.“ Also, the multicast digital signal or stream, as well as new digital stations, should not be exempt from the syndicated exclusivity surcharge like true “grandfathered“ stations. We seek comment on this approach. 19 *See Cable Television Report and Order* , 36 FCC 2d 143, para. 107 (1972). As for commercial UHF stations placing a Grade B contour over a cable system, we encounter the same issues that arise in determining the appropriate market area using that coverage dynamic. In this case, we again find that the Grade B contour cannot be replaced by the noise limited service contour as the appropriate measurement to determine whether a commercial UHF station is “permitted“ for copyright purposes because the new predictive standard was not in existence at the time Section 111 was enacted. The practical effect of this determination is that a cable operator cannot rely upon any type of contour to determine whether a UHF signal is permitted for Section 111 purposes. We seek comment on this result. The transition to digital television likely will not disturb the permitted basis for carriage of noncommercial educational stations or implicate part time or substitute carriage rationale for permitted signals. Further, the Office’s current policy of treating stations with an FCC waiver as “permitted“ may be unaffected as well. For example, in 1972, the FCC granted a waiver (under its former carriage rules) permitting all present and future New Jersey television stations to be carried on all New Jersey cable systems. For cable copyright purposes, then, a New Jersey cable operator may retransmit all New Jersey televisions stations without incurring the 3.75% fee for carriage of signals above the market quota. *See* letter from Dorothy Schrader, U.S. Copyright Office to David Wittenstein, Dow Lohnes & Albertson, dated February 6, 1986. The FCC waiver, which was explicitly prospective, would apply to all digital television stations with their community of license in New Jersey, and by extension, all multicasts streamed from each of those stations. We recognize that this result runs contrary to our newly stated policy that operators should pay additional royalties for the retransmission of new digital multicast streams, but this is how Section 111 operates. This example highlights the friction between an antiquated licensing system and the rights of copyright owners. We seek comment on these interpretations. 4. DSE values *Background* . In the NOI, we asked what DSE values (for network, educational, independent) should be assigned to digital signals. 71 FR at 54950. Copyright owners state that DSE values should be based on the definition of station types found in Section 111(f) regardless of format. They add that where a digital signal includes multiple program streams, each stream’s DSE value should be based on its individual station type. Copyright Owner Comments at 5. *Discussion* . As stated earlier, under Section 111 of the Copyright Act, distant independent television stations are assigned a DSE value of 1.00 and network and educational television stations are assigned a value of .25. The transition to digital television does not generally affect these DSE values. Thus, retransmitted digital television signals should carry the same value as those for analog signals. This is of no concern for duplicative digital signals, however, this is an issue for multicast digital signals. There may be instances where a single station transmits separate multicast streams of independent and network programming ( *e.g* ., an Ion Media television stream and an ABC stream). In such a case, we propose that a cable operator should separately report the DSE value of each individual stream on its SOA, identify each stream as a network, independent, or noncommercial station, and pay accordingly. The proposed rules have been amended to reflect this approach. We seek comment on this proposal. 5. New digital stations *Background* . In the NOI, we asked how new digital television stations, without a pre-existing analog counterpart, should be treated for cable royalty purposes. 71 FR at 54950. In response to our inquiry, NCTA comments that if the new digital television station is carried on a distant basis, additional payment would be required since this newly added station would be considered a new “primary transmitter,“ just as if a new analog station were added to a cable system line-up on a distant basis. NCTA Comments at 4, n. 7. Copyright Owners state that all existing rules should be applied even if the digital signal never had an analog counterpart. Copyright Owner Comments at 6-7. On a separate, but related subject, Copyright Owners state that a new digital station could petition the FCC for significantly viewed status and therefore be considered a local station for cable copyright purposes. Copyright Owners Comments at 6. *Discussion* . We propose that the rules and regulations applicable to the retransmission of existing analog television stations under Section 111 should apply in the same manner to the retransmission of new digital-only television stations. However, as discussed above with regard to new stations and multicast streams, there are certain practices and rules that would not necessarily apply because of their status as new television stations. For example, a new digital station (without a prior analog counterpart) or a new multicast stream, cannot have grandfathered status because they did not exist prior to March 31, 1972, and the concerns about viewing expectations that motivated the FCC to grant grandfather status to certain stations under its former rules are inapplicable to new programming. Further, there can be no market determination based on Grade B contours because they have been rendered moot by the transition to DTV and a digital station’s coverage area is now determined by noise limited service contours. One last question that must be addressed is whether new digital stations “create“ television markets, as that concept has been defined by the FCC, and incorporated into the cable royalty scheme. 20 These “markets“ have been used to determine the local or distant status of analog commercial television station for cable copyright purposes. However, the FCC no longer assigns specified zones as it did when the old local and distant carriage rules were in effect. Thus, there is no regulatory basis upon which we can rely to state that new digital stations create their own markets. We seek comment on these proposals and other tentative conclusions outlined above. 20 In the analog context, when the FCC licensed a network or independent station in the 1970s, it assigned a circular 35 mile specified zone to each station and then determined the type of market it created. 6. Digital signal downconverted to analog *Background* . In the NOI, we asked how a cable operator should report carriage of a digital signal that has been downconverted to an analog signal at the cable system’s headend. 71 FR at 54950. This action is necessary so that those cable households without a digital television set are able to receive and view the programming carried by the station. NCTA states that a cable operator would be engaged in the secondary transmission of a primary transmission and that Section 111 would still be applicable. NCTA asserts that the statute does not depend on the technical format of the transmission. NCTA Comments at 4, n. 7. *Discussion* . Our current view is that the downconversion of a digital signal into an analog format is inconsequential to the royalty structure under Section 111. The technical format of the retransmission in the subscriber’s home has no bearing on the status of the signal for royalty purposes. As such, as long as the operator reports the digital station’s call letters and type (independent, network, or educational) on its SOA, there is no rationale for requiring a separate statement indicating the downconversion status of a distant digital signal or an obligation to pay additional royalties (unless it is a new multicast signal). We seek comment on this approach. E. Retransmission of Digital Audio Broadcast Signals *Background* . Section 111 permits cable systems to retransmit radio station signals in addition to television station signals. The Office had codified rules concerning the secondary retransmission of radio signals and determined how such signals should be identified on cable Statements of Account. *See* 37 CFR 201.17(e)(10). Terrestrial radio station licensees have been converting to a digital format over the last few years. Using in band on channel (“IBOC”) technology, radio stations have initiated a service known as digital audio broadcasting (“DAB”). DAB provides for enhanced sound fidelity and improved reception while giving radio stations the capability to multicast audio programming as well as offer new data services to the public. This technology allows broadcasters to use their current radio spectrum to transmit AM and FM analog signals simultaneously with new higher quality digital signals. There is no government mandated transition for radio station licensees as there is for television station licensees, but the FCC has encouraged radio stations to convert to a digital format. *See Digital Audio Broadcasting Systems and Their Impact on the Terrestrial Radio Broadcast Service* , 22 FCC Rcd 10344 (2007). 21 21 Industry reports forecast that there will be 30 million DAB listeners by 2012. *See Researcher Sees Growth for Satellite, but Even More for HD Radio* , Radio World Newsbytes, http://www.rwonline.com (Last accessed January 14, 2008). In the NOI, we sought comment on what changes in our rules and the SOAs would be necessary to accommodate the retransmission of digital audio signals by cable systems. We asked how cable systems should report the retransmission of digital audio multicast streams. We also asked whether cable subscribers would need specialized equipment or set top boxes to receive these digital radio signals, and if so, how this may affect a cable operator’s gross receipts calculations. 71 FR at 54951. *Comments* . NPR argues that digital television and digital radio stations are so similar that they should both be covered by Section 111. It asserts that both can and do transmit digital simulcasts and multicast digital signals and simulcast analog services and both can offer ancillary services, such as program-related textual material. NPR comments that the Copyright Office may generally follow the same approach as it does for television in revising its rules to accommodate the digital radio transition. NPR states that while the equipment to process individual digital radio signals is not yet available, the basic technology exists, and until such equipment is developed, retransmission on an all-band basis would permit the pass through of digital multicast signals. NPR Comments at 3-4. With regard to specific policy recommendations, NPR suggests that:

(1)cable systems should continue to state whether radio station signals are carried on an all-band retransmission basis or as separate and discrete signals;

(2)distinct digital radio signals should be treated as separate retransmissions under the Copyright Office’s regulations; and

(3)cable systems should include in their gross receipts any revenue associated with the retransmission of digital radio signals, including any equipment a subscriber must rent or purchase to receive such services. NPR concludes that for present purposes, “it is sufficient to clarify that retransmission of digital radio signals is covered by the Section 111 license and to confirm the applicability of the rules governing the reporting of such retransmissions.“ *Id* . at 4. CBC disagrees that DAB should be subject to the Section 111 license. It urges the Copyright Office to forego creating a new regulatory framework for DAB “until the service further evolves and is more widely available in the marketplace.“ CBC Comments at 4. NPR disagrees with CBC and states that DAB service is widely available across the United States with over 1500 stations broadcasting digital signals. It adds that since a given station’s digital service area is comparable to its analog service coverage area, the advent of DAB does not require a fundamentally new regulatory framework. According to NPR, it is sufficient and appropriate for the Copyright Office to require the reporting of all such retransmissions of analog and digital radio broadcast signals. *See* NPR Reply Comments at 3-4. *Discussion* . We find that DAB is a burgeoning new type of over-the-air radio service that warrants consideration here. DAB amounts to a change in format that appears to have no effect on its carriage under Section 111. Consequently, digital radio stations would be treated in the same manner as analog radio stations when retransmitted by cable operators in accordance with existing Office regulations. A cable operator should report the retransmission of digital audio signals in Space H of the SOA and the fees associated with these signals in Space K of the SOA. We seek comment on this approach. We are not instituting a new regulatory framework for the carriage of digital radio signals here. Thus, any concerns CBC may have had about DAB and Section 111 will likely not materialize. However, we stand ready to entertain any novel questions about the application of Section 111 to digital radio signals in a future proceeding. F. Marketing of Digital Broadcast Signals and the Cable Statutory License *Background* . The Copyright Office’s regulations require reporting of gross receipts, as defined in Section 201.17(b), for any tier of service that must be purchased in order to access the tier which contains the broadcast signals. *Compulsory License for Cable Systems: Reporting of Gross Receipts* , 53 FR. 2493, 2495 (Jan. 28, 1988); *see also* 37 CFR 201.17(b)(1); Form SA 1-2, General Instructions, p. v; Form SA 3, General Instructions, p. vi. In their Petition for Rulemaking, Copyright Owners stated that cable operators often carry digital broadcast signals on a digital service tier, but for subscribers to access such signals, they must purchase other tiers of service. Accordingly, Copyright Owners requested that the Copyright Office clarify that a cable operator must include in its gross receipts any revenues from the tiers of service consumers must purchase in order to receive digital broadcast signals - notwithstanding that the operator may market its offering of such signals as “free.” Copyright Owners also recommended that the Copyright Office include in Space E of the cable SOAs a specific reference to “Digital and HDTV Tiers,“ and explain that such reference includes all service tiers that a consumer must purchase in order to receive digital broadcast signals. We sought comment on these proposals in the NOI and also asked interested parties to submit other examples of cable industry marketing practices that require subscribers to purchase tiers, services, or gateways, in order to access digital broadcast signals. 71 FR at 54951. *Comments* . NCTA states that cable operators offer digital broadcast signals on their (lowest priced) basic tier of service and so the issue of paying royalties on the sale of other upper tiers is irrelevant in this instance. NCTA Comments at 7. It states that this signal placement practice follows Section 623(b)(7) of the Communications Act, which requires cable operators to include on the basic service tier “any signal of any television broadcast station that is provided by the cable operator to any subscriber [other than a superstation signal].“ NCTA Comments at 8, citing 47 U.S.C. 543(b)(7). NCTA further comments that in its 2001 *Digital Must Carry Order* , 16 FCC Rcd 2598 (2001), the FCC stated that, “[i]n the context of the new digital carriage requirements, it is consistent with the statutory language to require that a broadcaster’s digital signal must be available on a basic tier such that all broadcast signals are available to all cable subscribers at the lowest priced tier of service, as Congress envisioned.” *See id* . NCTA asserts that cable subscribers with a digital television set capable of receiving digital broadcast signals, who purchase only the basic service tier, will receive both the analog and digital versions of broadcast signals, along with all other services on the basic tier. NCTA asserts that these customers do not need to purchase an intermediate “expanded basic“ analog tier nor are they required to buy a digital tier to obtain those digital signals. NCTA also states that the Copyright Owners’ assumptions about cable marketing practices for digital broadcast signals are not supported by their selected references to certain material, which in any instance, NCTA believes have been taken out of context. NCTA Reply Comments at 4. Copyright Owners argue that cable operators are not required to place digital signals in the basic tier of service, despite NCTA’s protestations to the contrary. They specifically note that “for any system that faces `effective competition’ under the four statutory tests in the Communications Act, and is deregulated pursuant to a Commission order, the cable operator is free to place a broadcaster’s digital signal on upper tiers of service or on a separate digital services tier.“ *See* Copyright Owners Reply Comments at 2-3. Copyright Owners further state that Section 623(b)(7) of the Communications Act does not restrict the carriage of superstations to the basic service tier. *Id.* at 4, citing 47 U.S.C. 543(b)(7)(A)(iii) (Section does not apply to any `signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station’). Accordingly, they argue that nothing in the law prevents cable operators from placing such satellite-delivered digital signals on any tier they choose. *See id* ., citing 47 U.S.C. 325(b)(2)(D) (exempting the carriage of certain superstations from the Communications Act’s retransmission consent requirement).” *See id* . According to NCTA, those operators who provide digital broadcast signals as an extension of the basic tier are “wholly justified under long-standing Copyright Office precedent“ in reporting only revenues from that tier in determining gross receipts for copyright purposes. NCTA Comments at 8-9. NCTA states that the Copyright Office should clarify that cable operators need not incur an additional payment for carriage of distant digital signals where they already pay royalties on account of carriage of that station’s analog signal. *See id* . at 13. NCTA adds that if the Copyright Office adopts rules that impose additional royalty fees based on how digital signals are marketed, it must avoid giving the rules a retroactive effect. NCTA Reply Comments at 6. Copyright Owners agree that a cable system need include only basic service revenues in its “gross receipts“ calculation if it is true that analog and digital signals are offered on the lowest-priced tier without additional charges. Copyright Owners Reply Comments at 7. They note, however, that many cable operators make cable subscribers buy through other tiers of services before they can receive digital broadcast signals and that such charges must be included in gross receipts calculation. *See id* . at 7-8. Further, Copyright Owners assert that NCTA has not provided any examples of cable operators that offer digital broadcast signals without imposing additional charges. Copyright Owners Reply Comments at 5. Copyright Owners urge the Copyright Office to amend the cable SOAs so that cable operators are required to:

(1)identify clearly each of the fees that its subscribers must pay to receive analog and digital broadcast television signals;

(2)certify that each of those fees was included in its calculation of gross receipts; and

(3)state where the cable operator must inform subscribers that these are the only fees necessary to receive analog and digital broadcast signals. Copyright Owners Comments at 8. *Discussion* . The Copyright Office’s regulations require reporting of the gross receipts, as defined in Section 201.17(b), for any tier of service that must be purchased in order to access the tier which contains the broadcast signals. The Office’s gross receipts definition is not contingent upon the type of station that is retransmitted. We have never wavered from this policy and it has been understood by both cable operators and copyright owners for years. We believe that our existing policies need not be changed as a result of the digital television transition. A tier is a tier regardless of the type of broadcast signals carried on it. As such, a cable operator must include in its gross receipts calculation all sales of services or tiers that must be purchased in order for subscribers to access any type of digital broadcast signals, whether they are duplicative digital broadcast signals or unique multicast signals. A cable operator should clearly identify on its SOA each of the fees that its subscribers must pay to receive digital television signals. To clarify our interpretation, we will use Comcast’s West Palm Beach, Florida system as an example. Here, the operator charges $15.95 for the Basic Service Tier, $50.95 for the expanded service tier, and an additional $6.95 for the digital tier of service that includes high definition television signals. A subscriber who wants to receive digital television programming would pay a fee of $57.90 (expanded basic tier + digital broadcast tier, excluding franchise fees and any equipment rentals). *See* http://www.comcast.com/shop/buyflow/default.ashx (Input zip code 33407 when prompted). In this example, it appears that the digital television signals are not available as part of the lowest priced tier of service. Thus, Comcast should be reporting, as part of its gross receipts, all monies collected for the sale of the expanded service tier, the digital broadcast tier, as well as rental fees for equipment needed to access such tiers of service. 22 22 Comcast recently adopted a marketing policy for its Michigan customers who will now be able to receive high definition channels without having to pay through a digital service tier. In the past, high definition service only was available to customers who purchased the more extensive and expensive “preferred” cable service. *See* Sofia Kosmetatos, *Comcast Puts HD on Basic Access* , Detroit News, November 20, 2007. This example, and the one above, appear to support Copyright Owners’ argument concerning the purchase of additional tiers to reach broadcast programming. *But see* Philip Swann, Time Warner: 100 HD Channels in 2008, http://www.TVPredictions.com (Last accessed Apr. 3, 2008) (TWC’s digital cable customers in Brooklyn, Queens, and Staten Island, soon will be able to receive 100 HD channels, including high definition signals from New York television stations.) It appears from this announcement that a subscriber would need to purchase a digital tier, in addition to the basic service tier, to access broadcast signals in HD. Given the disparate descriptions of communications law precedent in the comments, we believe that it is useful to provide an overview of FCC precedent here. Specifically, Section 623(b)(7)(A) of the Communications Act requires that the basic tier on a rate regulated system include all signals carried to fulfill the must carry requirements of Sections 614 and 615 and “any signal of any television broadcast station that is provided by the cable operator to any subscriber...“ In the context of the analog broadcast signal carriage requirements, it has been the FCC’s view that the Communications Act contemplates there be one basic service tier. The FCC believed that in the context of its digital broadcast signal carriage requirements, it was consistent with the statutory language to require that a broadcaster’s digital signal must be available on a basic tier such that all broadcast signals are available to all cable subscribers at the lowest priced tier of service, as Congress envisioned. The FCC stated that the basic service tier, including any broadcast signals carried, will continue to be under the jurisdiction of the local franchising authority, and as such, will be rate regulated if the local franchising authority has been certified under Section 623 of the Act. The FCC noted, however, that if a cable system faces effective competition under one of the four statutory tests, and is deregulated pursuant to a Commission order, the cable operator is free to place a broadcaster’s digital signal on upper tiers of service or on a separate digital service tier. The FCC stated that its finding was based upon the belief that Section 623(b)(7) of the Communications Act is one of those rate regulation requirements that sunsets once competition is present in a given franchise area. 16 FCC Rcd at 2643. 23 23 The FCC sought further comment on tiering issues in a 2001 Further Notice of Proposed Rulemaking accompanying the Report and Order. In so doing, it stated its belief that it would facilitate the digital transition to permit cable operators that are carrying a broadcast station’s analog signal on the basic tier to carry that broadcast station’s digital signal on a separate digital tier pursuant to retransmission consent. The FCC believed that such an approach, which was necessarily limited to the duration of the transition in a given market, was consistent with the flexibility given the Commission by Section 614(b)(4)(B) to prescribe carriage rules for the DTV transition. The FCC has not finally decided this matter, even though it was proposed over seven years ago. *Id* . at 2656. Copyright Owners recommend that the Office revise the SOAs and require cable operators to specifically certify that each of the subscriber fees associated with the purchase of tiers with digital signals is included in its calculation of gross receipts. They also suggest that a cable operator should be required to inform its subscribers that these are the fees necessary to receive analog and digital broadcast signals. In this instance, Copyright Owners have not demonstrated that their suggested revisions advance a relevant public policy goal associated with the proper administration of the cable statutory license. As such, we find that these proposed changes are unnecessary at this time and we will not further consider such recommendations. G. Equipment Issues Under Section 111 1. Reception Devices *Background on Set Top Boxes* . Under the Copyright Office’s rules, any fees charged for converters necessary to receive broadcast signals must be included in the cable system’s gross receipts used to calculate its Section 111 royalty payment. (Emphasis added). 37 CFR 201.17(b)(1); Form SA 1-2, General Instructions, p. v; Form SA 3, General Instructions, p. vi. As the Copyright Office stated nearly thirty years ago: “[A] subscriber must have a converter to receive, in usable form, the signals of all of the television stations that constitute the cable system’s `basic service of providing secondary transmissions of primary broadcast transmitters.’ Subscriber fees associated with converters, therefore, are clearly amounts paid for the system’s secondary transmission service and are included in that system’s ‘gross receipts.’” *Compulsory License for Cable Systems* , 43 FR 27827-27828 (June 27, 1978). Currently, most cable subscribers are unable to receive digital (including broadcast) signals offered by their cable operator unless they obtain a special converter, *i.e.* digital set top box, regardless of whether those signals are available as part of the lowest-priced basic service. In their Petition for Rulemaking, Copyright Owners have asserted that some cable operators may not be including digital set top box fees in their calculation of gross receipts. Copyright Owners have not suggested that all cable operators are failing to include digital converter fees in their gross receipts. They noted, however, that the fact that some cable systems are including such fees in their gross receipts, while others are apparently not doing so, underscores the need for the Copyright Office to address this matter to ensure consistency in the application of the relevant rules. Copyright Owners, therefore, requested that the Copyright Office clarify that, in accordance with Section 201.17(b), a cable operator must include in its gross receipts any fees charged subscribers for digital set top boxes used to receive digital broadcast signals, notwithstanding that the operator may market its offering of such signals as “free.” Copyright Owners have also recommended that the Copyright Office include in Space E of the cable SOA specific reference to “Digital and HDTV Converters” and explain that this line item refers to converters used to receive HDTV or other digital broadcast signals. We sought comment on these proposed changes in the NOI. 71 FR at 54952. *Comments on Set Top Boxes* . NCTA states that when the converter box rule was first adopted by the Copyright Office in the late 1970s, many television sets were unable to receive UHF broadcast stations carried on cable without a set top box, a device that they could only obtain from their cable operator. NCTA Comments at 9. NCTA asserts that recent developments in communications law, specifically the requirement regarding the commercial availability of navigation devices under Section 629 of the Communications Act “has ensured that cable operators are no longer the only source of equipment to permit the reception of broadcast signals.” It argues that cable operator-provided set-top boxes can no longer be considered “necessary” to receive digital broadcast signals and should not be included in gross receipt revenues. NCTA additionally argues that cable subscribers do not need cable operator-leased set top boxes to receive digital broadcast signals. To support its position, it asserts that cable operators are generally delivering digital broadcast signals “in the clear” (not scrambled) and any basic service tier subscriber (with a DTV receiver) is able to receive and view them without a box or a CableCard ( *see* explanation below). NCTA Comments at 10. ACA agrees and states that to receive digital broadcast signals on cable, a customer need only purchase a digital “cable-ready” television. ACA Comments at 3. NCTA states that when a cable subscriber purchases either a digital “cable ready” receiver or a Tivo Series 3 digital video recorder at retail, copyright owners receive no royalty payment. NCTA comments that in both these cases, the customer-supplied equipment enables the viewing of digital television signals in the same manner as a digital set top box rented from the cable operator. For these reasons, NCTA argues, it can no longer be said that it is necessary for any subscriber to lease a device from their local operator to access digital signals retransmitted by cable. NCTA concludes that no policy reason justifies charging cable subscribers in the form of increased royalty fees when those customers choose to lease a set top box from their cable operator instead of pursuing other marketplace options. NCTA Comments at 12. NCTA states that when cable systems first began retransmitting broadcast signals under the cable statutory license, broadcast signals were all that operators offered; under these circumstances, a policy that required operators to include set top box revenues may have been justified. NCTA asserts, however, that digital set top boxes serve entirely different functions that make this policy no longer valid; cable subscribers are obtaining set top boxes for a broad variety of reasons that have nothing to do with the system’s “secondary transmission service.” NCTA states that digital set top boxes enable subscribers to buy services, like digital video recording or video-on-demand and make possible viewing of scrambled non-broadcasting digital programming. NCTA asserts that these are services that a subscriber could not access without a set top box. NCTA concludes that copyright owners are simply trying to bootstrap box rental revenues into the copyright royalty pool. According to NCTA, these revenues have no relationship to the statutory license or to broadcast signal carriage, and operators should be able to exclude them from the gross receipt calculation. *See id* . at 12-13. In response, Copyright Owners assert that the Copyright Office has already ruled that analog converter fees must be included in the gross receipts calculation and that the applicability of this provision to such converters has not been challenged for 30 years. Copyright Owners assert that cable-ready television sets were widely available in the pre-digital era and subscribers nonetheless chose to rent converters in order to eliminate ghosting problems or be able to receive additional non-broadcast channels. They add that the Copyright Office’s ruling required cable operators to report converter revenues as part of their gross receipts for royalty purposes whether or not subscriber rentals were driven by necessity. *See* Copyright Owners Reply Comments at 9-10. Copyright Owners also argue that NCTA’s proposal would lead to absurd results. They state, for example, that NCTA’s logic suggests that none of the subscriber fees charged to receive broadcast signals should be included in gross receipts because it is not necessary for a subscriber to buy service from a cable operator to receive broadcast signals. They argue that cable subscribers typically can obtain broadcast signals off-the-air, but nothing in the Copyright Act or Copyright Office rules would permit cable operators to omit fees they collect from subscribers from their gross receipts under a necessity rationale. *Id.* at 10. Copyright Owners admit that if a cable subscriber purchases a set top box from a third party, they receive no portion of that purchase price. They assert, however, that this situation is no different from the situation in 1976 (or now) where copyright owners receive no portion of the purchase price of outdoor antennas when consumers choose that option to receive broadcast signals. They argue that the availability of alternative means for obtaining broadcast signals does not free cable operators from the obligation to include the cost of converters in their gross receipts. *Id.* at 11. *Background on CableCards* . Under the Copyright Office’s rules, gross receipts for the retransmission of broadcast signals include the full amount of service fees for any and all services or tiers of service which include one or more secondary transmissions of television or radio broadcast signals, for additional set fees, and for converter fees. 37 CFR 201.17(b). Section 624A of the Communications Act, 47 U.S.C. 544a, governs the compatibility between cable systems and navigation devices ( *e.g* ., cable set-top boxes, digital video recorders, and television receivers with navigation capabilities) manufactured by consumer electronics manufacturers not affiliated with cable operators. In connection with the digital television transition, the cable industry and the consumer electronics industry have engaged in ongoing inter-industry discussions seeking to establish a cable “plug and play” standard. Cable subscribers are now able to directly attach their DTV receivers to cable systems and receive cable television service without the need for a digital set top box. To receive cable service, consumers would only need to use a point-of-deployment module (“POD”), now marketed as “CableCard,” that would fit into a slot built into the television set. The POD acts as a key to unlock encrypted programming. 24 24 According to recent reports, the nation’s ten largest cable operators had supplied their customers with at least 300,000 CableCards by early December 2007. *See* Todd Spangler, *Operators Top 2.2M CableCard Set-Tops* , Multichannel News, January 2, 2008. In the NOI, we sought comment on whether cable subscribers have been required to purchase CableCards in order to access digital broadcast television signals. If so, we asked whether the Copyright Office’s definition of gross receipts should be amended to include subscriber revenue generated through the lease of CableCards. 71 FR at 54952. *Comments on CableCards* . Copyright Owners state that many cable operators appear to make CableCards available to subscribers for a monthly rental fee, but they are not aware of how many customers are using them. Copyright Owners state that if cable subscribers choose to rent CableCards from cable systems in order to access digital broadcast signals, those fees should be reported in Section E and included in gross receipts calculations. Copyright Owner Comments at 8-9. NCTA states that because digital broadcast signals are “in the clear,” a subscriber does not need to obtain a CableCard from their cable operator in order to view them. NCTA further states that subscribers can simply “plug and play” a “digital cable ready” set and watch digital and analog broadcast signals without incurring any additional equipment charges. NCTA Comments at 11. *Discussion* . Under the Copyright Office’s rules, any fees charged for converters necessary to receive broadcast signals must be included in the cable system’s gross receipts used to calculate its Section 111 royalty payment. (Emphasis added). 37 CFR 201.17(b)(1). The Copyright Office has already ruled that analog converter fees must be included in the gross receipts calculation and that the applicability of this provision to such converters has remained in place for 30 years, even though they may not be deemed “necessary” in certain cases. 25 Further, we agree with Copyright Owners that the availability of alternative means for obtaining broadcast signals does not free cable operators from including the cost of converters in their gross receipts. Therefore, a cable operator’s digital set top box revenues, or monies generated by the sale or rent of CableCards used to access digital broadcast signals, must be included in gross receipts and royalties must be paid based upon the inclusion of these items. 25 We note that in 1988, for example, cable counsel asked whether revenues from the rental of converters need not be included in the gross receipts calculation where the cable system’s configuration allows for the secondary transmissions of broadcast signals without the use of such equipment. *See* letter from Sol Schildhause, Farrow, Schildhause & Wilson, to Dorothy Schrader, General Counsel, Copyright Office, dated February 23, 1988. In response, Schrader wrote that “Even though in your case the converters are optional and perhaps unnecessary, if the converters are in fact used for secondary transmissions, the revenue from the rental or sale must be reported as gross receipts for purposes of computing the cable compulsory license royalties.” *See* letter from Dorothy Schrader, General Counsel, Copyright Office, to Sol Schildhause, Farrow, Schildhause & Wilson, dated April 8, 1988. 2. Second television set fees and in-home digital networks *Background on second set fees* . Under the Copyright Office’s rules, cable operator fees for service to second television sets are included in a cable system’s gross receipts for the purposes of Section 111. 37 CFR 201.17(b)(1); Form SA 1-2, General Instructions, p. v; Form SA 3, General Instructions, p. vi; *see also Compulsory License for Cable Systems* , 43 FR 958, 959 (Jan. 5, 1978) (“The additional set fee is, we believe, clearly a payment for basic secondary transmission service . . .”). In their Petition for Rulemaking, Copyright Owners stated that some cable systems charge additional fees for access to digital broadcast signals to a second television set in the household. Copyright Owners have questioned whether cable operators are including fees for service to additional sets that receive HDTV and other digital broadcast signals within their calculation of gross receipts. Copyright Owners have asked the Copyright Office to clarify that, in accordance with Section 201.17(b) of the rules, fees for service to additional digital television sets or “HDTV Terminals” must be included in a cable system’s gross receipts. Copyright Owners have also recommended that the Copyright Office include in Space E of the cable SOA specific reference to “Digital and HDTV Additional Set Fees” and explain that such a line item refers to fees charged for service to additional television sets receiving HDTV or other digital broadcast signals. We sought comment on the recommendations proposed by the Copyright Owners in the NOI. 71 FR 54952. *Background on in-home digital networks* . In the NOI, we noted that some cable operators offer subscribers in-home digital networks where one digital set top box provides digital signals to all sets in the household. We sought comment on whether the fees associated with such a service, if any, should be included in the operator’s gross receipts calculation. *Id.* at 54953. *Comments on in-home digital networks* . Copyright Owners assert that the existing principle that requires cable operators to report subscriber fees for converters used to receive retransmitted broadcast signals in Section E of their SOAs, and to include the fees in gross receipts calculations, should apply to other rented equipment required to receive retransmissions of digital (or analog) broadcast transmissions. If cable operators lease digital set top boxes that provide digital broadcast signals to all sets in a household, the rental fees should be reported in Section E and included in gross receipts. Copyright Owners Comments at 9. *Discussion* . Under the Copyright Office’s rules, cable operator fees for service to second television sets are included in a cable system’s gross receipts for the purposes of Section 111. 37 CFR 201.17(b)(1). The transition to digital television does not disturb this policy. A television set is a television set regardless of the transmission technology. We note, however, the cable industry has now developed new ways of delivering cable service inside and throughout the home with new types of networks and connections. Nevertheless, the current rule is adequate to accommodate changes in the use of technology. A cable operator must report, in its gross receipts calculation, any revenue generated from the connection of cable service to additional digital television sets, through traditional means, or by new means, such as in-home digital networks in a household. This policy generally carries forward determinations made by the Copyright Office in the analog television context over thirty years ago. *See, generally, Compulsory License for Cable Systems* , 43 FR 958, 959 (Jan. 5, 1978). III. Internet Retransmission of Distant Broadcast Signals *Comments* . CBC has urged the Copyright Office to adopt a policy stating that “the retransmission of broadcasters’ local signals over the Internet (whether for free or for payment) and other new technologies is exempt from copyright liability, so long as the copyright protected material is only accessible to viewers within the station’s local market (as defined by Nielsen’s Designated Market Area).” CBC believes that providers of Internet video and wireless technologies, similar to cable and satellite carriers under the statutory licenses, should not be subject to copyright royalties for retransmitting local broadcasts to parties who already have the option to receive the programming free over-the-air. *See* CBC Comments at 4. 26 26 After filing its comments, CBC requested that its comments be withdrawn from the public record in this proceeding. We decline this request because other parties have already joined issue with the matters raised by CBC. Copyright Owners state that the retransmission of copyrighted broadcast programming over the Internet constitutes a public performance within the meaning of Section 106(4) of the Act and may also implicate copyright owners’ exclusive reproduction rights under Section 106(1) of the Act. Copyright Owners argue that unless a statutory exemption or statutory license is available to the entity that seeks to retransmit broadcast programming over the Internet, that entity must obtain a privately negotiated license from the affected copyright owners. They further argue that nothing in the Copyright Act provides a general exemption for the public performance of third parties’ copyrighted works on the Internet. They add that neither Section 111 nor any other statutory provision affords any statutory licensee the right to retransmit television programming over the Internet. As such, Copyright Owners urge the Copyright Office to reject CBC’s requested “clarification.” Copyright Owners Reply Comments at 26-27. *Discussion* . This is the wrong forum for discussing the Internet retransmission of digital broadcast signals. This matter was not raised by the Copyright Owners in their Petition nor was it a subject addressed in the NOI. In any event, many parties have discussed this matter at length in the Copyright Office’s pending Section 109 proceeding. *See Section 109 Report to Congress* , Notice of Inquiry, 72 FR 19039 (Apr. 16, 2007) and comments filed thereunder. Internet retransmission of television broadcast signals will be a subject addressed in the Section 109 Report due to Congress in June 2008. IV. Conclusion We hereby seek comment from the public on the proposals identified herein associated with the retransmission of digital broadcast signals by cable systems under Section 111 of the Copyright Act. Regulatory Flexibility Act Statement Although the Copyright Office, as a department of the Library of Congress and part of the Legislative Branch, is not an “agency” subject to the Regulatory Flexibility Act, 5 U.S.C. 601-612, the Register of Copyrights has considered the effect of the proposed amendments on small businesses. The Register has determined that the proposed amendments would not have a significant economic impact on a substantial number of small businesses because the NPRM clarifies the application of existing law to changes in the cable industry. In any event, interested parties may file comments demonstrating that such changes could result in substantive burdens to smaller businesses. List of Subjects in 37 CFR Part 201 Copyright. Proposed Regulation For the reasons set forth in the preamble, the Copyright Office proposes to amend part 201 of title 37 of the Code of Federal Regulations as follows: PART 201-GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: Authority: 17 U.S.C. 702. 2. Section 201.17 is amended as follows: a. By revising the first sentence of paragraph (b)(1); b. By adding “analog or digital” after “primary television transmitters whose” in paragraph (e)(9) introductory text; and c. By revising paragraphs (e)(9)(i) and (vi). The revisions and additions to § 201.17 read as follows: § 201.17 Statements of Account covering compulsory licenses for secondary transmissions by cable systems.

(b)* * *(1) Gross receipts for the “basic service of providing secondary transmissions of primary broadcast transmitters” include the full amount of monthly (or other periodic) service fees for any and all services or tiers which include one or more secondary transmissions of television or radio broadcast signals, for additional set fees, and for converter fees, including any service fees, converter fees, CableCard fees, additional set fees, whole home network fees, and any related fees that subscribers must pay to receive digital broadcast signals. * * *

(e)* * *

(9)* * *

(i)The station call sign of the primary transmitter, including the designation “TV” for analog signals and “DT” (followed by the subchannel number) for digital signals.

(iv)A designation as to whether that primary transmitter is a “network station,” an “independent station,” or a “noncommercial educational station.” In the case of stations engaged in digital multicasting, that designation shall be made for each digital stream that the cable system carried. Dated: May 21, 2008. Marybeth Peters, Register of Copyrights, U.S. Copyright Office. [FR Doc. E8-11855 Filed 5-30-08; 8:45 am] BILLING CODE 1410-33-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2007-1132; FRL-8573-4] Approval and Promulgation of Air Quality Implementation Plans; Minnesota; Interstate Transport of Pollution AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a request submitted by the Minnesota Pollution Control Agency

(MPCA)on October 23, 2007, to revise the Minnesota State Implementation Plan (SIP). The submission would address the “good neighbor” provisions of the Clean Air Act (CAA). These provisions require each state to submit a SIP that prohibits emissions that adversely affect another state's air quality through interstate transport. MPCA has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to nonattainment of the National Ambient Air Quality Standards (NAAQS) in another state, interference with maintenance of the NAAQS in another state, interference with plans in another state to prevent significant deterioration of air quality, and interference with plans in another state to protect visibility. In the final rules section of this **Federal Register** , EPA is approving the SIP revision as a direct final rule without prior proposal, because EPA views this as a noncontroversial revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If we do not receive any adverse comments in response to these direct final and proposed rules, we do not contemplate taking any further action in relation to this proposed rule. If EPA receives adverse comments, we will withdraw the direct final rule and will respond to all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received on or before July 2, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-1132 by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: aburano.douglas@epa.gov.* • *Fax:*

(312)886-5824. • *Mail:* Douglas Aburano, Acting Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • *Hand Delivery:* Douglas Aburano, Acting Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Charles Hatten, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-6031, *hatten.charles@epa.gov.* SUPPLEMENTARY INFORMATION: In the Final Rules section of this **Federal Register** , EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. 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. For additional information, see the direct final rule which is located in the Rules section of this **Federal Register** . Dated: May 21, 2008. Walter W. Kovalick Jr, Acting Regional Administrator, Region 5. [FR Doc. E8-12223 Filed 5-30-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2006-0699; FRL-8568-9] RIN 2060-AO90 Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry; Standards of Performance for Equipment Leaks of VOC in Petroleum Refineries AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule; stay. SUMMARY: EPA is proposing to extend the stay of certain provisions of the standards of performance for equipment leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry (SOCMI) and Petroleum Refineries. In the “Rules and Regulations” section of this **Federal Register** we are extending the stay as a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule. DATES: Written comments must be received by July 2, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0699, by mail to Air and Radiation Docket (2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this **Federal Register** . We request that you also send a separate copy of each comment to the contact persons listed below (see FOR FURTHER INFORMATION CONTACT ). FOR FURTHER INFORMATION CONTACT: Ms. Karen Rackley, Coatings and Chemicals Group, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (E143-01), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number:

(919)541-0634; fax number: 919-541-0246; e-mail address: *rackley.karen@epa.gov.* SUPPLEMENTARY INFORMATION: I. Why Is EPA Issuing This Proposed Rule? This document proposes to take action on the standards of performance for equipment leaks of VOC in the SOCMI and Petroleum Refineries. We have published a direct final rule extending the stay of the provisions under reconsideration and the stay of the clarification of the definition of process unit in the “Rules and Regulations” section of this **Federal Register** because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document. II. Does This Action Apply to Me? Categories and entities potentially regulated by this action are synthetic organic chemicals manufacturers and petroleum refineries. The New Source Performance Standards

(NSPS)for equipment leaks of VOC in SOCMI and petroleum refineries affect the following categories of sources: Category NAICS Code 1 Examples of potentially regulated entities Industry 324110 Petroleum refiners. Primarily 325110, 325192, 325193, and 325199 Synthetic organic chemical manufacturing industry (SOCMI) units, e.g., producers of benzene, toluene, or any other chemical listed in 40 CFR 60.489. 1 North American Industrial Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the final amendments and new standards for equipment leaks of VOC in SOCMI and petroleum refineries. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR 60.480, 60.590, 60.480a, and 60.590a. If you have any questions regarding the applicability of the NSPS to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. III. Statutory and Executive Orders For a complete discussion of all of the administrative requirements applicable to this action, see the direct final rule in the “Rules and Regulations” section of this **Federal Register** . List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: May 15, 2008. Stephen L. Johnson, Administrator. For the reasons cited in the preamble, title 40, chapter I, part 60 of the Code of Federal Regulations is amended as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401, et seq. Subpart VV—[Amended] 2. Section 60.480 is amended by adding paragraph

(f)to read as follows: § 60.480 Applicability and designation of affected facility.

(f)*Stay of standards.* Owners or operators are not required to comply with the definition of “process unit” in § 60.481 and the requirements in § 60.482-1(g) of this subpart until the EPA takes final action to require compliance and publishes a document in the **Federal Register** . While the definition of “process unit” is stayed, owners or operators should use the following definition: *Process unit* means components assembled to produce, as intermediate or final products, one or more of the chemicals listed in § 60.489 of this part. A process unit can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the product. § 60.481 [Amended] 3. In § 60.481, the definition for “process unit” is stayed from August 1, 2008 until further notice. § 60.482-1 [Amended] 4. In § 60.482-1, paragraph

(g)is stayed from August 1, 2008 until further notice. Subpart VVa—[Amended] 5. Section 60.480a is amended by adding paragraph

(f)to read as follows: § 60.480a Applicability and designation of affected facility.

(f)*Stay of standards.*

(2)Owners or operators are not required to comply with the requirements in this paragraph until EPA takes final action to require compliance and publishes a document in the **Federal Register** .

(ii)The method of allocation of shared storage vessels in § 60.482-1a(g) of this subpart.

(e)to read as follows: § 60.590 Applicability and designation of affected facility.

(e)to read as follows: § 60.590a Applicability and designation of affected facility.

(e)*Stay of standards.* Owners or operators are not required to comply with the definition of “process unit” in § 60.590 of this subpart until the EPA takes final action to require compliance and publishes a document in the **Federal Register** . While the definition of “process unit” is stayed, owners or operators should use the following definition: *Process unit* means components assembled to produce intermediate or final products from petroleum, unfinished petroleum derivatives, or other intermediates; a process unit can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the product. § 60.591a [Amended] 12. In § 60.591a, the definition of “process unit” is stayed from August 1, 2008 until further notice. [FR Doc. E8-11384 Filed 5-30-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES 42 CFR Part 5 and 51c RIN 0906-AA44 Designation of Medically Underserved Populations and Health Professional Shortage Areas AGENCY: Department of Health and Human Services (HHS). ACTION: Notice of proposed rulemaking; extension of public comment period. SUMMARY: On April 21, 2008, HHS published a 30-day extension to the public comment period and provided clarification on the notice of proposed rulemaking, “Designation of Medically Underserved Populations and Health Professional Shortage Areas” (73 FR 21300). HHS and the Health Resources and Services Administration

(HRSA)have received requests for a further extension to the comment period. In consideration of these requests, HHS is extending the comment period an additional 30 days, with a new closing date of June 30, 2008. DATES: Written comments on this proposed rule must be submitted on or before June 30, 2008. Please refer to SUPPLEMENTARY INFORMATION for additional information. FOR FURTHER INFORMATION CONTACT: Andy Jordan, 301-594-0197. SUPPLEMENTARY INFORMATION: During the public comment period, HRSA has encouraged State Primary Care Offices

(PCOs)to apply the proposed methodology using their own State and local data to see how well it works in identifying areas in need in their States. HRSA has provided assistance, tools, and data to support States in their efforts and will continue to do so. In order to facilitate a better understanding of the proposed rule, HRSA provided PCOs with a calculator that applies the formulas proposed in the rule to determine designation, with data files, as well as with technical assistance in using the calculator. HRSA has also provided the names of PCOs who, with their expertise with different data sources, may be able to offer some technical assistance to their colleagues. Dated: May 29, 2008. Elizabeth M. Duke, Administrator. [FR Doc. 08-1314 Filed 5-29-08; 2:55 pm]

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