Unknown. Final rule
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--- schema: federal-register doc_type: fedreg source_file: FR-2008-07-07.xml --- 73 130 Monday, July 7, 2008 Contents Agricultural Agricultural Marketing Service RULES Raisins Produced from Grapes Grown in California: Final Free and Reserve Percentages for 2007-08 Crop, 38307-38311 E8-15293 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Food and Nutrition Service See Grain Inspection, Packers and Stockyards Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, E8-15290 38389-38390 E8-15292 Air Force Air Force Department NOTICES Privacy Act; Systems of Records, 38409-38412 E8-15259 E8-15266 Animal Animal and Plant Health Inspection Service PROPOSED RULES Recordkeeping for Approved Livestock Facilities and Slaughtering and Rendering Establishments, 38343-38346 E8-15289 Architectural Architectural and Transportation Barriers Compliance Board PROPOSED RULES Meetings: Americans with Disabilities Act Accessibility Guidelines for Passenger Vessels, 38352 E8-14950 Passenger Vessel Emergency Alarms Advisory Committee, 38353 E8-14952 Army Army Department See Engineers Corps NOTICES Availability for Non-Exclusive, Exclusive, or Partially Exclusive Licensing:
U.S. Patent Application Concerning Broad Spectrum Antibacterial Compounds, 38412 E8-15322 Intents to Grant Exclusive Licenses of U.S. Government-Owned Patents, 38412-38413 E8-15321 Meetings: Advisory Committee, 38413 E8-15328 Army Science Board 2008 Summer Study, 38413-38414 E8-15326 Board of Visitors, United States Military Academy, 38414 E8-15325 Non-Exclusive, Exclusive, or Partially Exclusive Licensing; Availability: U.S. Patent Concerning Fish Hatching Method and Apparatus, 38414 E8-15323 U.S.
Patents Concerning Prophylactic and Therapeutic Monoclonal Antibodies, 38414-38415 E8-15324 Privacy Act; Systems of Records, 38416-38422 E8-15256 E8-15257 E8-15258 E8-15296 Privacy Act of 1974; System of Records, 38415-38416 E8-15348 Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Centers Centers for Disease Control and Prevention NOTICES Meetings: Board of Scientific Counselors, Coordinating Office for Terrorism Preparedness and Emergency Response, 38460 E8-15247 Centers Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program:
Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B (CY 2009), 38502-38881 E8-14949 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38395 E8-15221 Commodity Commodity Futures Trading Commission NOTICES Exemption Request for Certain Over-the-Counter Swaps from Requirements Imposed by Commission Regulation (35.2), 38403-38405 E8-15274 Defense Defense Department See Air Force Department See Army Department See Engineers Corps See Navy Department PROPOSED RULES TRICARE:
Civilian Health and Medical Program of the Uniformed Services Changes in the John Warner National Defense Authorization, etc., 38348-38350 E8-15350 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-15272 E8-15273 38406-38408 E8-15299 E8-15302 E8-15303 Meetings: Defense Science Board, E8-15252 38408-38409 E8-15253 E8-15254 Education Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-15317 38425-38426 E8-15319 Applications:
Centers on Research and Capacity Building to Improve Outcomes for Individuals With Disabilities from Traditionally Underserved Racial and Ethnic Populations, 38426-38430 E8-15318 High-Quality Supplemental Educational Services and After-School Partnerships Demonstration (FY 2008), 38430-38436 E8-15363 National Institute on Disability and Rehabilitation Research; Disability and Rehabilitation Research Projects and Centers Program, etc., 38436-38440 E8-15359 Final Priorities for Disability Rehabilitation Research Projects, etc., 38440-38443 E8-15364 Energy Energy Department See Federal Energy Regulatory Commission See Western Area Power Administration NOTICES Environmental Impact Statement:
Solar Energy Development, et al., 38443 E8-15288 Engineers Engineers Corps NOTICES Environmental Impact Statement; Notice of Intent: Corte Madera Creek Flood Control Project, Marin County, CA, 38422-38424 E8-15329 EPA Environmental Protection Agency RULES Approval and Promulgation of Air Quality Implementation Plans: Illinois; Revisions to Emission Reduction Market System, 38328-38330 E8-15153 PROPOSED RULES Approval and Promulgation of Air Quality Implementation Plans: Illinois and Indiana— Finding of Attainment for 1-Hour Ozone for the Chicago-Gary-Lake County, IL-IN Area, 38353-38356 E8-15331 Outer Continental Shelf Air Regulations Update to Include New Jersey State Requirements, 38356-38361 E8-15352 NOTICES Meetings:
Board of Scientific Counselors Land Research Program Mid-Cycle Subcommittee, 38448-38449 E8-15339 Potential Revision of the Product Performance Test Guidelines, Structural Treatments, 38449-38450 E8-15327 FAA Federal Aviation Administration RULES Airworthiness Directives: Lockheed Model 382 Series Airplanes, 38311-38313 E8-15181 Class E Airspace; Establishment: Pampa, TX, 38314-38315 E8-14923 Plains, TX, 38313-38314 E8-14921 PROPOSED RULES Airworthiness Directives: Dassault Model Mystere-Falcon 900, Falcon 900EX, and Falcon 2000 Airplanes, 38346-38348 E8-15370 NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 38496-38497 E8-15063 FCC Federal Communications Commission RULES Creation of a Low Power Radio Service, 38331 E8-15307 PROPOSED RULES Radio Broadcasting Services: Bertram, Blanket, Burnet, Cherokee, Cross Plains, Granite Shoals, Junction, Kempner, and Llano, TX, 38361 E8-14639 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Cameron Interstate Pipeline, LLC, 38443-38444 E8-15215 Copper Valley Electric Assn., 38444 E8-15217 Environmental Assessments;
Intent: SG Resources Mississippi, LLC, 38444-38446 E8-15219 Meetings: FERC Staff Attendance; California Independent System Operator Corp., 38446 E8-15216 Technical Conference; Maritimes & Northeast Pipeline, LLC, 38447 E8-15214 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers; Exemption Applications: Vision, 38497-38499 E8-15202 Federal Reserve Federal Reserve System NOTICES Change in Bank Control Notices; Acquisition of Shares of Bank or Bank Holding Companies, 38450 E8-15168 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 38450-38451 E8-14966 E8-15169 Permissible Nonbanking Activities, 38451 E8-15167 FTC Federal Trade Commission NOTICES Agency Information Collection Activities;
Proposed Collection; Comment Request; Extension, 38451-38453 E8-15143 Consent Orders: Carlyle Partners IV, L.P., 38453-38455 E8-15208 Granting of Request for Early Termination of the Waiting Period under the Premerger Notification Rules, 38455-38458 E8-14630 Fish Fish and Wildlife Service PROPOSED RULES Papahanaumokuakea Marine National Monument Proclamation Provisions, 38375-38387 E8-15096 Food Food and Drug Administration NOTICES Draft Guidance for Industries: Use of Nucleic Acid Tests to Reduce Transmission Risk of West Nile Virus From Donors of Whole Blood, etc., 38460-38461 E8-15368 Food Food and Nutrition Service NOTICES Child and Adult Care Food Programs:
National Average Payment Rates, Day Care Home Food Service Payment Rates, etc. (July 1, 2008 through June 30, 2009), 38390-38391 E8-15335 Food Distribution Programs: Value of Donated Foods (From July 1, 2008 Through June 30, 2009), 38391-38392 E8-15333 National School Lunch, Special Milk, and School Breakfast Programs, etc., 38392-38394 E8-15330 GIPSA Grain Inspection, Packers and Stockyards Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38394-38395 E8-15300 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See National Institutes of Health NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 38458-38459 E8-14427 Grant Award to the University of Northern Colorado, 38459 E8-15297 Meetings: Advisory Committee on Minority Health, 38460 E8-15264 Homeland Homeland Security Department See U.S. Citizenship and Immigration Services See U.S. Customs and Border Protection Indian Indian Affairs Bureau NOTICES Environmental Impact Statement; Notice of Intent: Cloverdale Rancheria of Pomo Indians Fee-to-Trust Acquisition and Casino-Hotel Project, Sonoma County, CA, 38466 E8-15204 Industry Industry and Security Bureau NOTICES Meetings:
Information Systems Technical Advisory Committee (ISTAC), 38395-38396 E8-15308 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau NOTICES Environmental Impact Statement: Solar Energy Development, et al., 38443 E8-15288 International International Trade Administration NOTICES Antidumping Duty: Honey from Argentina, 38396 E8-15315 Fresh Garlic from the Peoples Republic of China: Extension of Time Limits for the Final Results of the Twelfth New Shipper Reviews, 38396-38397 E8-15309 International International Trade Commission RULES Rules of General Application and Adjudication and Enforcement, 38316-38328 E8-14872 NOTICES Investigations:
Certain Off-The-Road Tires from China, 38467 E8-15139 Silicon Metal from Russia, 38467-38468 E8-15205 Justice Justice Department NOTICES Consent Decrees: United States v. John B. Knight, Jr.; Robert D. Brown; National Petroleum Marketing, Inc., et al., 38468 E8-15220 Lodging of Consent Decree under Comprehensive Environmental Response, Compensation and Liability Act, 38468-38469 E8-15095 Labor Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38469 E8-15379 Land Land Management Bureau NOTICES Coal Lease Exploration License, WY, 38466-38467 E8-14853 Realty Actions:
Correction; Recreation and Public Purposes Act Classification of Public Lands; Sweetwater County, WY, 38467 E8-15373 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38469-38470 E8-15187 National Foundation National Foundation on the Arts and the Humanities NOTICES SES Performance Review Board, 38470 E8-15250 National Highway National Highway Traffic Safety Administration RULES Federal Motor Vehicle Safety Standards:
Power-Operated Window, Partition, and Roof Panel Systems, 38331-38340 E8-15310 PROPOSED RULES Federal Motor Vehicle Safety Standards: Windshield Zone Intrusion, 38372-38375 E8-15210 NIH National Institutes of Health NOTICES Meetings: Biomedical Library and Informatics Review Committee, 38461 E8-15080 Center for Scientific Review, 38462 E8-15073 National Center on Minority Health and Health Disparities, 38462-38463 E8-15077 National Heart, Lung, and Blood Institute, 38463 E8-15076 National Institute of General Medical Sciences, 38463 E8-15074 National Institute on Aging, 38463-38464 E8-15079 National Institute on Alcohol Abuse and Alcoholism, 38463 E8-15078 NOAA National Oceanic and Atmospheric Administration RULES Magnuson-Stevenson Fishery Conservation and Management Act Provisions:
Fisheries of the Northeastern United States; Expansion of Emergency Fishery Closure Due to the Presence of the Toxin that Causes Paralytic Shellfish Poison, 38340-38342 08-1412 PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Shrimp Fishery of the Gulf of Mexico; Revisions to Allowable Bycatch Reduction Devices, 38387-38388 08-1411 Papahanaumokuakea Marine National Monument Proclamation Provisions, 38375-38387 E8-15096 NOTICES Cooperative Institute:
Eastern U.S. Continental Shelf Frontier Exploration, Research, and Technology Development, 38397-38400 E8-15313 Federal Consistency Appeal by Broadwater Energy LLC and Broadwater Pipeline LLC, 38400 E8-15468 Meetings: Mid-Atlantic Fishery Management Council, 38400-38401 E8-15241 E8-15242 Western Pacific Fishery Management Council, 38401-38402 E8-15240 National Estuarine Research Reserve System, 38402-38403 E8-15351 E8-15362 National Science National Science Foundation NOTICES Meetings:
Proposal Review Panel for Materials Research, 38470 E8-15260 Navy Navy Department PROPOSED RULES Payments of Amounts due Mentally Incompetent Members of the Naval Service, 38350-38352 E8-15278 NOTICES Environmental Impact Statement; Notice of Intent; Cancellation: TRIDENT Support Facilities Explosives Handling Wharf, Naval Base Kitsap-Bangor, Silverdale, Kitsap County, WA Correction, 38424 E8-15304 Record of Decision: Hawaii Range Complex, 38424 E8-15246 Nuclear Nuclear Regulatory Commission NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 38470-38471 E8-15279 Overseas Overseas Private Investment Corporation NOTICES Meetings; Sunshine Act, 08-1416 38471-38472 08-1417 Personnel Personnel Management Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38472 E8-15244 Pipeline Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Hazardous Materials: Combination Packages Containing Liquids Intended for Transport by Aircraft, 38361-38372 E8-15372 Postal Postal Regulatory Commission NOTICES Meetings:
Universal Postal Service Obligation, 38472 E8-15286 SEC Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38472-38474 E8-15199 E8-15200 Meetings; Sunshine Act, 38474 E8-15285 Order of Suspension of Trading WarpRadio.com, Inc., et al., 38474 08-1415 Self-Regulatory Organizations; Proposed Rule Changes: American Stock Exchange LLC, 38474-38479 E8-15206 National Securities Clearing Corp., 38479-38481 E8-15251 NYSE Arca, Inc., 38481-38487 E8-15197 E8-15213 E8-15238 Philadelphia Stock Exchange, Inc., 38487-38489 E8-15198 SBA Small Business Administration NOTICES Disaster Declaration:
Iowa, E8-15283 38489-38490 E8-15291 Missouri, 38490 E8-15287 West Virginia, 38490 E8-15284 Disaster Declarations: Butte County, CA, 38490-38491 E8-15230 Illinois, E8-15377 38491-38492 E8-15382 Indiana, E8-15224 E8-15228 E8-15255 38492-38493 E8-15276 Iowa, E8-15233 38493 E8-15295 Kansas, 38493-38494 E8-15231 Minnesota, 38494 E8-15378 Missouri, 38494 E8-15380 Nebraska, 38494-38495 E8-15232 E8-15298 Texas, 38495-38496 E8-15376 Vermont, 38496 E8-15194 Wisoncinsin, 38496 E8-15261 Surface Surface Transportation Board NOTICES Abandonment Exemption:
Mohall Railroad, Inc., Walsh County, ND, 38499-38500 E8-15004 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board MISSING FOR: U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38464 E8-15294 Customs U.S.
Customs and Border Protection NOTICES Automated Commercial Environment: Change to Terms and Conditions for Account Access of ACE Secure Data Portal, 38464-38466 E8-15249 Western Western Area Power Administration NOTICES Post 2009 Resource Pool Loveland Area Projects, 38447-38448 E8-15140 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 38502-38881 E8-14949 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. 73 130 Monday, July 7, 2008 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 989 [Docket No. AMS-FV-07-0130; FV08-989-1 FIR] Raisins Produced From Grapes Grown in California; Final Free and Reserve Percentages for 2007-08 Crop Natural (Sun-Dried) Seedless Raisins AGENCY:
Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: The Department of Agriculture
(USDA)is adopting, as a final rule, without change, an interim final rule that established final volume regulation percentages for the 2007-08 crop of Natural (sun-dried) Seedless
(NS)raisins covered under the Federal marketing order for California raisins (order). The order regulates the handling of raisins produced from grapes grown in California and is locally administered by the Raisin Administrative Committee (Committee). The volume regulation percentages are 85 percent free and 15 percent reserve. The percentages are intended to help stabilize raisin supplies and prices, and strengthen market conditions. DATES: *Effective Date:* August 6, 2008. The volume regulation percentages apply to acquisitions of NS raisins from the 2007-08 crop until the reserve raisins from that crop are disposed of under the marketing order. FOR FURTHER INFORMATION CONTACT: Rose M. Aguayo, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:
(559)487-5901; Fax:
(559)487-5906; or E-mail: *Rose.Aguayo@usda.gov* or *Kurt.Kimmel@usda.gov* . Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491; Fax:
(202)720-8938; or E-mail: *Jay.Guerber@usda.gov* . SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement and Order No. 989, both as amended (7 CFR part 989), regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” USDA is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order provisions now in effect, final free and reserve percentages may be established for raisins acquired by handlers during the crop year. This rule continues in effect the action that established final free and reserve percentages for NS raisins for the 2007-08 crop year, which began August 1, 2007, and ends July 31, 2008. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule continues in effect the action that established final volume regulation percentages for 2007-08 crop NS raisins covered under the order. The volume regulation percentages are 85 percent free and 15 percent reserve and were established through an interim final rule published on February 19, 2008 (73 FR 9005). Free tonnage raisins may be sold by handlers to any market. Reserve raisins must be held in a pool for the account of the Committee and are disposed of through various programs authorized under the order. For example, reserve raisins may be sold by the Committee to handlers for free use or to replace part of the free tonnage raisins they exported; used in diversion programs; carried over as a hedge against a short crop; or disposed of in other outlets not competitive with those for free tonnage raisins, such as government purchase, distilleries, or animal feed. The volume regulation percentages are intended to help stabilize raisin supplies and prices, and strengthen market conditions. The Committee unanimously recommended final percentages for NS raisins on October 4, 2007, and October 11, 2007. Computation of Trade Demand Section 989.54 of the order prescribes procedures and time frames to be followed in establishing volume regulation. This includes methodology used to calculate free and reserve percentages. Pursuant to § 989.54(a) of the order, the Committee met on August 14, 2007, to review shipment and inventory data, and other matters relating to the supplies of raisins of all varietal types. The Committee computed a trade demand for each varietal type for which a free tonnage percentage might be recommended. Trade demand is computed using a formula specified in the order and, for each varietal type, is equal to 90 percent of the prior year's shipments of free tonnage and reserve tonnage raisins sold for free use into all market outlets, adjusted by subtracting the carryin on August 1 of the current crop year, and adding the desirable carryout at the end of that crop year. As specified in § 989.154(a), the desirable carryout for NS raisins shall equal the total shipments of free tonnage during August and September for each of the past 5 crop years, converted to a natural condition basis, dropping the high and low figures, and dividing the remaining sum by three, or 60,000 natural condition tons, whichever is higher. For all other varietal types, the desirable carryout shall equal the total shipments of free tonnage during August, September and one-half of October for each of the past 5 crop years, converted to a natural condition basis, dropping the high and low figures, and dividing the remaining sum by three. In accordance with these provisions, the Committee computed and announced the 2007-08 trade demand for NS raisins at 232,822 tons as shown below. Computed Trade Demand [Natural condition tons] NS Raisins Prior year's shipments 309,169 Multiplied by 90 percent 0.90 Equals adjusted base 278,252 Minus carryin inventory 105,430 Plus desirable carryout 60,000 Equals computed NS trade demand 232,822 Computation of Volume Regulation Percentages Section 989.54(b) of the order requires that the Committee announce crop estimates and determine whether volume regulation is warranted for the varietal types for which it computed a trade demand. If the Committee determines that volume regulation is warranted, it must also compute and announce preliminary free and reserve percentages. Section 989.54(c) provides that the Committee may modify the preliminary free and reserve percentages prior to February 15 by announcing interim percentages which release less than the trade demand. Section 989.54(d) requires the Committee to recommend final percentages no later than February 15 which will tend to release the full trade demand. Final percentages are established by USDA through informal rulemaking. The Committee met on October 4 and October 11, 2007, and announced a 2007-08 crop estimate of 273,908 tons for NS raisins pursuant to § 989.54(b). NS raisins are the major varietal type of California raisin. The crop estimate of 273,908 tons was significantly higher than the computed trade demand of 232,822 tons. Thus, the Committee determined that volume regulation for NS raisins was warranted. The Committee therefore announced preliminary volume regulation percentages of 72 percent free and 28 percent reserve for NS raisins, which released 85 percent of the computed trade demand, as required by the order, since a field price had been established. Field price is the price paid by handlers to producers for the free tonnage portion of their crop. The field price for 2007-08 NS raisins is $1,210 per ton. The Committee also announced interim volume regulation percentages of 84.75 percent free and 15.25 percent reserve, and recommended final volume regulation percentages of 85 percent free and 15 percent reserve pursuant to § 989.54(d). The Committee has historically recommended interim and final volume regulation percentages later in the season. However, the Committee determined it was in the best interest of producers and handlers to establish interim and final percentages as soon as possible for the 2007-08 crop year. Rains during the harvest period this season while grapes were lying on the ground to dry caused a problem with embedded sand particles on a portion of the crop. To remedy this situation, growers subjected the raisins to a process known as reconditioning to remove the sand in order for the raisins to be acceptable for acquisition by handlers. This process resulted in additional costs to growers. Establishing interim and final percentages early in the season allowed growers to be paid on a higher percentage of their crop earlier in the season. This helped growers meet the costs of reconditioning, and the reconditioned product was then suitable for acquisition and processing by handlers. Pursuant to § 989.54(d), the Committee's calculations and determinations to arrive at final percentages for NS raisins are shown in the table below: Final Volume Regulation Percentages [Natural condition tons] NS Raisins Trade demand 232,822 Divided by crop estimate 273,908 Equals the free percentage 85.00 100 minus free percentage equals the reserve percentage 15.00 By the week ending May 17, 2008, deliveries of NS raisins totaled 322,458 tons of NS raisins. Thus, the committee's recommendation provided handlers with an additional 41,267 tons over the computed trade demand (322,458 tons × 85 percent = 274,089 tons; 274,089 tons−232,822 tons = 41,267 tons). This additional tonnage is not expected to cause disorderly marketing conditions, as California export shipments are up about 30 percent due to other countries' declining export shipments. In addition, USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (Guidelines) specify that 110 percent of recent years' sales should be made available to primary markets each season for marketing orders utilizing reserve pool authority. This goal was met for NS raisins for the 2007-08 crop year. Application of the final percentages made 232,822 tons of raisins available to handlers when the crop estimate was realized. In addition, handlers are offered additional reserve raisins for sale under the “10 plus 10 offers.” As specified in § 989.54(g), the 10 plus 10 offers are two offers of reserve pool raisins which are made available to handlers during each season. For each such offer, a quantity of reserve raisins equal to 10 percent of the prior year's shipments is made available to handlers for free use. Handlers may sell their 10 plus 10 raisins to any market. Based on 2006-07 NS shipments of 309,169 natural condition tons, 30,916.9 tons should have been made available in each of the 10 plus 10 offers. However, this amount was not available in reserve. The first 10 plus 10 offer was made in February 2008. A total of 6,065.2 tons of remaining 2006-07 reserve raisins and 24,851.7 tons of 2007-08 reserve raisins (a total of 30,916.9 tons) were made available to raisin handlers and all available tonnage was purchased and released to handlers during the 2007-08 crop year. The second 10 plus 10 offer (a balance of about 24,000 tons remaining in the reserve pool) will be made available to handlers by July 31, 2008. Thus, all available reserve pool raisins should be offered to handlers for free use through the 10 plus 10 offers by the end of the crop year. In addition to the second anticipated 10 plus 10 purchase, 14,793 tons of 2006-07 reserve raisins were sold to handlers through 10 plus 10 offers in July 2007 and released to handlers in the 2007-08 crop year (August 2007). Finally, 105,430 tons of free tonnage raisins were carried into the 2007-08 crop year in handler's inventories. Combining all the raisins available to handlers for use as free tonnage for the 2007-08 crop year (including the 232,822-ton trade demand) results in a total supply of 404,962 tons of natural condition raisins, or 380,674 packed tons. This equates to 131 percent of the 2006-07 shipments of 309,169 natural condition tons or 290,628 packed tons. (Additionally, at least another 41,000 tons of raisins are available to handlers for free use with the Committee's underestimation of the crop.) In addition to the 10 plus 10 offers, § 989.67(j) of the order provides authority for sales of reserve raisins to handlers under certain conditions such as a national emergency, crop failure, change in economic or marketing conditions, or if free tonnage shipments in the current crop year exceed shipments during a comparable period of the prior crop year. Such reserve raisins may be sold by handlers to any market. When implemented, the additional offers of reserve raisins make even more raisins available to primary markets, which is consistent with USDA's Guidelines. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 21 handlers of California raisins who are subject to regulation under the order and approximately 3,000 raisin producers in the regulated area. Small agricultural firms are defined by the Small Business Administration
(SBA)(13 CFR 121.201) as those having annual receipts of less than $6,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. No more than 8 handlers and a majority of producers of California raisins may be classified as small entities. Since 1949, the California raisin industry has operated under a Federal marketing order. The order contains authority to, among other things, limit the portion of a given year's crop that can be marketed freely in any outlet by raisin handlers. This volume regulation mechanism is used to stabilize supplies and prices and strengthen market conditions. If the primary market (the normal domestic market) is over-supplied with raisins, grower prices decline substantially. Pursuant to § 989.54(d) of the order, this rule continues in effect the action that established final volume regulation percentages for 2007-08 crop NS raisins. The volume regulation percentages are 85 percent free and 15 percent reserve. Free tonnage raisins may be sold by handlers to any market. Reserve raisins must be held in a pool for the account of the Committee and are disposed of through certain programs authorized under the order. Volume regulation was warranted this season because the Committee's October crop estimate of 273,908 tons was significantly higher than the 232,822 ton trade demand. As mentioned previously, by the week ending May 17, 2008, acquisitions were at 322,458 tons. The volume regulation procedures have helped the industry address its marketing problems by keeping supplies in balance with domestic and export market needs, and strengthening market conditions. The volume regulation procedures fully supply the domestic and export markets, provide for market expansion, and help reduce the burden of oversupplies in the domestic market. Raisin grapes are a perennial crop, so production in any year is dependent upon plantings made in earlier years. The sun-drying method of producing raisins involves considerable risk because of variable weather patterns. Even though the product and the industry are viewed as mature, the industry has experienced considerable change over the last several decades. Before the 1975-76 crop year, more than 50 percent of the raisins were packed and sold directly to consumers. Now, about 62 percent of raisins are sold in bulk. This means that raisins are now sold to consumers mostly as an ingredient in another product such as cereal and baked goods. In addition, for a few years in the early 1970's, over 50 percent of the raisin grapes were sold to the wine market for crushing. Since then, the percent of raisin-variety grapes sold to the wine industry has decreased. California's grapes are classified into three groups—table grapes, wine grapes, and raisin-variety grapes. Raisin-variety grapes are the most versatile of the three types. They can be marketed as fresh grapes, crushed for juice in the production of wine or juice concentrate, or dried into raisins. Annual fluctuations in the fresh grape, wine, and concentrate markets, as well as weather-related factors, cause fluctuations in raisin supply. This type of situation introduces a certain amount of variability into the raisin market. Although the size of the crop for raisin-variety grapes may be known, the amount dried for raisins depends on the demand for crushing. This makes the marketing of raisins a more difficult task. These supply fluctuations can result in producer price instability and disorderly market conditions. Volume regulation is helpful to the raisin industry because it lessens the impact of such fluctuations and contributes to orderly marketing. For example, producer prices for NS raisins remained fairly steady from the 1993-94 through the 1997-98 seasons, although production varied. As shown in the table below, during those years, production varied from a low of 272,063 tons in 1996-97 to a high of 387,007 tons in 1993-94. According to Committee data, the total producer return per ton during those years, which includes proceeds from both free tonnage plus reserve pool raisins, has varied from a low of $904.60 in 1993-94 to a high of $1,049.20 in 1996-97. Producer prices for the 1998-99 and 1999-2000 seasons increased significantly due to back-to-back short crops during those years. Record large crops followed and producer prices dropped dramatically for the 2000-01 through 2003-04 crop years, as inventories grew while demand stagnated. However, producer prices were higher for the 2004-05, 2005-06, and 2006-07 crop years. The chart below shows data regarding NS raisin deliveries, field prices, and producer prices over the past several years: Natural Seedless (Natural Condition) Deliveries, Field Prices and Producer Prices Crop year Deliveries
(tons)Field prices (per ton) 1 Producer prices (per ton) 2006-07 282,999 $1,210.00 2 $1,089.00 2005-06 319,126 1,210.00 2 998.25 2004-05 265,262 1,210.00 3 1,210.00 2003-04 296,864 810.00 567.00 2002-03 388,010 745.00 491.20 2001-02 377,328 880.00 650.94 2000-01 432,616 877.50 603.36 1999-2000 299,910 1,425.00 1,211.25 1998-99 240,469 1,290.00 3 1,290.00 1997-98 382,448 1,250.00 946.52 1996-97 272,063 1,220.00 1,049.20 1995-96 325,911 1,160.00 1,007.19 1994-95 378,427 1,160.00 928.27 1993-94 387,007 1,155.00 904.60 1 Field prices for NS raisins are established by the Raisin Bargaining Association, and are also referred to in the industry as the free tonnage price for raisins. 2 Return-to-date, reserve pool still open. 3 No volume regulation. There are essentially two broad markets for raisins—domestic and export. Domestic shipments have been generally increasing in recent years. Although domestic shipments decreased from a high of 204,805 packed tons during the 1990-91 crop year to a low of 156,325 packed tons in 1999-2000, they increased from 174,117 packed tons during the 2000-01 crop year to 188,944 tons during the 2006-07 crop year. Export shipments ranged from a high of 107,931 packed tons in 1991-92 to a low of 91,599 packed tons in the 1999-2000 crop year. Export shipments increased to 106,755 tons of raisins during the 2004-05 crop year, but fell to 101,684 tons in 2006-07. For the 2007-08 crop year, exports are up about 30 percent due to a short crop from Turkey. The per capita consumption of raisins has declined from 2.07 pounds in 1988 to 1.44 pounds in 2005. This decrease is consistent with the decrease in the per capita consumption of dried fruits in general, which is due to the increasing availability of most types of fresh fruit throughout the year. While the overall demand for raisins has increased in three of the last four years (as reflected in increased commercial shipments), production has been decreasing. Deliveries of NS dried raisins from producers to handlers reached an all-time high of 432,616 tons in the 2000-01 crop year. This large crop was preceded by two short crop years; deliveries were 240,469 tons in 1998-99 and 299,910 tons in 1999-2000. Deliveries for the 2000-01 crop year soared to a record level because of increased bearing acreage and yields. Deliveries for the 2001-02 crop year were at 377,328 tons, 388,010 tons for the 2002-03 crop year, 296,864 for the 2003-04 crop year, and 265,262 tons for the 2004-05 crop year. After three crop years of high production and a large 2001-02 carryin inventory, the industry diverted raisin production to other uses or removed bearing vines. Diversions/removals totaled 38,000 acres in 2001; 27,000 acres in 2002; and 8,000 acres of vines in 2003. These actions resulted in declining deliveries of 296,864 tons for the 2003-04 crop year and 265,262 tons for the 2004-05 crop year. Although deliveries increased in 2005-06 to 319,126 tons, this may have been because fewer growers opted to contract with wineries, as raisin variety grapes crushed in 2005-06 decreased by 161,000 green tons, the equivalent of over 40,000 tons of raisins. In 2006-07, raisin deliveries were again less than 300,000 tons, at 282,999 tons. Deliveries have increased for the 2007-08 crop year, and were at 322,458 for the week ending May 17, 2008. The order permits the industry to exercise volume regulation provisions, which allow for the establishment of free and reserve percentages, and establishment of a reserve pool. One of the primary purposes of establishing free and reserve percentages is to equilibrate supply and demand. If raisin markets are over-supplied with product, producer prices will decline. Raisins are generally marketed at relatively lower price levels in the more elastic export market than in the more inelastic domestic market. This results in a larger volume of raisins being marketed and enhances producer returns. In addition, this system allows the U.S. raisin industry to be more competitive in export markets. The reserve percentage limits what handlers can market as free tonnage. Data available as of May 17, 2008, showed that deliveries of NS raisins were at 322,458 tons. The 15 percent reserve limited the total free tonnage to 274,089 natural condition tons (.85 × 322,458 ton crop). Adding the 274,089 ton figure with the carryin of 105,430 tons, plus 45,710 tons of 10 plus 10 reserve raisins that were released to handlers during the 2007-08 crop year (14,793 tons in August 2007 and 30,917 tons in February 2008) made the total free supply equal to 425,229 natural condition tons. Including the anticipated 24,000 tons or reserve raisins that likely will be offered in the second 10 plus 10 offer to be held prior to July 31, 2008, the end of the crop year, should make the total free supply 449,229 natural condition tons. With volume regulation, producer prices are expected to be higher than without volume regulation. This price increase is beneficial to all producers regardless of size and enhances producers' total revenues in comparison to no volume regulation. Establishing a reserve allows the industry to help stabilize supplies in both domestic and export markets, while improving returns to producers. Free and reserve percentages are established by varietal type, and usually in years when the supply exceeds the trade demand by a large enough margin that the Committee believes volume regulation is necessary to maintain market stability. Accordingly, in assessing whether to apply volume regulation or, as an alternative, not to apply such regulation, it was determined that volume regulation was warranted for the 2007-08 season for only one of the nine raisin varietal types defined under the order. The free and reserve percentages continue in effect the release of the full trade demand and apply uniformly to all handlers in the industry, regardless of size. For NS raisins, with the exception of the 1998-99 and 2004-05 crop years, small and large raisin producers and handlers have been operating under volume regulation percentages every year since 1983-84. There are no known additional costs incurred by small handlers that are not incurred by large handlers. While the level of benefits of this rulemaking are difficult to quantify, the stabilizing effects of the volume regulations impact small and large handlers positively by helping them maintain and expand markets even though raisin supplies fluctuate widely from season to season. Likewise, price stability positively impacts small and large producers by allowing them to better anticipate the revenues their raisins will generate. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. There are some reporting, recordkeeping and other compliance requirements under the order. The reporting and recordkeeping requirements are necessary for compliance purposes and for developing statistical data for maintenance of the program. The requirements are the same as those applied in past seasons. Thus, this action imposes no additional reporting or recordkeeping requirements on either small or large raisin handlers. The forms require information which is readily available from handler records and which can be provided without data processing equipment or trained statistical staff. The information collection and recordkeeping requirements have been previously approved by the Office of Management and Budget
(OMB)under OMB No. 0581-0178, Vegetable and Specialty Crops. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. Further, the Committee's meetings were widely publicized throughout the raisin industry and all interested persons were invited to attend the meetings and participate in the Committee's deliberations. Like all Committee meetings, the August 14, 2007, October 4, 2007, and October 11, 2007, meetings were public meetings and all entities, both large and small, were able to express their views on this issue. Also, the Committee has a number of appointed subcommittees to review certain issues and make recommendations to the Committee. The Committee's Reserve Sales and Marketing Subcommittee met on August 14, 2007, and October 4, 2007, and discussed these issues in detail. Those meetings were also public meetings and both large and small entities were able to participate and express their views. An interim final rule concerning this action was published in the **Federal Register** on February 19, 2008. Copies of the rule were mailed by the Committee's staff to all Committee members and alternates and raisin handlers. In addition, the rule was made available through the Internet by USDA and the Office of the Federal Register. That rule provided a 60-day comment period which ended April 21, 2008. No comments were received during the comment period. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide* . Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the **Federal Register** (73 FR 9005, February 19, 2008) will tend to effectuate the declared policy of the Act. List of Subjects in 7 CFR Part 989 Grapes, Marketing agreements, Raisins, Reporting and recordkeeping requirements. PART 989—RAISINS PRODUCED FROM GRAPES GROWN IN CALIFORNIA Accordingly, the interim final rule amending 7 CFR part 989 which was published at 73 FR 9005 on February 19, 2008, is adopted as a final rule without change. Dated: July 1, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-15293 Filed 7-3-08; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0740; Directorate Identifier 2008-NM-077-AD; Amendment 39-15605; AD 2008-14-10] RIN 2120-AA64 Airworthiness Directives; Lockheed Model 382, 382B, 382E, 382F, 382G, and 382J Series Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; request for comments. SUMMARY: We are adopting a new airworthiness directive
(AD)for all Lockheed Model 382, 382B, 382E, 382F, 382G, and 382J series airplanes. This AD requires, among other actions, an inspection to determine whether a certain upper engine mount bolt is installed, and replacement of any discrepant upper engine mount bolt with a new one. This AD results from a report indicating that several upper engine mount bolts manufactured by a certain supplier broke during installation. We are issuing this AD to prevent failure of the upper engine mount bolts, which could result in reduced structural capability of an engine mount, and possible separation of a strut and engine from the airplane during flight. DATES: This AD is effective July 22, 2008. We must receive comments on this AD by September 5, 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: Carl Gray, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 450, Atlanta, Georgia 30349; telephone
(770)703-6131; fax
(770)703-6097. SUPPLEMENTARY INFORMATION: Discussion We have received a report indicating that several upper engine mount bolts broke during installation. These bolts have part number (P/N) NAS 636 and have “AFC” or “A” (AirFasco of Canton, Ohio) stamped on the bolt head. Upper engine mount bolts are used to attach the quick engine change
(QEC)to the truss mounts in a four-bolt pattern (two upper and two lower bolts). The failures occurred on military versions of Lockheed Model 382, 382B, 382E, 382F, 382G, and 382J series airplanes. The discrepant bolts were located in the upper two positions of the four bolt pattern (different bolts are installed in the lower two positions and are not interchangeable with the bolts in the upper two positions). Investigation revealed that Lockheed has not approved AirFasco as a supplier of these bolts. Material hardness testing also revealed that the discrepant bolts do not meet hardness requirements. The cause for the inadequate hardness is improper heat treatment. Failure of the upper engine mount bolts could result in reduced structural capability of an engine mount, and possible separation of a strut and engine from the airplane during flight. The upper engine mount bolts are commercially available. We do not know whether any of the discrepant bolts were sold to commercial operators by the supplier or an agent. Therefore, the discrepant bolts might be installed on Lockheed Model 382, 382B, 382E, 382F, 382G, and 382J series airplanes. FAA's Determination and Requirements of This AD We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the(se) same type design(s). This AD requires, among other actions, an inspection to determine whether a certain upper engine mount bolt is installed, and replacement of any discrepant upper engine mount bolt with a new one. FAA's Justification and Determination of the Effective Date It is not known when or if the discrepant upper engine mount bolts might have been installed on affected airplanes. The QEC-to-truss mount joint is designed to be failsafe for a single failed upper engine mount bolt. If both bolts in the upper position of an upper engine mount are discrepant, the ability for this joint to carry the QEC loads is compromised, and consequently one upper engine mount bolt could fail. If one bolt in the upper position of an upper engine mount fails, the other bolt in the upper position of the upper engine mount could also fail within a short amount of time. Failure to replace these discrepant bolts greatly increases the risk of operating with a QEC attachment system that might be incapable of handling design level loads. Because of our requirement to promote safe flight of civil aircraft and the critical need to ensure the structural capability of an engine mount and the short compliance time involved with this action, this AD must be issued immediately. Because an unsafe condition exists that requires the immediate adoption of this AD, we find that notice and opportunity for prior public comment hereon are impracticable and that good cause exists for making this amendment effective in less than 30 days. Comments Invited This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0740; Directorate Identifier 2008-NM-077-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 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. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, 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 adding the following new AD: **2008-14-10 Lockheed:** Amendment 39-15605. Docket No. FAA-2008-0740; Directorate Identifier 2008-NM-077-AD. Effective Date
(a)This airworthiness directive
(AD)is effective July 22, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all Lockheed Model 382, 382B, 382E, 382F, 382G, and 382J series airplanes, certificated in any category. Unsafe Condition
(d)This AD results from a report indicating that several upper engine mount bolts manufactured by a certain supplier broke during installation. We are issuing this AD to prevent failure of the upper engine mount bolts, which could result in reduced structural capability of an engine mount, and possible separation of a strut and engine from the airplane during flight. Compliance
(e)Comply with this AD within the compliance times specified, unless already done. Access and Inspection
(f)Within 10 days after the effective date of this AD do the actions specified in paragraphs (f)(1), (f)(2), and (f)(3) of this AD.
(1)Make the airplane safe for maintenance in accordance with a method approved by the Manager, Atlanta Aircraft Certification Office (ACO), FAA. Chapter 71-00 of the Lockheed Hercules Maintenance Manual is one approved method.
(2)Gain access to the upper engine mount bolts by opening the left and right cowling doors on each engine.
(3)Inspect the visible surface head of each bolt in the upper position of each upper engine mount to determine whether part number (P/N) “NAS 636” is stamped across the top, and whether the manufacturer's code “AFC” or “A” (i.e., AirFasco) is stamped across the bottom. All other manufacturers' codes are acceptable. Replacement and Corrective Actions
(g)If any upper position bolt, P/N NAS 636, having “AFC” or “A” stamped across the bottom of the surface head is found during the inspection required by paragraph (f)(3) of this AD, before further flight, replace that bolt with a new bolt, P/N NAS 636, having a manufacturers' code other than “AFC” or “A,” in accordance with a method approved by the Manager, Atlanta ACO, FAA. One approved method is the following: To replace an engine mount bolt without removing an engine, do the actions specified in paragraphs (g)(1) through (g)(8) of this AD. If both bolts in the upper position of an engine mount must be replaced, the replacements must be done one at a time to prevent alignment problems.
(1)Shut down and disconnect external electrical power in accordance with a method approved by the Manager, Atlanta ACO, FAA. Chapter 24-40 of the Lockheed Hercules Maintenance Manual is one approved method.
(2)Attach a warning tag and close the external power receptacle door.
(3)Install the nacelle hoist sling on the power package.
(4)Lift the nacelle hoist sling enough to take up load. Warning: When “NO-LOADING” an engine with the sling, the intention is to transfer most of the weight of the engine from the airplane to the sling. This requires some judgment on the part of the technician. Under no circumstances should the sling be raised enough to lift the airplane.
(5)Remove the discrepant upper engine mount bolt and washer.
(6)Install the new upper engine mount bolt, P/N NAS 636, having a manufacturers' code other than “AFC” or “A,” and washer, and torque to between 308 and 458 foot-pounds (3,700 to 5,500 inch-pounds).
(7)Remove the nacelle hoist sling from the power package.
(8)Once all discrepant bolts in the upper position of each upper engine mount have been replaced, restore the airplane to service in accordance with a method approved by the Manager, Atlanta ACO, FAA. Chapter 71-00 of the Lockheed Hercules Maintenance Manual is one approved method. Note 1: It is the intent of the actions specified in paragraph
(g)of this AD to allow replacement of individual upper engine mount bolts without having to do any other maintenance. Parts Installation
(h)As of the effective date of this AD, no person may install a bolt, P/N NAS 636, having “AFC” or “A” stamped across the bottom of the surface head, in the upper position of any upper engine mount, on any airplane. Alternative Methods of Compliance (AMOCs) (i)(1) The Manager, Atlanta ACO, FAA, ATTN: Carl Gray, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta ACO, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia 30349; telephone
(770)703-6131; fax
(770)703-6097; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Material Incorporated by Reference
(j)None. Issued in Renton, Washington, on June 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-15181 Filed 7-3-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2008-0683; Airspace Docket No. 08-ASW-11] Establishment of Class E Airspace; Plains, TX AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Direct final rule; request for comments. SUMMARY: This action establishes Class E5 airspace at Plains, TX. Additional controlled airspace is necessary to accommodate aircraft using new RNAV Global Positioning System
(GPS)Standard Instrument Approach Procedures
(SIAP)at Yoakum County Airport, Plains, TX. This action will enhance the safety and management of Instrument Flight Rules
(IFR)aircraft operations at Yoakum County Airport. DATES: *Effective Date:* 0901 UTC September 25, 2008. Comments for inclusion in the rules Docket must be received August 21, 2008. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. ADDRESSES: Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You must identify the docket number FAA-2008-0683/Airspace Docket No. 08-ASW-11, at the beginning of your comments. You may also submit comments through the Internet at *http://regulations.gov* . You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527) is on the ground floor of the building at the above address. FOR FURTHER INFORMATION CONTACT: Gary A. Mallett, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, Fort Worth, TX 76193-0530; telephone
(817)222-4949. SUPPLEMENTARY INFORMATION: The Direct Final Rule Procedure The FAA anticipates that this regulation will not result in adverse or negative comments, and, therefore, issues it as a direct final rule. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the **Federal Register** indicating that no adverse or negative comments were received and confirming the effective date of the rule. If the FAA receives, within the comment period, an adverse or negative comment, or written comment notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the **Federal Register** , and a notice of proposed rulemaking may be published with a new comment period. Comments Invited Although this action is in the form of a direct final rule, and was not preceded by a notice of proposed rulemaking, interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. An electronic copy of this document may be downloaded from *http://www.regulations.gov* . Communications should identify both docket numbers and be submitted in triplicate to the address specified under the caption ADDRESSES above or through the Web site. All communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received. The Rule This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace at Plains, TX, providing the airspace required to support the new RNAV
(GPS)RWY 03/21 approach developed for IFR landings at Yoakum County Airport. Controlled airspace extending upward from 700 feet above the surface is required to encompass all SIAPs and for the safety of IFR operations at Yoakum County Airport. Designations for Class E5 airspace areas extending upward from 700 feet above the surface of the earth are published in the FAA Order 7400.9R, signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR part 71.1. Class E5 designations listed in this document will be published subsequently in the Order. Agency Findings The regulations adopted herein 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 various levels of government. Therefore, it is determined that this final rule does not have federalism implication under Executive Order 13132. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore,
(1)is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in title 49, of the United States Code. 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. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E5 airspace at Yoakum County Airport, Plains, TX. Lists of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (Air). Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9R, Airspace Designation and Reporting Points, signed August 15, 2007, and effective September 15, 2007, is amended as follows: Paragraph 6002 Class E5 airspace areas extending upward from 700 feet above the surface of the earth. ASW TX CLASS E5 Plains, TX [New] Yoakum County Airport (Lat. 33°13′02″ N., long. 102°49′49″ W.) That airspace extending upward from 700 feet above the surface within a 6.54-mile radius of Yoakum County Airport. Issued in Fort Worth, TX, on June 24, 2008. Donald R. Smith, Manager, Operations Support Group, ATO Central Service Center. [FR Doc. E8-14921 Filed 7-3-08; 8:45 am] BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2008-0610; Airspace Docket No. 08-ASW-10] Establishment of Class E Airspace; Pampa, TX AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Direct final rule; request for comments. SUMMARY: This action establishes Class E5 airspace at Pampa, TX. Controlled airspace is necessary to accommodate aircraft using new RNAV Global Positioning System
(GPS)Standard Instrument Approach Procedures
(SIAP)at Mesa Vista Ranch Airport. The FAA is proposing this action to enhance the safety and management of Instrument Flight Rules
(IFR)aircraft operations at Mesa Vista Ranch Airport, Pampa, TX. DATES: *Effective Date:* 0901 UTC September 25, 2008. Comments for inclusion in the rules Docket must be received August 21, 2008. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. ADDRESSES: Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You must identify the docket number FAA-2008-06 10/Airspace Docket No. 08-ASW-10, at the beginning of your comments. You may also submit comments through the Internet at *http://regulations.gov* . You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527) is on the ground floor of the building at the above address. FOR FURTHER INFORMATION CONTACT: Gary A. Mallett, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, Fort Worth, TX, 76193-0530; telephone
(817)222-4949. SUPPLEMENTARY INFORMATION: The Direct Final Rule Procedure The FAA anticipates that this regulation will not result in adverse or negative comments, and, therefore, issues it as a direct final rule. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the **Federal Register** indicating that no adverse or negative comments were received and confirming the effective date of the rule. If the FAA receives, within the comment period, an adverse or negative comment or written comment notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the **Federal Register** , and a notice of proposed rulemaking may be published with a new comment period. Comments Invited Although this action is in the form of a direct final rule, and was not preceded by a notice of proposed rulemaking, interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. An electronic copy of this document may be downloaded from *http://www.regulations.gov* . Communications should identify both docket numbers and be submitted in triplicate to the address specified under the caption ADDRESSES above or through the Web site. All communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received. The Rule This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace at Pampa, TX providing the airspace required to support the new RNAV
(GPS)RWY 01/19 approach developed for IFR landings at Mesa Vista Ranch Airport. Controlled airspace extending upward from 700 feet above the surface is required to encompass all SIAPs and for the safety of IFR operations at Mesa Vista Ranch Airport. Designations for Class E airspace areas extending upward from 700 feet above the surface of the earth are published in the FAA Order 7400.9R, signed August 15, 2007 and effective September 15, 2007, which is incorporated by reference in 14 CFR part 71.1. Class E designations listed in this document will be published subsequently in the Order. Agency Findings The regulations adopted herein 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 various levels of government. Therefore, it is determined that this final rule does not have federalism implication under Executive Order 13132. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore,
(1)is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49, of the United States Code. 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. This rulemaking is promulgated under the authority described in subtitle VII, Part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E5 airspace near Pampa, TX. Lists of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (Air). Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR71.1 of Federal Aviation Administration Order 7400.9R, Airspace Designation and Reporting Points, signed August 15, 2007, and effective September 15, 2007, is amended as follows: Paragraph 6002 Class ES airspace areas extending upward from 700 feet above the surface of the earth. ASW TX Class E5 Pampa, TX [New] Mesa Vista Ranch Airport (Lat. 35°53′21″ N., long. 101°01′49″ W.) That airspace extending upward from 700 feet above the surface within a 6.49-mile radius of Mesa Vista Ranch Airport. Issued in Fort Worth, TX, on June 24, 2008. Donald R. Smith, Manager, Operations Support Group, ATO Central Service Center. [FR Doc. E8-14923 Filed 7-3-08; 8:45 am] BILLING CODE 4910-13-M INTERNATIONAL TRADE COMMISSION 19 CFR Parts 201 and 210 [Docket No. MISC-022] Rules of General Application and Adjudication and Enforcement AGENCY: International Trade Commission. ACTION: Final rule. SUMMARY: The United States International Trade Commission (“Commission”) amends its Rules of Practice and Procedure concerning rules of general application, adjudication, and enforcement. The amendments are necessary to make certain technical corrections, to clarify certain provisions, to harmonize different parts of the Commission's rules, and to address concerns that have arisen in Commission practice. DATES: This regulation is effective August 6, 2008. FOR FURTHER INFORMATION CONTACT: James Worth, Office of the General Counsel, United States International Trade Commission, telephone 202-205-3065. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server at *http://www.usitc.gov.* SUPPLEMENTARY INFORMATION: Background Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. This rulemaking seeks to update certain outdated provisions and improve other provisions of the Commission's existing Rules of Practice and Procedure. The Commission is amending its rules covering investigations under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) (“section 337”) in order to increase the efficiency of its section 337 investigations. The Commission published a notice of proposed rulemaking
(NOPR)in the **Federal Register** at 72 FR 72280 (Dec. 20, 2007), proposing to amend the Commission's Rules of Practice and Procedure to make certain changes to rules of general application, adjudication, and enforcement. Although the Commission considers these rules to be procedural rules which are excepted from notice-and-comment under 5 U.S.C. 553(b)(3)(A), the Commission invited the public to comment on all the proposed rules amendments.The NOPR requested public comment on the proposed rules within 60 days of publication of the NOPR. Subsequently, the Commission extended the deadline for submitting comments by six weeks. 73 FR 8836 (Feb. 15, 2008). Further, in response to a request from the Embassy of the People's Republic of China, the Chairman granted an extension by letter of March 20, 2008, to the Chinese government and relative Chinese enterprises to submit comments until April 30, 2008. The Commission received a total of five sets of comments, one each from the ITC Trial Lawyer's Association (ITCTLA), the Intellectual Property Owners Association (IPO), the American Intellectual Property Law Association (AIPLA), the law firm of Adduci, Mastriani & Schaumberg LLP (AMS), and the Ministry of Commerce of the People's Republic of China (MOFCOM). The Commission carefully considered all comments that it received. The Commission's response is provided below in a section-by-section analysis. The Commission appreciates the time and effort the commentators devoted to the task. As required by the Regulatory Flexibility Act, the Commission certifies that these regulatory amendments will not have a significant impact on small business entities. Overview of the Amendments to the Regulations The final regulations contain four changes from those proposed in the NOPR. These changes are summarized here. First, with regard to § 210.11(b), relating to the service of the complaint, the Commission has substituted the word “complainant” for “party”. Second, with regard to § 210.12(a)(9)(viii), the Commission has determined to require that complainants provide claim charts with the filing of the complaint to specify the allegations of infringement with regard to each independent patent claim asserted, rather than just one exemplary claim per patent. Third, with regard to § 210.39, the Commission adopted the commentators' suggestion to require the parties to notify the Commission of the issuance or dissolution of a stay of a parallel district court proceeding only if the issuance or dissolution actually occurs, and to provide ten days for the parties to notify the Commission. Fourth, the Commission has withdrawn its proposal to eliminate reference to the position of chief administrative law judge in §§ 210.15, 210.20, 210.58, and 210.75. A comprehensive explanation of the rule changes is provided in the section-by-section analysis below. The section-by-section analysis includes a discussion of all eleven modifications suggested by the commentators. Many positive comments were received for the majority of the 50 specific proposals in the NOPR. The proposals for which only positive comments were received are unchanged. Section-by-Section Analysis 19 CFR Part 201 Subpart B—Initiation and Conduct of Investigations Section 201.16 (Service by Overnight Delivery) The NOPR proposed to amend § 201.16 to allow all parties one extra day to respond to documents served by overnight delivery, and to conform § 201.16 to §§ 210.6 and 210.7. AMS supports the proposed revision. MOFCOM suggests that the Commission amend 19 CFR 201.16 to clarify whether or not all the parties should be served via the same method. MOFCOM suggests that persons located in a foreign country continue to be afforded ten additional calendar days to respond under 19 CFR 201.16, as the rule currently allows. The current rule, however, allows ten extra days to persons located in a foreign country when service is by first-class mail, and the proposed amendment does not affect this provision. Therefore, the rule is unchanged from the proposed rule. 19 CFR Part 210 Subpart A—Rules of General Applicability Section 210.7(b) The NOPR proposed to amend § 210.7 to require that each party designate one attorney or agent to receive service of process. The ITCTLA proposes that a party designate a single attorney to receive service from the Commission and from the Office of Unfair Import Investigations (“OUII”) of hard copies of all papers, but that the private parties also be authorized to agree to serve several co-counsel for the same parties using either electronic or hard copy means. The Commission has not adopted this proposal because the parties currently may agree to serve extra copies on each other by electronic or hard copy means; this practice would not be disturbed by the Commission rule. MOFCOM objects to the proposed amendment on the basis that it would take extra time for the attorney or agent who is served a document to share that documents with the rest of the party's team. AMS supports the proposed revision. The Commission believes that the saving of paper, time, and labor for the Commission and the parties by designating one attorney or agent to receive service of process is beneficial and would not prejudice parties receiving documents. Therefore, the rule is unchanged from the proposed rule. Subpart B—Commencement of Preinstitution Proceedings and Investigations Section 210.11(b) The NOPR proposed to amend § 210.11(b) relating to service of the complaint. The proposed amendment does not alter the existing regulatory language which describes the ability of a party to effect personal service: “With leave from the presiding administrative law judge, a party may attempt to effect personal service of the complaint and notice of investigation upon a respondent, if the Secretary's efforts to serve the respondent have been unsuccessful. If the party succeeds in serving the respondent by personal service, the party must notify the administrative law judge and file proof of such service with the Secretary.” The term “party” is defined in § 201.2 as “any person who has filed a complaint or petition on the basis of which an investigation has been instituted, or any person whose entry of appearance has been accepted pursuant to § 201.11(a) or (c).” Given this definition, MOFCOM states that it is unclear what “a party” refers to in § 210.11(b). In light of this comment, the word “complainant” is substituted for the term “party” in order to clarify the persons affected. Subpart C—Pleadings Section 210.12(a)(9)(iv), (a)(10)(i), (a)(10)(ii) (Submission of License Agreements) The NOPR further proposed amending § 210.12 by adding new paragraphs (a)(9)(iv) and (a)(10)(i) and (a)(10)(ii) to reduce the number of copies of license agreements that complainants must file, and by amending paragraphs (c)(1), (d), (f), and (g), such that the submission of license agreements would be required only in those instances where
(i)the complainant relies upon its status as a licensee for purposes of standing or
(ii)the complainant relies upon the domestic activities of a licensee in support of its domestic industry contentions, and that in these instances, the license be submitted as an exhibit to the complaint (which would ultimately be served upon the respondents), rather than as an appendix item, and that all licensees of the asserted rights would also have to be identified in the complaint. The ITCTLA states that it supports the amendment of section 210.12(c)(1); the ITCTLA did not submit any comments with regard to sections 210.12(d), (f), and (g). AMS supports the proposed revisions. MOFCOM objects to the proposed amendment, arguing that respondents will typically ask for license agreements during discovery anyway. Because the license agreements may contain business information which is not essential to the allegations made against the respondents, the Commission has determined that the balance of interests favors waiting until identified respondents designate specific representatives to sign the administrative protective order before serving license agreements which are not essential to the understanding of the allegations made against them. Because the respondents will still receive the license agreements in discovery in a timely fashion, the Commission has determined to issue the rule unchanged from the proposed rule. Section 210.12(a)(9)(viii) The NOPR proposed to revise § 210.12(a) to require claim charts to be filed with the complaint to specify both allegations of infringement by any respondents and satisfaction of the domestic injury requirement by the complainant. The ITCTLA states that it supports the Commission's clarification that there should be a separate requirement for domestic industry claim charts and infringement claim charts. AMS supports the proposed revision. MOFCOM suggests that the Commission investigative attorney and the administrative law judges should “pre-review” complaints to make a “preliminary assessment of the scope of the claims” and to determine whether there is *prima facie* evidence of violation. The Commission agrees that clarification of the scope of the claims at an early stage of the investigation will foster earlier resolution of disputes. Therefore, the Commission has determined to require a separate claim chart to demonstrate the allegations of infringement by respondents with regard to each independent claim, rather than just one exemplary claim per asserted patent. The Commission believes that the rule would not add to the burden that the complainant must already undertake in order to fulfill its obligations to file a non-frivolous complaint under existing Commission Rules 210.4(c)-(d), 19 CFR 210.4(c)-(d), which are modeled in part on Rule 11 of the Federal Rules of Civil Procedure. *See, e.g.* , 59 FR 39023-25 (August 1, 1994). In addition, the Commission believes that this rule would help identify the issues at an early stage for all parties concerned, and foster early settlement or disposition of disputes. Subpart D—Motions Subpart H—Temporary Relief Subpart I—Enforcement Procedures and Advisory Opinions Sections 210.15, 210.20, 210.58, and 210.75 (The Position of Chief Administrative Law Judge) The NOPR proposed to amend §§ 210.15, 210.20(a), 210.58, and 210.75(b)(3) by eliminating reference to the chief administrative law judge. AMS does not support the proposed revision. The ITCTLA notes that, although there is not at present a chief administrative law judge, there may be a need or desire to designate a chief administrative law judge as the number of administrative law judges increases, and therefore the Commission may wish to retain this reference. The AIPLA has the same concerns as AMS and the ITCTLA, and notes that, in view of the growing caseload, the Commission has advertised a position for a fifth administrative law judge. The AIPLA observes that a chief administrative law judge could coordinate a reply from the administrative law judges to any suggestion posed to them. IPO suggests that a chief administrative law judge could increase the efficiency of the Commission and could aid in the training of new administrative law judges, could aid in consistent application of the Commission's rules, and could speak on behalf of the administrative law judges on matters such as requests for resources. AMS submits that the references to a chief administrative law judge do not cause harm or confusion even though there currently is no chief administrative law judge, and suggests that the rule should be maintained in order to provide the Commission flexibility to appoint a chief administrative law judge in the future. AMS notes that the Commission might find a chief administrative law judge to be a helpful representative for the administrative law judges to speak on their behalf on particular matters, receive suggestions or concerns, and possibly coordinate responsibility for certain matters relating to administrative law judges. The proposed amendments and revisions pertaining to eliminating the references to chief administrative law judge are withdrawn. Subpart E—Discovery and Compulsory Process Section 210.28 The NOPR proposed to amend § 210.28 to conform with the practice in the U.S. district courts under the Federal Rules of Civil Procedure whereby the stenographer is given the responsibility of serving copies of a deposition on all parties to the case. Under current Commission practice, the party taking the deposition is given this responsibility, and the only party currently required to be served with a copy is the Commission investigative attorney. AMS supports the proposed revision. MOFCOM comments that it is unclear under the proposed rule when a party will be notified that a transcript of a deposition is available, how a party can obtain a copy, and how much money the party should pay. No other specific comments were received. Because the rule charges the stenographic reporter with the distribution of the transcripts, and the concomitant responsibility of notifying the parties of the availability of the transcripts and their cost, the rule is unchanged. Subpart F—Prehearing Conferences and Hearings Section 210.39 The NOPR proposed to amend § 210.39(b) to require the filing of written notice with the Secretary whenever
(1)a section 337 party/civil action litigant asks the court to issue an order staying the civil action, and
(2)whenever the district court issues an order dissolving the stay and directing the Commission to transmit all or part of the record to the court. The proposed amendment requires that a party file written notice with the Commission on the same day that it asks the district court to stay the civil proceeding. The purpose of the proposed amendment is to clarify current Commission rule 210.39(b) and to make the rule more consistent with 28 U.S.C. 1659(b). The ITCTLA agrees with clarifying § 210.39(b) and making it consistent with 28 U.S.C. 1659(b), but suggests that a party be required to notify the Commission only if the district court issues a stay of its proceedings or dissolves such a stay, stating that it would not be necessary to notify the Commission of a motion for a stay because a motion could be withdrawn or superseded by other events. The ITCTLA suggests an amendment to require parties to notify the Commission within ten days of the issuance or dissolution of a stay by the district court. AMS supports the ITCTLA's proposed amendment. The ITCTLA suggestion would require the parties to notify the Commission only if there were an actual change in the status of the district court proceeding, and would clarify the time for parties to notify the Commission of the imposition of the stay or dissolution of the stay. Because the Commission finds this clarification to be beneficial, the commentator's suggestion is adopted in the rule. Sections 210.42, 210.43, and 210.51 (Setting Target Dates) The NOPR proposed to amend § 210.42(a)(1)(i) to provide that the administrative law judge would issue his final initial determination no later than four months before the target date for completion of the investigation, regardless of whether the target date has been set at over 15 months as the current rule provides. The NOPR proposed to amend §§ 210.42(h)(2) and 210.43(d)(1) to provide that the Commission will have two months to determine whether to review a final initial determination and two months for final disposition of the investigation in all investigations. The NOPR further proposed to amend § 210.51(a) by providing that if the target date set by order of the administrative law judge does not exceed 16 months from the date of institution, the order of the administrative law judge shall be final. The ITCTLA comments that it believes the proposed rule would create a default target date for completion of most investigations of 16 months. The ITCTLA contends that the proposed rule would be counter to the legislative history of the current statutory guidance on time for completion of investigations. The ITCTLA cites a **Federal Register** notice from twelve years ago, well before the current surge in filings, in which the Commission stated that target dates for completion of section 337 investigations should rarely exceed 15 months. 61 FR 43432 (Aug. 13, 1996). The ITCTLA comments that the role that the Commission has achieved in section 337 investigations as one of the key forums for protection of valuable U.S. intellectual property rights rests on the speed and high quality of its adjudicatory process. The ITCTLA suggests that rather than lengthening the target date for section 337 investigations, the Commission instead devote additional resources to meet the current deadlines. IPO comments that it believes the current rules are adequate to provide efficient resolution of section 337 proceedings while at the same time allowing for extensions of time when necessary. IPO adds that its members place much value in the Commission's prompt and effective resolution of section 337 investigations “particularly when compared to the pace of typical intellectual property disputes in the U.S. District Court system.” IPO comments that the proposed rule would turn the exception into the rule, contrary to the stated goal of efficiency. IPO expresses concern that the proposed rule would also open the door to further expansion of time limits in future, and hence would “proceed down a slippery slope.” IPO relies on section 337 and its legislative history. IPO suggests the hiring of additional administrative law judges and supports the filling of any vacant administrative law judge positions. AMS does not support the revision, contending that it would effectively lengthen the time for completion of these investigations by one month, and AMS believes the proposed revision runs counter to the goal expressed in section 337 and its legislative history to resolve investigations “at the earliest practicable time.” AMS understands that the increasing number and complexity of investigations have made it difficult to complete all investigations in 12 to 15 months but suggested that the Commission keep the current practice of granting itself additional time on a case-by-case basis. AIPLA's comments identify the same concerns as AMS, the ITCTLA, and IPO. The Commission believes that the proposal to allow the administrative law judge to set a target date of 16 months by order rather than by initial determination would not set 16 months as the default length for every case nor change the current length of investigations, but would merely allow the administrative law judge to set 16 months as a target date by order where necessary. The Commission acknowledges that there have been certain investigations recently which have exceeded 15 months due to such factors as stays pending other proceedings and reassignment of cases due to the retirement of an administrative law judge, as well as the resource constraints relative to the recent surge in caseload. The Commission has been working to hire additional administrative law judges and staff and intends to revisit this rule after additional personnel and resources have been made available to the Office of Administrative Law Judges, including the hiring of additional administrative law judges. The Commission notes that historically, the statute allowed 18 months for “more complicated” cases. “More complicated” referred to investigations “of an involved nature owing to the subject matter, difficulty in obtaining information, the large number of parties involved, or other significant factors.” 19 CFR 210.59(a) (1993). Typically these were investigations that required greater discovery because they
(1)included multiple patents (and claims),
(2)involved complex technology, and/or
(3)included multiple respondents. *See, e.g., Certain Static Random Access Memories and Integrated Circuits Devices Containing Same, Processes for Making Same, Components Thereof, and Products Containing Same,* Inv. No. 337-TA-325, Order No. 5, 1991 WL 788641 (May 9, 1991) (“The ITC, however, must adjudicate all four patents and do so in a fraction of the time which will be available in the District Court in Texas. An additional six months is, therefore, not only advisable but clearly essential. In sum, as with other Section 337 investigations involving semiconductors which have been designated as ‘complicated’ by the Commission, this case should also be designated ‘more complicated’ in order to develop an adequate record.”), *unreviewed* by Commission Notice, 56 FR 28173 (June 19, 1991). Historical practice shows that the “more complicated” designation was used only where necessary. *See Certain Integrated Circuit Telecommunication Chips and Products Containing Same, Including Dialing Apparatus,* Inv. No. 337-TA-337, Order No. 52, 1992 WL 811697 (Aug. 5, 1992) (recognizing that the Commission would not designate every case “more complicated”) (“The ‘more complicated’ designation should be used sparingly and only when clearly required.”), *unreviewed by* Commission Notice, 57 FR 40922 (Sept. 8, 1992). A majority of the cases filed today meet the criteria for “more complicated” case under former Commission rule § 210.59(a) (1993). We also note the importance of administrative judges allowing sufficient time for discovery. The amendment to allow investigation target dates to be set at 16 months by order was proposed in view of the proposed four-month period for the Commission to complete its review. However, nothing in the proposed rule mandates a 16-month target date in every case, and the Commission does not expect the judges to set a 16-month target date in every investigation. Moreover, the administrative law judges currently have authority to set target dates by initial determination longer than 15 months. Therefore, we do not expect that this change will increase the number of investigations with target dates longer than 15 months. The rule change, however, will streamline Commission practice by making it less likely that the Commission will need to extend its “whether to review” deadline. Moreover, the parties will have a more predictable date for responding to Commission requests for any briefing on review when the Commission deadline for determining whether to review a final ID is 60 days in every investigation. Therefore, the rule is unchanged from the proposed rule. Section 210.43(b)(1) The NOPR proposed to amend § 210.43(b)(1) to require that any petition for review exceeding 50 pages in length be accompanied by a summary not to exceed ten pages, that responses to petitions should similarly contain such summaries, and that there be a 100-page limit exclusive of the summaries for the length of petitions for review of final initial determinations on a matter other than temporary relief. The ITCTLA opposes the proposed rule because initial determinations and their associated findings of fact may themselves be hundreds of pages and hence would be hard to address in a 100-page petition for review. In this connection, the ITCTLA notes that the technology itself may be complex and difficult to address in 100 pages, and that under current § 210.43(b)(3), issues not addressed in a petition for review will be deemed waived. AIPLA makes similar observations and further notes that some investigations involve multiple parties, multiple patents, multiple claims and claim limitations, and contested issues of claim construction, validity, and infringement. AIPLA supports the proposal that a party must include a summary to provide an overview of longer petitions for review. AMS comments that it does not support the proposed rule because some complex investigations have initial determinations which would be too lengthy to address in a 100-page petition for review. AMS also notes that it would be necessary to address an issue to preserve it for an appeal to the Federal Circuit, as reflected in the proposed amendment to § 210.43(b)(3). MOFCOM also comments that it believes 100 pages are insufficient. The commentators' main concern is the need for the parties to preserve issues for appeal before the Commission and the U.S. Court of Appeals for the Federal Circuit. Yet the Federal Rules of Appellate Procedure, which apply to the Federal Circuit, limit principal briefs to 30 pages, 14,000 words, or 1,300 lines of text if monospaced. Rule 7(A), (B). Given the court's page limitations, the Commission believes it is reasonable to conclude that a 100-page petition for review could accommodate all issues which a party may wish to preserve for a possible appeal to the Federal Circuit. Moreover, the Commission believes that the page limits will increase the quality of analysis by encouraging the parties to focus on what they perceive to be reversible errors. Therefore, the rules are unchanged from the proposed rule. Subpart I—Enforcement Procedures and Advisory Opinions Section 210.71, 210.75, and 210.79 The NOPR proposed to amend § 210.71 and 210.79 and to further amend § 210.75 to clarify the procedures for the analysis of changed conditions, for the filing of enforcement proceedings, and for requests for advisory opinions. Specifically, the NOPR proposed to amend § 210.75 relating to enforcement of Commission orders to clarify that under section 337, the Commission may impose its own civil penalty which it may enforce in district court rather than having to have the district court impose the civil penalty in the first instance. MOFCOM comments that “it is confusing that the ITC, as an administrative authority, is permitted to initiate a civil action based on an administrative order.” Section 210.75 is based on the statutory authority granted by Congress to the Commission to bring civil actions in U.S. district court to enforce its orders and in aid of its jurisdiction under 19 U.S.C. 1333(c) and 1337(f)(2). The role of the courts in the enforcement of agency orders is important to agencies where necessary to ensure compliance with the administration of statutory schemes by agencies. AMS supports the revisions. No other comments were received. Therefore, the rules are unchanged. Other Suggestions MOFCOM also suggests that the Commission establish a procedure to suspend Commission investigations at the request of a respondent when the USPTO has instituted a reexamination proceeding of a patent at issue. MOFCOM further suggests that the Commission analyze the effect of recent jurisprudence in *eBay Inc* v. *MercExchange, L.L.C.* on the general exclusion order procedure. In addition, AIPLA suggests that the Commission promulgate a rule to govern the manner in which parties serve each other with documents electronically, whereas the Commission currently allows the parties to stipulate rules for electronic service among themselves. The Commission appreciates the suggestions for further areas of rulemaking. However, because these issues were not the subject of any proposed rule, they will not be addressed in this rulemaking. List of Subjects 19 CFR Part 201 Administration practice and procedure, Reporting and recordkeeping requirements. 19 CFR Part 210 Administration practice and procedure, Business and industry, Customs duties and inspection, Imports, Investigations. For the reasons stated in the preamble, 19 CFR parts 201 and 210 are amended as set forth below: PART 201—RULES OF GENERAL APPLICATION 1. The authority citation for part 201 continues to read as follows: Authority: Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335), and sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless otherwise noted. 2. Amend § 201.16 by redesignating paragraph
(e)as paragraph
(f)and adding new paragraph
(e)to read as follows: § 201.16 Service of process and other documents.
(e)*Additional time after service by overnight delivery.* Whenever a party or Federal Agency or department has the right or is required to perform some act or take some action within a prescribed period after the service of a document upon it and the document is served by overnight delivery, one
(1)day shall be added to the prescribed period. “Overnight delivery” is defined as delivery by the next business day. PART 210—ADJUDICATION AND ENFORCEMENT 1. The authority citation for part 210 continues to read as follows: Authority: 19 U.S.C. 1333, 1335, and 1337. Subpart A—Rules of General Applicability 2. Amend § 210.3 by adding a definition of “U.S. Customs Service” in alphabetical order to read as follows: § 210.3 Definitions. *U.S. Customs Service* means U.S. Customs and Border Protection. 3. Amend § 210.4 by revising paragraph (f)(1)(i) to read as follows: § 210.4 Written submission; representations; sanctions.
(f)*Specifications; filing of documents.* (1)(i) Written submissions that are addressed to the Commission during an investigation or a related proceeding shall comply with § 201.8 of this chapter, except for the provisions regarding the number of copies to be submitted. The required number of copies shall be governed by paragraph (f)(2) of this section. Written submissions may be produced by any process which produces a clear black image on white paper. Typed matter shall not exceed 6 1/2 by 9 1/2 inches using 11-point or larger type and shall be double-spaced between each line of text using the standard of 6 lines of type per inch. Text and footnotes shall be in the same size type. Quotations more than two lines long in the text or footnotes may be indented and single-spaced. Headings and footnotes may be single-spaced. 4. Amend § 210.7 by: a. Redesignating paragraph
(b)as paragraph (c); and b. Adding paragraphs (a)(3) and (b). The additions and revisions read as follows: § 210.7 Service of process and other documents; publication of notices.
(a)* * *
(3)Whenever the Commission effects service of documents issued by or on behalf of the Commission or the administrative law judge upon the private parties by overnight delivery, service upon the Office of Unfair Import Investigations shall also be deemed to have occurred by overnight delivery.
(b)*Designation of a single attorney or representative for service of process.* The service list prepared by the Secretary for each investigation will contain the name and address of no more than one attorney or other representative for each party to the investigation. In the event that two or more attorneys or other persons represent one party to the investigation, the party must select one of their number to be the lead attorney or representative for service of process. The lead attorney or representative for service of process shall state, at the time of the filing of its entry of appearance with the Secretary, that it has been so designated by the party it represents. (Only those persons authorized to receive confidential business information under a protective order issued pursuant to § 210.34(a) are eligible to be included on the service list for documents containing confidential business information.) Subpart B—Initiation and Conduct of Investigations 5. Amend § 210.8 by adding introductory text and revising paragraph
(a)to read as follows: § 210.8 Commencement of preinstitution proceedings. A preinstitution proceeding is commenced by filing with the Secretary a signed original complaint and the requisite number of true copies. (a)(1) *Unless complainant requests temporary relief, the complainant shall file with the Secretary:*
(i)Twelve
(12)copies of the nonconfidential version of the complaint along with 6 copies of the nonconfidential exhibits, and 6 copies of the confidential exhibits;
(ii)Twelve
(12)copies of the confidential version of the complaint, if any;
(iii)For each proposed respondent, one copy of the nonconfidential version of the complaint and one copy of the confidential version of the complaint, if any, along with one copy of the nonconfidential exhibits and one copy of the confidential exhibits, and
(iv)For the government of the foreign country in which each proposed respondent is located as indicated in the Complaint, one copy of the nonconfidential version of the complaint. Note to paragraph (a)(1): The same requirements apply for the filing of a supplement to the complaint.
(2)*If the complainant is seeking temporary relief, the complainant shall file with the Secretary:*
(i)Twelve
(12)copies of the nonconfidential version of the complaint along with 6 copies of the nonconfidential exhibits, and 6 copies of the confidential exhibits;
(ii)Twelve
(12)copies of the confidential version of the complaint, if any;
(iii)For each proposed respondent, one copy of the nonconfidential version of the complaint and one copy of the confidential version of the complaint, if any, along with one copy of the confidential exhibits;
(iv)Twelve
(12)copies of the nonconfidential version of the motion for temporary relief along with 6 copies of any nonconfidential exhibits filed with the motion and 6 copies of the confidential exhibits, if any, filed with the motion;
(v)Twelve
(12)copies of the confidential version of the motion for temporary relief, if any; and
(vi)For each proposed respondent, one copy of the confidential version of the motion along with one copy of the confidential exhibits filed with the motion. Note to paragraph (a)(2): The same requirements apply for the filing of a supplement to the complaint or a supplement to the motion for temporary relief. § 210.10 [Amended] 6. Amend § 210.10 by removing the last two sentences of paragraph (a)(5)(i). 7. Revise § 210.11 to read as follows: § 210.11 Service of complaint and notice of investigation. (a)(1) Unless the Commission institutes temporary relief proceedings, upon institution of an investigation, the Commission shall serve:
(i)Copies of the nonconfidential version of the complaint, the nonconfidential exhibits, and the notice of investigation upon each respondent; and
(ii)Copies of the nonconfidential version of the complaint and the notice of investigation upon the embassy in Washington, DC of the country in which each proposed respondent is located as indicated in the Complaint.
(2)If the Commission institutes temporary relief proceedings, upon institution of an investigation, the Commission shall serve:
(i)Copies of the nonconfidential version of the complaint and the notice of investigation upon each respondent; and
(ii)A copy of the notice of investigation upon the embassy in Washington, DC of the country in which each proposed respondent is located as indicated in the Complaint.
(3)All respondents named after an investigation has been instituted and the governments of the foreign countries in which they are located as indicated in the complaint shall be served as soon as possible after the respondents are named.
(4)The Commission shall serve copies of the notice of investigation upon the U.S. Department of Health and Human Services, the U.S. Department of Justice, the Federal Trade Commission, the U.S. Customs Service, and such other agencies and departments as the Commission considers appropriate.
(b)With leave from the presiding administrative law judge, a complainant may attempt to effect personal service of the complaint and notice of investigation upon a respondent, if the Secretary's efforts to serve the respondent have been unsuccessful. If the complainant succeeds in serving the respondent by personal service, the complainant must notify the administrative law judge and file proof of such service with the Secretary. Subpart C—Pleadings 8. Amend § 210.12 by: a. Republishing the introductory text of paragraph (a); b. Revising paragraphs (a)(1), (a)(6)(i) introductory text, (a)(6)(i)(C), and (a)(9); c. Redesignating paragraph (a)(10) as paragraph (a)(11); d. Adding new paragraph (a)(10); e. Revising paragraph (c); f. Revising the first sentence of paragraph (d); g. Revising paragraphs (f), and (g); h. Redesignating existing paragraph
(h)as paragraph (j); and i. Adding new paragraphs
(h)and (i). The additions and revisions read as follows: § 210.12 The complaint.
(a)*Contents of the complaint.* In addition to conforming with the requirements of § 201.8 of this chapter and §§ 210.4 and 210.5 of this part, the complaint shall—
(1)Be under oath and signed by the complainant or his duly authorized officer, attorney, or agent, with the name, address, and telephone number of the complainant and any such officer, attorney, or agent given on the first page of the complaint, and include a statement attesting to the representations in § 210.4(c)(1) through (3); (6)(i) If the complaint alleges a violation of section 337 based on infringement of a U.S. patent, or a federally registered copyright, trademark, mask work, or vessel hull design, under section 337(a)(1) (B), (C), (D), or
(E)of the Tariff Act of 1930, include a description of the relevant domestic industry as defined in section 337(a)(3) that allegedly exists or is in the process of being established, including the relevant operations of any licensees. Relevant information includes but is not limited to:
(C)Substantial investment in the exploitation of the subject patent, copyright, trademark, mask work, or vessel hull design, including engineering, research and development, or licensing; or
(9)Include, when a complaint is based upon the infringement of a valid and enforceable U.S. patent—
(i)The identification of each U.S. patent and a certified copy thereof (a legible copy of each such patent will suffice for each required copy of the complaint);
(ii)The identification of the ownership of each involved U.S. patent and a certified copy of each assignment of each such patent (a legible copy thereof will suffice for each required copy of the complaint);
(iii)The identification of each licensee under each involved U.S. patent;
(iv)A copy of each license agreement (if any) for each involved U.S. patent that complainant relies upon to establish its standing to bring the complaint or to support its contention that a domestic industry as defined in section 337(a)(3) exists or is in the process of being established as a result of the domestic activities of one or more licensees;
(v)When known, a list of each foreign patent, each foreign patent application (not already issued as a patent) and each foreign patent application that has been denied, abandoned or withdrawn corresponding to each involved U.S. patent, with an indication of the prosecution status of each such patent application;
(vi)A nontechnical description of the invention of each involved U.S. patent;
(vii)A reference to the specific claims in each involved U.S. patent that allegedly cover the article imported or sold by each person named as violating section 337 of the Tariff Act of 1930, or the process under which such article was produced;
(viii)A showing that each person named as violating section 337 of the Tariff Act of 1930 is importing or selling the article covered by, or produced under the involved process covered by, the above specific claims of each involved U.S. patent. The complainant shall make such showing by appropriate allegations, and when practicable, by a chart that applies each asserted independent claim of each involved U.S. patent to a representative involved article of each person named as violating section 337 of the Tariff Act or to the process under which such article was produced;
(ix)A showing that an industry in the United States, relating to the articles protected by the patent exists or is in the process of being established. The complainant shall make such showing by appropriate allegations, and when practicable, by a chart that applies an exemplary claim of each involved U.S. patent to a representative involved domestic article or to the process under which such article was produced; and
(x)Drawings, photographs, or other visual representations of both the involved domestic article or process and the involved article of each person named as violating section 337 of the Tariff Act of 1930, or of the process utilized in producing the imported article, and, when a chart is furnished under paragraphs (a)(9)(viii) and (a)(9)(ix) of this section, the parts of such drawings, photographs, or other visual representations should be labeled so that they can be read in conjunction with such chart; and
(10)Include, when a complaint is based upon the infringement of a federally registered copyright, trademark, mask work, or vessel hull design—
(i)The identification of each licensee under each involved copyright, trademark, mask work, and vessel hull design;
(ii)A copy of each license agreement (if any) that complainant relies upon to establish its standing to bring the complaint or to support its contention that a domestic industry as defined in section 337(a)(3) exists or is in the process of being established as a result of the domestic activities of one or more licensees.
(c)*Additional material to accompany each patent-based complaint.* There shall accompany the submission of the original of each complaint based upon the alleged unauthorized importation or sale of an article covered by, or produced under a process covered by, the claims of a valid U.S. patent the following:
(1)One certified copy of the U.S. Patent and Trademark Office prosecution history for each involved U.S. patent, plus three additional copies thereof; and
(2)Four copies of each patent and applicable pages of each technical reference mentioned in the prosecution history of each involved U.S. patent.
(d)*Additional material to accompany each registered trademark-based complaint.* There shall accompany the submission of the original of each complaint based upon the alleged unauthorized importation or sale of an article covered by a federally registered trademark, one certified copy of the Federal registration and three additional copies, and one certified copy of the prosecution history for each federally registered trademark. * * *
(f)*Additional material to accompany each copyright-based complaint.* There shall accompany the submission of the original of each complaint based upon the alleged unauthorized importation or sale of an article covered by a copyright one certified copy of the Federal registration and three additional copies;
(g)*Additional material to accompany each registered mask work-based complaint.* There shall accompany the submission of the original of each complaint based upon the alleged unauthorized importation or sale of a semiconductor chip in a manner that constitutes infringement of a Federally registered mask work, one certified copy of the Federal registration and three additional copies;
(h)*Additional material to accompany each vessel hull design-based complaint.* There shall accompany the submission of the original of each complaint based upon the alleged unauthorized importation or sale of an article covered by a vessel hull design, one certified copy of the Federal registration (including all deposited drawings, photographs, or other pictorial representations of the design), and three additional copies;
(i)*Initial disclosures.* Complainant shall serve on each respondent represented by counsel who has agreed to be bound by the terms of the protective order one copy of each document submitted with the complaint pursuant to § 210.12(c) through
(h)within five days of service of a notice of appearance and agreement to be bound by the terms of the protective order; and § 210.13 [Amended] 9. Amend § 210.13 by removing the words “U.S. letters patent” and adding in their place the words “U.S. patent” in the following locations: a. Paragraph
(b)introductory text, b. Paragraph 210.13(b)(1) (three occurrences), and c. Paragraph 210.13(b)(3). Subpart D—Motions 10. Amend § 210.18 by revising paragraph
(a)to read as follows: § 210.18 Summary determinations.
(a)*Motions for summary determinations.* Any party may move with any necessary supporting affidavits for a summary determination in its favor upon all or any part of the issues to be determined in the investigation. Counsel or other representatives in support of the complaint may so move at any time after 20 days following the date of service of the complaint and notice instituting the investigation. Any other party or a respondent may so move at any time after the date of publication of the notice of investigation in the **Federal Register** . Any such motion by any party in connection with the issue of permanent relief, however, must be filed at least 60 days before the date fixed for any hearing provided for in § 210.36(a)(1). Notwithstanding any other rule, the deadline for filing summary determinations shall be computed by counting backward at least 60 days including the first calendar day prior to the date the hearing is scheduled to commence. If the end of the 60 day period falls on a weekend or holiday, the period extends until the end of the next business day. Under exceptional circumstances and upon motion, the presiding administrative law judge may determine that good cause exists to permit a summary determination motion to be filed out of time. 11. Amend § 210.21 by revising: a. Paragraph (a); b. The last sentence of paragraphs (b)(2),
(c)introductory text, and (d); c. The third sentence of paragraph (c)(2)(ii); and d. Paragraph (e). The revisions read as follows: § 210.21 Termination of investigations.
(a)*Motions for termination.*
(1)Any party may move at any time prior to the issuance of an initial determination on violation of section 337 of the Tariff Act of 1930 to terminate an investigation in whole or in part as to any or all respondents, on the basis of withdrawal of the complaint or certain allegations contained therein, or for good cause other than the grounds listed in paragraph (a)(2) of this section. A motion for termination of an investigation based on withdrawal of the complaint shall contain a statement that there are no agreements, written or oral, express or implied between the parties concerning the subject matter of the investigation, or if there are any agreements concerning the subject matter of the investigation, all such agreements shall be identified, and if written, a copy shall be filed with the Commission along with the motion. If the agreement contains confidential business information within the meaning of § 201.6(a) of this chapter, at least one copy of the agreement with such information deleted shall accompany the motion, in addition to a copy of the confidential version. The presiding administrative law judge may grant the motion in an initial determination upon such terms and conditions as he deems proper.
(2)Any party may move at any time to terminate an investigation in whole or in part as to any or all respondents on the basis of a settlement, a licensing or other agreement, including an agreement to present the matter for arbitration, or a consent order, as provided in paragraphs (b),
(c)and
(d)of this section.
(b)*Termination by Settlement.* * * *
(2)* * * Termination by settlement need not constitute a determination as to violation of section 337 of the Tariff Act of 1930.
(c)*Termination by entry of consent order.* * * * Termination by consent order need not constitute a determination as to violation of section 337.
(2)* * *
(ii)* * * Termination by consent order need not constitute a determination as to violation of section 337. * * *
(d)*Termination based upon arbitration agreement.* * * * Termination based on an arbitration agreement does not constitute a determination as to violation of section 337 of the Tariff Act of 1930.
(e)*Effect of termination.* Termination issued by the administrative law judge shall constitute an initial determination. § 210.22 [Removed and Reserved] 12. Remove and reserve § 210.22. 13. Amend § 210.25 by revising the second sentence of paragraph
(f)to read as follows: § 210.25 Sanctions.
(f)* * * If the administrative law judge defers his adjudication in such a manner, his ruling on the motion for sanctions must be in the form of a recommended determination and shall be issued no later than 30 days after issuance of the Commission's final determination on violation of section 337 or termination of the investigation. * * * Subpart E—Discovery and Compulsory Process 14. Amend § 210.28 by revising the seventh and eighth sentences of paragraph (d), revising the first sentence of paragraph (g), and revising paragraph (i)(4) to read as follows: § 210.28 Depositions.
(d)*Taking of deposition.* * * * When a deposition is recorded by other than stenographic means and is thereafter transcribed, the person transcribing it shall certify that the person heard the witness sworn on the recording and that the transcript is a correct writing of the recording. Thereafter, upon payment of reasonable charges therefor, that person shall furnish a copy of the transcript or other recording of the deposition to any party or to the deponent. * * *
(g)*Admissibility of depositions.* The fact that a deposition is taken and served upon the Commission investigative attorney as provided in this section does not constitute a determination that it is admissible in evidence or that it may be used in the investigation. * * *
(i)* * *
(4)*As to completion and return of deposition.* Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, served, or otherwise dealt with by the person before whom it is taken are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. 15. Amend § 210.29 by revising the fourth sentence of paragraph (b)(2) to read as follows: § 210.29 Interrogatories.
(b)* * *
(2)* * * The party upon whom the interrogatories have been served shall serve a copy of the answers and objections, if any, within ten days of service of the interrogatories or within the time specified by the administrative law judge. * * * 16. Amend § 210.30 by revising the first sentence of paragraph (b)(2) to read as follows: § 210.30 Request for production of documents and things and entry upon land.
(b)* * *
(2)The party upon whom the request is served shall serve a written response within 10 days or the time specified by the administrative law judge. * * * 17. Amend § 210.31 by revising the second sentence of paragraph
(b)and the last sentence of paragraph
(d)to read as follows: § 210.31 Requests for admission.
(b)*Answers and objections to requests for admission.* * * * The matter may be deemed admitted unless, within 10 days or the period specified by the administrative law judge, the party to whom the request is directed serves upon the party requesting the admission a sworn written answer or objection addressed to the matter. * * *
(d)*Effect of admissions; withdrawal or amendment of admission.* * * * Any admission made by a party under this section is for the purpose of the pending investigation and any related proceeding as defined in § 210.3 of this chapter. 18. Amend § 210.32 by revising paragraph
(g)to read as follows: § 210.32 Subpoenas.
(g)*Obtaining judicial enforcement.* In order to obtain judicial enforcement of a subpoena issued under paragraphs (a)(3) or (c)(2) of this section, the administrative law judge shall certify to the Commission, on motion or sua sponte, a request for such enforcement. The request shall be accompanied by copies of relevant papers and a written report from the administrative law judge concerning the purpose, relevance, and reasonableness of the subpoena. If the request, relevant papers, or written report contain confidential business information, the administrative law judge shall certify nonconfidential copies along with the confidential versions. The Commission will subsequently issue a notice stating whether it has granted the request and authorized its Office of the General Counsel to seek such enforcement. 19. Amend § 210.34 by: a. Revising the section heading of section 210.34; b. Adding the designation “Note to paragraph (c):” to the undesignated text at the end of paragraph (c); c. Revising the newly designated note to paragraph (c); d. Revising paragraph (d); and e. Adding new paragraph (e). The additions and revisions read as follows: § 210.34 Protective orders; reporting requirement; sanctions and other actions.
(c)* * *
(5)* * * Note to paragraph (c): The issue of whether sanctions should be imposed may be raised on a motion by a party, the administrative law judge's own motion, or the Commission's own initiative in accordance with § 210.25(a)(2). Parties, including the party that identifies an alleged breach or makes a motion for sanctions, and the Commission shall treat the identity of the alleged breacher as confidential business information unless the Commission issues a public sanction. The identity of the alleged breacher means the name of any individual against whom allegations are made. The Commission or administrative law judge shall allow the parties to make written submissions and, if warranted, to present oral argument bearing on the issues of violation of a protective order and sanctions therefor. If before an administrative law judge, any determination on sanctions of the type enumerated in paragraphs (c)(1) through
(4)of this section shall be in the form of a recommended determination. When the motion is addressed to the administrative law judge, he shall grant or deny a motion for sanctions under paragraph (c)(5) of this section by issuing an order.
(d)*Reporting requirement.* Each person who is subject to a protective order issued pursuant to paragraph
(a)of this section shall report in writing to the Commission immediately upon learning that confidential business information disclosed to him or her pursuant to the protective order is the subject of:
(1)A subpoena;
(2)A court or an administrative order (other than an order of a court reviewing a Commission decision);
(3)A discovery request;
(4)An agreement; or
(5)Any other written request, if the request or order seeks disclosure, by him or any other person, of the subject confidential business information to a person who is not, or may not be, permitted access to that information pursuant to either a Commission protective order or § 210.5(b). Note to paragraph (d): This reporting requirement applies only to requests and orders for disclosure made for use of confidential business information in non-Commission proceedings.
(e)*Sanctions and other actions.* After providing notice and an opportunity to comment, the Commission may impose a sanction upon any person who willfully fails to comply with paragraph
(d)of this section, or it may take other action. Subpart F—Prehearing Conferences and Hearings 20. Amend § 210.35 by redesignating existing paragraphs (a)(2) through
(6)as (a)(3) through (7), respectively; and adding new paragraph (a)(2) to read as follows: § 210.35 Prehearing conferences.
(a)* * *
(2)Negotiation, compromise, or settlement of the case, in whole or in part; 21. Amend § 210.38 by revising paragraphs
(a)and
(d)to read as follows: § 210.38 Record.
(a)*Definition of the record.* The record shall consist of all pleadings, the notice of investigation, motions and responses, all briefs and written statements, and other documents and things properly filed with the Secretary, in addition to all orders, notices, and initial determinations of the administrative law judge, orders and notices of the Commission, hearing and conference transcripts, evidence admitted into the record (including physical exhibits), and any other items certified into the record by the administrative law judge or the Commission.
(d)*Certification of record.* The record, including all physical exhibits entered into evidence or such photographic reproductions thereof as the administrative law judge approves, shall be certified to the Commission by the administrative law judge upon his filing of an initial determination or at such earlier time as the Commission may order. 22. Amend § 210.39 by revising paragraph
(b)to read as follows: § 210.39 In camera treatment of confidential information.
(b)*Transmission of certain Commission records to district court.*
(1)In a civil action involving parties that are also parties to a proceeding before the Commission under section 337 of the Tariff Act of 1930, at the request of a party to a civil action that is also a respondent in the proceeding before the Commission, the district court may stay, until the determination of the Commission becomes final, proceedings in the civil action with respect to any claim that involves the same issues involved in the proceeding before the Commission under certain conditions. If such a stay is ordered by the district court, after the determination of the Commission becomes final and the stay is dissolved, the Commission shall certify to the district court such portions of the record of its proceeding as the district court may request. Notwithstanding paragraph
(a)of this section, the in camera record may be transmitted to a district court and be admissible in a civil action, subject to such protective order as the district court determines necessary, pursuant to 28 U.S.C. 1659.
(2)To facilitate timely compliance with any court order requiring the Commission to transmit all or part of the record of its section 337 proceedings to the court, as described in paragraph (b)(1) of this section, a party that requests the court to issue an order staying the civil action or an order dissolving the stay and directing the Commission to transmit all or part of the record to the court must file written notice of the issuance or dissolution of a stay with the Commission Secretary within 10 days of the issuance or dissolution of a stay by the district court. Subpart G—Determinations and Actions Taken 23. Amend § 210.42 by revising paragraphs (a)(1)(i), (a)(2), (h)(2), (h)(3), and (i), and adding paragraph (h)(6) to read as follows: § 210.42 Initial determinations. (a)(1)(i) *On issues concerning violation of section 337.* Unless otherwise ordered by the Commission, the administrative law judge shall certify the record to the Commission and shall file an initial determination on whether there is a violation of section 337 of the Tariff Act of 1930 no later than four
(4)months before the target date set pursuant to § 210.51(a).
(2)*On certain motions to declassify information.* The decision of the administrative law judge granting a motion to declassify information, in whole or in part, shall be in the form of an initial determination as provided in § 210.20(b).
(h)* * *
(2)An initial determination under § 210.42(a)(1)(i) shall become the determination of the Commission 60 days after the date of service of the initial determination, unless the Commission within 60 days after the date of such service shall have ordered review of the initial determination or certain issues therein or by order has changed the effective date of the initial determination. The findings and recommendations made by the administrative law judge in the recommended determination issued pursuant to § 210.42(a)(1)(ii) will be considered by the Commission in reaching determinations on remedy and bonding by the respondents pursuant to § 210.50(a).
(3)An initial determination filed pursuant to § 210.42(c) shall become the determination of the Commission 30 days after the date of service of the initial determination, except as provided for in paragraph (h)(5) and paragraph (h)(6) of this section, § 210.50(d)(3), and § 210.70(c), unless the Commission, within 30 days after the date of such service shall have ordered review of the initial determination or certain issues therein or by order has changed the effective date of the initial determination.
(6)The disposition of an initial determination filed pursuant to § 210.42(c) which grants a motion for summary determination that would terminate the investigation in its entirety if it were to become the Commission's final determination, shall become the final determination of the Commission 45 days after the date of service of the initial determination, unless the Commission has ordered review of the initial determination or certain issues therein, or by order has changed the effective date of the initial determination.
(i)*Notice of determination.* A notice stating that the Commission's decision on whether to review an initial determination will be issued by the Secretary and served on the parties. Notice of the Commission's decision will be published in the **Federal Register** if the decision results in termination of the investigation in its entirety, if the Commission deems publication of the notice to be appropriate under § 201.10 of subpart B of this part, or if publication of the notice is required under § 210.49(b) of this subpart or § 210.66(f) of subpart H of this part. 24. Amend § 210.43 by: a. Revising paragraph (a)(1); b. Adding the designation “Note to paragraph (b)(1):” to the undesignated text at the end of paragraph (b)(1); c. Revising the newly designated note to paragraph (b)(1); d. Adding a sentence to the end of paragraph (b)(3); e. Adding new paragraph (b)(5); and f. Revising paragraphs
(c)and (d)(1). The additions and revisions read as follows: § 210.43 Petitions for review of initial determinations on matters other than temporary relief.
(a)*Filing of the petition.*
(1)Except as provided in paragraph (a)(2) of this section, any party to an investigation may request Commission review of an initial determination issued under § 210.42(a)(1) or (c), § 210.50(d)(3) or § 210.70(c) by filing a petition with the Secretary. A petition for review of an initial determination issued under § 210.42(a)(1) must be filed within 12 days after service of the initial determination. A petition for review of an initial determination issued under § 210.42(c) that terminates the investigation in its entirety on summary determination must be filed within 10 business days after service of the initial determination. Petitions for review of all other initial determinations under § 210.42(c) must be filed within five
(5)business days after service of the initial determination. A petition for review of an initial determination issued under § 210.50(d)(3) or § 210.70(c) must be filed within 10 days after service of the initial determination.
(b)* * * Note to paragraph (b)(1): The petition for review must set forth a concise statement of the facts material to the consideration of the stated issues, and must present a concise argument providing the reasons that review by the Commission is necessary or appropriate to resolve an important issue of fact, law, or policy. If a petition filed under this paragraph exceeds 50 pages in length, it must be accompanied by a summary of the petition not to exceed ten pages. Petitions for review may not exceed 100 pages in length, exclusive of the summary and any exhibits.
(3)* * * In order to preserve an issue for review by the Commission or the U.S. Court of Appeals for the Federal Circuit that was decided adversely to a party, the issue must be raised in a petition for review, whether or not the Commission's determination on the ultimate issue, such as a violation of section 337, was decided adversely to the party.
(5)*Service of petition.* All petitions for review of an initial determination shall be served on the other parties by messenger, overnight delivery, or equivalent means.
(c)*Responses to the petition.* Any party may file a response within eight
(8)days after service of a petition of a final initial determination under § 210.42(a)(1), and within five
(5)business days after service of all other types of petitions, except that a party who has been found to be in default may not file a response to any issue as to which the party has defaulted. If a response to a petition for review filed under this paragraph exceeds 50 pages in length, it must be accompanied by a summary of the response not to exceed ten pages. Responses to petitions for review may not exceed 100 pages in length, exclusive of the summary and any exhibits.
(d)*Grant or denial of review.*
(1)The Commission shall decide whether to grant, in whole or in part, a petition for review of an initial determination filed pursuant to § 210.42(a)(1) within 60 days of the service of the initial determination on the parties, or by such other time as the Commission may order. The Commission shall decide whether to grant, in whole or in part, a petition for review of an initial determination filed pursuant to § 210.42(a)(2) or § 210.42(c), which grants a motion for summary determination that would terminate the investigation in its entirety if it becomes the final determination of the Commission, § 210.50(d)(3), or § 210.70(c) within 45 days after the service of the initial determination on the parties, or by such other time as the Commission may order. The Commission shall decide whether to grant, in whole or in part, a petition for review of an initial determination filed pursuant to § 210.42(c), except as noted above, within 30 days after the service of the initial determination on the parties, or by such other time as the Commission may order. 25. Amend § 210.45 by revising paragraph
(c)to read as follows: § 210.45 Review of initial determinations on matters other than temporary relief.
(c)*Determination on review.* On review, the Commission may affirm, reverse, modify, set aside or remand for further proceedings, in whole or in part, the initial determination of the administrative law judge. In addition, the Commission may take no position on specific issues or portions of the initial determination of the administrative law judge. The Commission also may make any findings or conclusions that in its judgment are proper based on the record in the proceeding. If the Commission's determination on review terminates the investigation in its entirety, a notice will be published in the **Federal Register** . 26. Amend § 210.49 by revising paragraph
(b)to read as follows: § 210.49 Implementation of Commission action.
(b)*Publication and transmittal to the President.* A Commission determination that there is a violation of section 337 of the Tariff Act of 1930 or that there is reason to believe that there is a violation, together with the action taken relative to such determination under § 210.50(a) or § 210.50(d) of this part, or the modification or rescission in whole or in part of an action taken under § 210.50(a), shall promptly be published in the **Federal Register** . It shall also be promptly transmitted to the President or an officer assigned the functions of the President under 19 U.S.C. 1337(j)(1)(B), 1337(j)(2), and 1337(j)(4), together with the record upon which the determination and the action are based. 27. Amend § 210.50 by revising paragraph (d)(1) to read as follows: § 210.50 Commission action, the public interest, and bonding by respondents.
(d)*Forfeiture or return of respondents' bonds.* (1)(i) If one or more respondents posts a bond pursuant to 19 U.S.C. 1337(e)(1) or 1337(j)(3), proceedings to determine whether a respondent's bond should be forfeited to a complainant in whole or part may be initiated upon the filing of a motion, addressed to the administrative law judge who last presided over the investigation, by a complainant within 90 days after the expiration of the period of Presidential review under 19 U.S.C. 1337(j). If that administrative law judge is no longer employed by the Commission, the motion shall be addressed to the Commission.
(ii)A respondent may file a motion addressed to the administrative law judge who last presided over the investigation for the return of its bond within 90 days after the expiration of the Presidential review period under 19 U.S.C. 1337(j). If that administrative law judge is no longer employed by the Commission, the motion shall be addressed to the Commission. § 210.51 [Amended] 28. Amend § 210.51(a) to remove all occurrences of the number “15” and add in its place the number “16”. Subpart H—Temporary Relief 29. Revise § 210.54 to read as follows: § 210.54 Service of motion by the complainant. Notwithstanding the provisions of § 210.11 regarding service of the complaint by the Commission upon institution of an investigation, on the day the complainant files a complaint with the Commission (see § 210.8(a)(1) and § 210.8(a)(2) of subpart B of this part), the complainant must serve non-confidential copies of both documents (as well as non-confidential copies of all materials or documents attached thereto) on all proposed respondents and on the embassy in Washington, DC of the country in which each proposed respondent is located as indicated in the Complaint. If a complainant files any supplemental information with the Commission prior to institution, nonconfidential copies of that supplemental information must be served on all proposed respondents and on the embassy in Washington, DC of the country in which each proposed respondent is located as indicated in the complaint. The complaint, motion, and supplemental information, if any, shall be served by messenger, overnight delivery, or equivalent means. A signed certificate of service must accompany the complaint and motion for temporary relief. If the certificate does not accompany the complaint and the motion, the Secretary shall not accept the complaint or the motion and shall promptly notify the submitter. Actual proof of service on each respondent and embassy (e.g., certified mail return receipts, messenger, or overnight delivery receipts, or other proof of delivery)—or proof of a serious but unsuccessful effort to make such service—must be filed within 10 days after the filing of the complaint and motion. If the requirements of this section are not satisfied, the Commission may extend its 35-day deadline under § 210.58 for determining whether to provisionally accept the motion for temporary relief and institute an investigation on the basis of the complaint. 30. Amend § 210.55 by revising paragraph
(b)to read as follows: § 210.55 Content of service copies.
(b)If the Commission determines that the complaint, motion for temporary relief, or any exhibits or attachments thereto contain excessive designations of confidentiality that are not warranted under § 201.6(a) of this chapter, the Commission may require the complainant to file and serve new non-confidential versions of the aforesaid submissions in accordance with § 210.54 and may determine that the 35-day period under § 210.58 for deciding whether to institute an investigation and to provisionally accept the motion for temporary relief for further processing shall begin to run anew from the date the new non-confidential versions are filed with the Commission and served on the proposed respondents in accordance with § 210.54. 31. Amend § 210.56 by: a. Revising the first paragraph and the first and second sentences of the fourth paragraph of the sample notice of paragraph (a); and b. Revising the second sentence of paragraph
(b)to read as follows: § 210.56 Notice accompanying service copies.
(a)* * * Notice is hereby given that the attached complaint and motion for temporary relief will be filed with the U.S. International Trade Commission in Washington, DC on ____, 20_. The filing of the complaint and motion will not institute an investigation on that date, however, nor will it begin the period for filing responses to the complaint and motion pursuant to 19 CFR 210.13 and 210.59. If the Commission determines to conduct an investigation of the complaint and motion for temporary relief, the investigation will be formally instituted on the date the Commission publishes a notice of investigation in the **Federal Register** pursuant to 19 CFR 210.10(b). If an investigation is instituted, copies of the complaint, the notice of investigation, and the Commission's Rules of Practice and Procedure (19 CFR Part 210) will be served on each respondent by the Commission pursuant to 19 CFR 210.11(a). * * *
(b)* * * The supplementary notice shall be served by messenger, overnight delivery, or equivalent means. * * * 32. Amend § 210.66 by revising the eighth sentence of paragraph
(c)to read as follows: § 210.66 Initial determination concerning temporary relief; Commission action thereon.
(c)* * * The parties shall serve their comments on other parties by messenger, overnight delivery, or equivalent means. 33. Amend § 210.67 by revising: a. The section heading; and b. Paragraph
(a)to read as follows: § 210.67 Remedy, the public interest, and bonding.
(a)While the motion for temporary relief is before the administrative law judge, he may compel discovery on matters relating to remedy, the public interest and bonding (as provided in § 210.61). The administrative law judge also is authorized to make findings pertaining to the public interest, as provided in § 210.66(a). Such findings may be superseded, however, by Commission findings on that issue as provided in paragraph
(c)of this section. Subpart I—Enforcement Procedures and Advisory Opinions § 210.70 [Transferred] 34. Transfer § 210.70 from subpart I to subpart H. 35. Amend § 210.71 by revising paragraph (a)(1) to read as follows: § 210.71 Information gathering.
(a)*Power to require information.*
(1)Whenever the Commission issues an exclusion order, the Commission may require any person to report facts available to that person that will help the Commission assist the U.S. Customs Service in determining whether and to what extent there is compliance with the order. Similarly, whenever the Commission issues a cease and desist order or a consent order, it may require any person to report facts available to that person that will aid the Commission in determining whether and to what extent there is compliance with the order or whether and to what extent the conditions that led to the order are changed. 36. Amend § 210.75 by revising paragraphs (b)(4)(ii), and
(c)to read as follows: § 210.75 Proceedings to enforce exclusion orders, cease and desist orders, consent orders, and other Commission orders.
(b)* * *
(4)* * *
(ii)Bring civil actions in a United States district court pursuant to paragraph
(c)of this section (and section 337(f)(2) of the Tariff Act of 1930) to recover for the United States the civil penalty accruing to the United States under that section for the breach of a cease and desist order or a consent order, and to obtain a mandatory injunction incorporating the relief the Commission deems appropriate for enforcement of the cease and desist order or consent order; or
(c)*Court enforcement.* To obtain judicial enforcement of an exclusion order, a cease and desist order, a consent order, or a sanctions order, the Commission may initiate a civil action in the U.S. district court. In a civil action under section 337(f)(2) of the Tariff Act of 1930, the Commission may seek to recover for the United States the civil penalty accruing to the United States under that section for the breach of a cease and desist order or a consent order, and may ask the court to issue a mandatory injunction incorporating the relief the Commission deems appropriate for enforcement of the cease and desist order or consent order. The Commission may initiate a proceeding to obtain judicial enforcement without any other type of proceeding otherwise available under section 337 or this subpart or without prior notice to any person, except as required by the court in which the civil action is initiated. 37. Amend § 210.79 by revising paragraph
(a)to read as follows: § 210.79 Advisory opinions.
(a)*Advisory opinions.* Upon request of any person, the Commission may, upon such investigation as it deems necessary, issue an advisory opinion as to whether any person's proposed course of action or conduct would violate a Commission exclusion order, cease and desist order, or consent order. The Commission will consider whether the issuance of such an advisory opinion would facilitate the enforcement of section 337 of the Tariff Act of 1930, would be in the public interest, and would benefit consumers and competitive conditions in the United States, and whether the person has a compelling business need for the advice and has framed his request as fully and accurately as possible. Advisory opinion proceedings are not subject to sections 554, 555, 556, 557, and 702 of title 5 of the United States Code. 38. Amend part 210 by adding Appendix A at the end of the part as follows: Appendix A to Part 210—Adjudication and Enforcement Initial determination concerning: Petitions for review due: Response to petitions due: Commission deadline for determining whether to review the initial determination: 1. Violation § 210.42(a)(1) 12 days from service of the initial determination 8 days from service of any petition 60 days from service of the initial determination. 2. Forfeiture of respondent's bond § 210.50(d)(3) 10 days from service of the initial determination 5 business days from service of any petition 45 days from service of the initial determination. 3. Forfeiture of complainant's temporary relief bond § 210.70(c) 10 days from service of the initial determination 5 business days from service of any petition 45 days from service of the initial determination. 4. Summary initial determination that would terminate the investigation if it became the Commission's final determination § 210.42(c) 10 days from service of the initial determination 5 business days from service of any petition 45 days from service of the initial determination. 5. Other matters § 210.42(c) 5 business days from service of the initial determination 5 business days from service of any petition 30 days from service of the initial determination on private parties. 6. Formal enforcement proceedings § 210.75(b) By order of the Commission By order of the Commission 90 days from service of the initial determination on private parties. By order of the Commission. Issued: June 26, 2008. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E8-14872 Filed 7-3-08; 8:45 am] BILLING CODE 7020-02-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2007-0183; FRL-8575-3] Approval and Promulgation of Air Quality Implementation Plans; Illinois; Revisions to Emission Reduction Market System AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: In 1997, Illinois adopted and submitted rules establishing a cap and trade program regulating emissions of volatile organic compounds (VOC). The program, known as the Emission Reduction Market System (ERMS), was designed to address VOC sources in the Chicago area with potential to emit at least 25 tons per year. Then, in 2004, the Chicago ozone nonattainment area was in effect reclassified from severe to moderate, which according to EPA guidance revised the applicable definition of major sources from 25 tons per year to 100 tons per year. This “reclassification” could have resulted in the program no longer including sources with potential to emit more than 25 but less than 100 tons per year. Instead, Illinois adopted rule revisions, submitted to EPA on January 10, 2007, which required that these sources remain part of the program. Illinois' rule revisions also addressed other potential ramifications of the “reclassification.” EPA is approving these rule revisions. DATES: This final rule is effective August 6, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2007-0183. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, i.e., 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 *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 Federal holidays. We recommend that you telephone John Summerhays, Environmental Scientist, at
(312)886-6067 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)886-6067, *summerhays.john@epa.gov* . SUPPLEMENTARY INFORMATION: This supplementary information section is arranged as follows: I. Description and Review of Illinois' Submittal II. What Action Is EPA Taking? III. Statutory and Executive Order Reviews I. Description and Review of Illinois' Submittal On January 10, 2007, Illinois submitted revisions to Part 205 of Title 35 of the Illinois Administrative Code, entitled “Emissions Reduction Market System” (ERMS). ERMS is a cap and trade program addressing VOC emissions in the Chicago area. Under ERMS, Illinois issues allowances equivalent to 12 percent less than baseline VOC emission levels, and requires affected sources to hold allowances equivalent to their VOC emissions during the ozone season. The program thereby requires overall VOC emission levels to be reduced to 12 percent below baseline levels. Illinois adopted the original rules for this program on November 20, 1997, and submitted the rules to EPA on December 16, 1997. EPA approved those rules on October 15, 2001, at 66 FR 52359. Part 205 requires participation of all major VOC sources in the Chicago area. More specifically, the version of Section 205.200 that Illinois adopted in 1997 stated that “The requirements of this Part shall apply to any source * * * located in the Chicago ozone nonattainment area that is required to obtain a [Title V permit], and [has VOC emissions during the ozone season of at least 10 tons].” The requirement for a Title V operating permit applies to major sources. Since the Chicago area at that time was classified as a severe ozone nonattainment area, major sources were defined to include sources with the potential to emit 25 tons per year or more of VOC. In 2004, EPA classified the Chicago ozone nonattainment area as moderate for the 8-hour ozone standard, and effective in 2005 rescinded the severe classification for the 1-hour ozone standard. The definition of major sources for moderate ozone nonattainment areas includes sources with the potential to emit 100 tons per year or more of VOC. According to EPA guidance (see 69 FR 23951, April 30, 2004), the replacement of the prior classification of severe with a classification of moderate thus meant that sources with potential to emit at least 25 tons per year but less that 100 tons per year of VOC would no longer be major sources and would no longer be required to have Title V operating permits. As a result, the sources in the Chicago area in this size range would no longer be subject to the ERMS requirements, given the applicability criteria in section 205.200 as quoted above. Illinois estimated that the loss of these intermediate sized sources from ERMS would result in a loss of 330 tons of VOC emission reduction per ozone season associated with these sources. Illinois sought to avoid this loss of sources from the program. Consequently, Illinois revised section 205.200 to redefine applicability to include sources with potential to emit at least 25 tons of VOC (and sources otherwise required to have a Title V permit) and at least 10 tons of VOC emissions during the ozone season. By this means, Illinois revised its applicability provisions to include the same set of sources as were included in 1997, notwithstanding the change in the classification of the Chicago ozone nonattainment area. Under the 1997 rules, since by definition all the affected sources had a Title V permit, Illinois used the Title V permits to establish several elements of the ERMS program. Most notably, Illinois used the source's Title V permit to specify the number of allowances to be issued to the source (Cf. section 205.315) and the source-specific VOC monitoring methods (Cf. section 205.330). Since (under EPA's guidance) sources with potential emissions between 25 and 100 tons per year were no longer subject to a requirement for a Title V permit, the State needed an alternative means of specifying source-specific ERMS provisions. Illinois therefore adopted section 205.316, to provide that sources included in ERMS but not required to obtain a Title V permit were required either to request a Title V permit anyway or to apply for a federally enforceable state operating permit (FESOP). The FESOP is to specify the provisions (relating for example to the number of allowances allocated to the source and the source-specific monitoring requirements) that would otherwise be specified in the Title V permit. Title V of the Clean Air Act provides for defining some operations with trivial or no emissions as insignificant activities. The 1997 version of section 205.220 of Illinois' rules exempts these activities from ERMS, based on the exemption under Title V. Illinois intended that these activities continue to be exempt from ERMS, irrespective of whether a source is subject to the requirement for a Title V permit. Therefore, Illinois revised Section 205.220 to provide that any activity meeting the criteria in Part 201 Subpart F of Title 35 of the Illinois Administrative Code for insignificant activities may be exempted from the ERMS program, whether the source is subject to a Title V permit or a FESOP. In ozone nonattainment areas classified as severe, major new sources and existing sources undergoing major modifications must obtain 1.3 tons of offsets for every ton of new emissions. In ozone nonattainment areas classified as moderate, major new sources and existing sources undergoing major modifications need only obtain 1.1 tons of offsets for every ton of new emissions. New source review rules require that any change in offset ratio applies only prospectively, to sources permitted after the change in ratio, and that a source permitted before the change in ratio must continue to have offsets in at least the ratio that applied at the time the source was permitted. Under section 205.150 of the 1997 ERMS rules, major new sources and sources undergoing major modifications were required to obtain 1.3 allowances for every ton of new emissions. Illinois' revised rules provide for modified ratios as the applicable ratios change. Section 205.150(f)(1) of the revised rules states: “If the nonattainment classification of the Chicago area for ozone is changed such that the required offset ratio is no longer 1.3 to 1 and a new offset ratio applies, as specified in 35 Ill. Adm. Code 203.302, that ratio shall then apply in lieu of the 1.3 to 1 ratio set forth in subsections (c)(2), (d)(1), and
(e)of this Section. Such new ratio shall not apply to any part of a source or any modification already subject to the 1.3 to 1 ratio or other previously effective offset ratio established prior to the effective date of the new ratio.” Section 205.150(f)(2) provides that the ratio becomes 1 to 1 if the Chicago area is redesignated to attainment. These revisions address the ramifications of a revised classification according to EPA guidance as cited above. However, while Illinois was adopting these rule revisions, EPA's ozone implementation guidance was being challenged in court. On December 22, 2006, with clarification on June 8, 2007, the Court of Appeals for the District of Columbia Circuit ruled against elements of EPA's ozone implementation guidance, including the “backsliding” inherent in allowing an area originally classified as severe and subsequently classified as moderate to apply the less stringent major source definition for moderate areas. *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d 882 (D.C. Cir. 2006). This court ruling has no effect on the approvability of Illinois' ERMS rule revisions. Illinois' revised ERMS rules assure the incorporation of all sources with potential to emit at least 25 tons of VOC per year (and at least 10 tons of VOC during the ozone season), irrespective of whether the major source definition for permitting purposes is 25 or 100 tons per year. Thus, Illinois' rules assure inclusion of a fixed set of sources, irrespective of the source size used in the definition of major sources. Illinois' revised ERMS rules also assure that any new source or major modification must obtain allowances such that the ratio of allowances to the quantity of new emissions matches the offset ratio that applies under the permitting requirements that are in effect at the time the new source or major modification is permitted. Illinois requested that EPA defer rulemaking on section 205.150(e). This section provides that new sources providing offsets by holding trading program allowances in the proper ratio need not also provide offsets in their new source permit. Illinois made a similar request for deferral of EPA rulemaking on this section in conjunction with its 1997 submittal of ERMS rules. While a new source may use a shutdown for both purposes, purchasing the necessary allowances from a shutdown source and simultaneously using the shutdown in the new source permit to satisfy offset requirements, the deferral of rulemaking provides that the two requirements must be met independently. Illinois made a corollary change, changing the term “Chicago ozone nonattainment area” to the term “Chicago area.” The term “Chicago area” is defined to mean the same area as the previous term “Chicago ozone nonattainment area,” but the revised term more clearly signifies that the program will remain in effect even if the Chicago area is redesignated as an attainment area. In addition to the rules identified above, Illinois made conforming revisions to multiple other rules. These revisions generally replace the term “Chicago nonattainment area” with the term “Chicago area” or mention FESOPs as a possible vehicle for specifying source-specific provisions to implement the ERMS rules. EPA finds these changes approvable. The change in the applicability provisions merely assures that the original program applicability criteria continue to apply, notwithstanding any change in the classification or designation of the area. The requirement for sources with potential emissions between 25 and 100 tons per year to obtain a permit (either a Title V permit or a FESOP) is a reasonable means of implementing the ERMS requirements at any time when these sources are not required to obtain a Title V permit. Illinois' provision for offset ratios, wherein new source emissions are offset at the ratio that reflects the offset ratio that is mandated at the time the permit authorizing the new source emissions is issued, properly matches offset requirements. The use of the term “Chicago area” also properly clarifies that the program continues even if the area is redesignated to attainment. EPA proposed to approve these rule revisions on January 30, 2008, at 73 FR 5471. On the same day, at 73 FR 5435, EPA also published a direct final rule approving these rule revisions. However, EPA then realized that the notice of direct final rulemaking, in comments on an EPA memorandum discussing the above court ruling, unintentionally commented on a national issue regarding ramifications of the court ruling. Therefore, EPA withdrew its direct final rule on February 29, 2008, at 73 FR 11042. Since the comments did not affect the underlying rationale for the proposed rule, i.e. because EPA proposed to find Illinois' revised ERMS rules to retain the same benefits without regard for what size is used to define major sources, EPA retained its proposed rule. EPA received no comments on this proposed rule. EPA continues to believe that Illinois' revised rules should be approved. II. What Action Is EPA Taking? EPA is approving Illinois' revisions to the ERMS program, except that EPA is deferring action on section 205.150(e). Illinois did not change every rule in Part 205. The State submitted only those rules that it changed. Thus, the revised rules being approved here must be viewed in conjunction with the unrevised rules approved at 40 CFR 52.720(c)(158). III. 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 September 5, 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, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: May 23, 2008. Bharat Mathur, 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 O—Illinois 2. Section 52.720 is amended by adding paragraph (c)(180) to read as follows: § 52.720 Identification of plan.
(c)* * *
(180)On January 10, 2007, Illinois submitted revisions to its rules for the Emission Reduction Market System. These revisions assure that sources in the Chicago area with potential emissions of VOC between 25 and 100 tons per year will remain subject to the program, irrespective of changes in the area's ozone nonattainment classification or designation and any associated changes in whether such sources are defined to be major sources. EPA is again deferring action on section 205.150(e).
(i)Incorporation by reference.
(A)Illinois Administrative Code, Title 35: Environmental Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control Board, Subchapter b: Alternative Reduction Program, Part 205 Emissions Reduction Market System, Sections: 205.120 Abbreviations and Acronyms 205.130 Definitions 205.150 Emissions Management Periods (except for 205.150(e)) 205.200 Participating Source 205.205 Exempt Source 205.210 New Participating Source 205.220 Insignificant Emission Units 205.300 Seasonal Emissions Component of the Annual Emissions Report 205.310 ERMS Applications 205.315 CAAPP Permits for ERMS Sources 205.316 Federally Enforceable State Operating Permits for ERMS Sources 205.318 Certification for Exempt CAAPP Sources 205.320 Baseline Emissions 205.330 Emissions Determination Methods 205.335 Sampling, Testing, Monitoring and Recordkeeping Practices 205.337 Changes in Emissions Determination Methods and Sampling, Testing, Monitoring and Recordkeeping Practices 205.400 Seasonal Emissions Allotment 205.405 Exclusions From Further Reductions 205.410 Participating Source Shutdowns 205.500 Emissions Reduction Generator 205.510 Inter-Sector Transaction 205.610 Application for Transaction Account 205.700 Compliance Accounting 205.730 Excursion Reporting 205.750 Emergency Conditions 205.760 Market System Review Procedures [FR Doc. E8-15153 Filed 7-3-08; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MM Docket No. 99-25; FCC 07-204] Creation of a Low Power Radio Service AGENCY: Federal Communications Commission. ACTION: Final rule; announcement of effective date. SUMMARY: In this document, the Commission announces that the Office of Management and Budget
(OMB)has approved, for a period of three years, the revised information collections associated with the *Creation of a Low Power Radio Service* . This notice is consistent with the Ordering Clause of the Report and Order published on January 17, 2008, which stated that changes to FCC Form 316, OMB Control Number 3060-0009, Application for Consent to Assignment of Broadcast Station Construction Permit or License or Transfer of Control of Corporation Holding Broadcast Station Construction Permit and FCC Form 318, OMB Control Number 3060-0920, Application for Construction Permit for a Low Power FM Broadcast Station will become effective 60 days after a notice is published in the **Federal Register** announcing OMB approval of the forms. DATES: FCC Forms 316 and 318 are effective September 5, 2008. FOR FURTHER INFORMATION CONTACT: Peter Doyle or Kelly Donohue, Audio Division, Media Bureau at
(202)418-2700. SUPPLEMENTARY INFORMATION: This document announces that, on June 23, 2008, OMB approved, for a period of three years, the revised information collection requirements resulting in changes to FCC Forms 316 and 318 contained in the Commission's Report and Order concerning the Creation of a Low Power Radio Service, FCC 07-204, published at 73 FR 3202, January 17, 2008. The OMB Control Numbers are 3060-0009 (FCC Form 316) and 3060-0920 (FCC Form 318), respectively. The Commission publishes this notice as an announcement of the effective date of the forms and announcement of OMB approval for the information collections. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please write to Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street, SW., Washington, DC 20554. Please include the OMB Control Numbers 3060-0009 and 3060-0920 in your correspondence. The Commission will also accept your comments via the Internet if you send them to *PRA@fcc.gov* . To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). Synopsis As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on June 23, 2008, for the revised information collection requirements resulting in changes to FCC Forms 316 and 318. The OMB Control Numbers assigned to the information collections are 3060-0009 and 3060-0920, respectively. For revisions to Form 316 (3060-0009), the total annual reporting burden for respondents for these collections of information, including the time for gathering and maintaining the collection of information, is estimated to be: 750 respondents, a total annual burden hours of 855 hours, and $425,150 in total annual costs. For revisions to Form 318 (3060-0920), the total annual reporting burden for respondents for these collections of information, including the time for gathering and maintaining the collection of information, is estimated to be: 16,659 respondents, a total annual burden hours of 34,396 hours, and $23,850 in total annual costs. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB Control Number. The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C. 3507. Federal Communications Commission. William F. Caton, Deputy Secretary. [FR Doc. E8-15307 Filed 7-3-08; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA-2008-0125] RIN 2127-AK14 Federal Motor Vehicle Safety Standards; Power-Operated Window, Partition, and Roof Panel Systems AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT. ACTION: Final rule; response to petitions for reconsideration. SUMMARY: This document responds to two petitions for reconsideration of a final rule amending the Federal motor vehicle safety standard for power-operated window, partition, and roof panel systems. The subject final rule, statutorily mandated and published in April 2006, established a new safety requirement for vehicle power window switches, specifically that such switches have a “pull-to-close” design. That final rule set a compliance date of October 1, 2008, which was the same as the compliance date for a rule published in September 2004 that amended the standard to include a performance test to prevent inadvertent actuation of power window switches, particularly by children. Petitions for reconsideration were submitted by the Alliance of Automobile Manufacturers (Alliance) and DaimlerChrysler Corporation. The petitioners requested an extension of the compliance date by two years, as well as additional amendments to the standard. This document grants the requests common to both petitions for an additional two years to comply with the pull-to-close operability requirements of the April 2006 rule. It denies petitioners' other requests. Specifically, we are denying the request that power window switches be excluded from the “pull-to-close” design requirement if the power window systems are equipped with an automatic reversal feature. We are also denying a request for exclusion from the pull-to-close requirement for switches mounted in overhead locations and switches that operate vent-type power windows. DATES: *Effective Date:* The amendments made in this final rule are effective September 5, 2008. *Compliance Date:* The requirements of the April 2006 final rule pertaining to “pull-to-close” operation of power window switches, as amended by today's rule, become mandatory for all vehicles subject to the standard manufactured on or after October 1, 2010. All other requirements, including the performance test for inadvertent actuation, continue to become mandatory for all vehicles subject to the standard that are manufactured on or after October 1, 2008. Voluntary early compliance is permitted. *Petitions for Reconsideration:* If you wish to submit a petition for reconsideration for this rule, your petition must be received by August 21, 2008. ADDRESSES: Petitions for reconsideration should refer to the docket number above and be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. See the SUPPLEMENTARY INFORMATION portion of this document (Section VI; *Rulemaking Analyses and Notice* ) for DOT's Privacy Act Statement regarding documents submitted to the agency's dockets. FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call Mr. Michael Pyne, Office of Crash Avoidance Standards (Phone: 202-366-4931; Fax: 202-366-7002). For legal issues, you may call Mr. Ari Scott, Office of the Chief Counsel (Phone: 202-366-2992; Fax: 202-366-3820). You may send mail to these officials at: National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background A. FMVSS No. 118 Requirements B. Recent Rulemaking Actions on Power Window Switches III. Petitions for Reconsideration IV. Discussion and Analysis A. Lead Time B. Overhead Power Window Switches C. Power Vent Windows D. Automatic Reversal-Equipped Windows V. Benefits and Costs VI. Rulemaking Analyses and Notices I. Executive Summary This document responds to two petitions for reconsideration of our April 12, 2006 final rule 1 amending Federal Motor Vehicle Safety Standard (FMVSS) No. 118, *Power-Operated Window, Partition, and Roof Panel Systems* . That final rule responded to an earlier round of petitions for reconsideration of our September 15, 2004 final rule amending FMVSS No. 118. 2 That rule amended the standard to require that switches for power windows and other power-operated items in new motor vehicles be resistant to accidental actuation that causes those items to begin to close. The amendment consisted of adding a new performance test for that purpose. 1 70 FR 18673 (Docket No. NHTSA-2006-24455-1). 2 69 FR 55517 (Docket No. NHTSA-2004-19032-1). While the April 2006 final rule made a number of technical amendments to Standard No. 118, the primary change effected by the April 2006 final rule was to implement a Congressional mandate in section 10308 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). 3 The mandate was to require power windows in vehicles not in excess of 10,000 pounds to have switches that close a window only when the switch is pulled up or out (“pull-to-close” switches), and it was identical to an issue raised in a petition for reconsideration of the September 2004 rule. Therefore, our implementation of the SAFETEA-LU mandate also addressed that petition. 3 Public Law 109-59, 119 Stat. 1144 (2005). Petitions for reconsideration of the April 2006 final rule were submitted by the Alliance of Automobile Manufacturers 4 and DaimlerChrysler Corporation. 5 The petitions requested additional amendments to Standard No. 118, as well as additional lead time for implementing the standard's pull-to-close power window switch requirements. 4 The May 30, 2006 petition for reconsideration was submitted by the Alliance of Automobile Manufacturers, an industry trade organization whose members include BMW Group, DaimlerChrysler, Ford Motor Company, General Motors, Mazda, Mitsubishi Motors, Porsche, Toyota, and Volkswagen. (Docket No. NHTSA-2006-24455-5.) 5 Docket No. NHTSA-2006-24455-4. The petitioners sought amendments to FMVSS No. 118 regarding certain issues either addressed in our April 2006 rulemaking or newly arising therefrom. Both petitioners requested an additional two years of lead time to comply with the final rule's requirement for power window switches to have pull-to-close operability. The petitioners argued that a substantial amount of time had elapsed between the September 2004 rule and the April 2006 amendment and that some manufacturers had initiated new switch designs on certain vehicle models that, although they would comply with the performance test in the 2004 rule, they might not comply with the newer pull-to-close requirement. The petitioners argued that manufacturers would have to start over on those redesigns, and would have insufficient time to achieve compliance for those models unless the compliance date was extended. The additional two years ( *i.e.* , until October 1, 2010) would provide approximately four years to comply with the pull-to-close requirement so that the total lead-time would be about equal to that originally provided for compliance with the September 2004 rule. The Alliance's petition also requested amendments concerning exclusion from the pull-to-close requirement for:
(1)Power window switches mounted on an overhead console, roof, or headliner;
(2)power window switches for side-hinged vent windows; and
(3)power windows equipped with automatic reversal capability complying with paragraph S5 of FMVSS No. 118. In its petition, DaimlerChrysler stated that it joined in the Alliance's petition and supports its requests, but the company made the following additional request. DaimlerChrysler asked that if the agency decides to grant the Alliance request for an exclusion from the pull-to-close requirement for power window systems equipped with S5-compliant automatic reversal capability, a similar exclusion should be extended to power windows with an automatic reversal feature meeting ECE R21, 6 “Uniform provisions concerning the approval of vehicles with regard to their interior fittings,” the standard commonly employed in Europe, specifically S5.8.3 of that standard. The petitioner reasoned that such an exclusion would be appropriate because the U.S. and European automatic reversal requirements are very similar and provide identical safety protection from window entrapment. 6 ECE R21 is a European safety standard that has automatic reversal specifications similar to, but not identical to, those contained in paragraph S5 of FMVSS No. 118. *See http://www.unece.org/trans/main/wp29/wp29regs/21rv2am2e.pdf* . In this document, we are granting in part and denying in part the Alliance and DaimlerChrysler petitions for reconsideration. The amendments we are adopting in response to the petitions for reconsideration of the April 12, 2006 final rule are as follows (additional detail and explanation are provided later in this document): • The agency is amending paragraph S2, *Application* , of Standard No. 118 to specify that vehicles subject to the requirements of the standard must comply with the pull-to-close switch operability requirement by October 1, 2010. This amendment will provide manufacturers with an additional two years of lead time, thereby providing relief for those manufacturers that had sought to meet the requirement of the September 2004 final rule by a means other than pull-to-close switches. It will also generally allow those manufacturers to comply with this additional requirement in the course of their normal vehicle redesign process, thereby keeping the costs associated with this rulemaking close to zero. However, we note that vehicle manufacturers must comply with all other requirements of the September 2004 and April 2006 final rules, including the inadvertent actuation performance test (“ball test”), by the original compliance date of October 1, 2008. • The agency is denying the requests for exclusions from the pull-to-close switch operability requirement for switches mounted overhead, switches for side-hinged vent windows, and switches for windows with automatic reversal capability. We note here that on February 28, 2008, the President signed a law that requires NHTSA to determine whether automatic reversal capability should be required for power windows. Thus, as part of that rulemaking activity, we will reexamine the safety implications of power windows with automatic reversal capability. However, the prospect of future rulemaking on automatic reversal has no impact on the decisions set forth in this notice regarding petitions for reconsideration of power window switch requirements. See section IV-D of this notice for further explanation. II. Background A. FMVSS No. 118 Requirements Federal Motor Vehicle Safety Standard (FMVSS) No. 118 specifies requirements for power-operated window, partition, and roof panel systems 7 in motor vehicles to minimize the risk of injury or death from their accidental operation. The standard applies to passenger cars, multipurpose passenger vehicles, and trucks with a gross vehicle weight rating of 4,536 kilograms (10,000 lbs.) or less. 7 The term “power window” is used in the preamble of this final rule to refer to power-operated windows, interior partitions, and roof panels, all of which are covered by FMVSS No. 118. Power roof panels and partitions are similar to power windows in their operation. However, any distinctions in applicability among the three types of systems will be delineated clearly in both the preamble and the amended regulatory text. The basic requirements of FMVSS No. 118 are enumerated in paragraph S4 of the standard. They include the fundamental requirement that power windows must not be operable unless the vehicle's ignition switch is in the “On,” “Start,” or “Accessory” position. In this way, the standard provides a simple means ( *i.e.* , ignition key removal) by which a vehicle's windows can be disabled and thus safeguarded from accidental closure. Paragraph S4 does specify a few exceptions where power windows may close without the vehicle's ignition being turned on (e.g., by use of a limited-range remote control), but each exception is specified in such a way that safety can still be assured. Paragraph S5 of FMVSS No. 118 allows an alternative means of compliance through the use of power window automatic reversal systems. If such a system is used in a vehicle and it meets the specified performance requirements of the standard, then the vehicle is not required to meet the window operating restrictions of paragraph S4. These systems prevent high closing forces which might injure or entrap a person caught in a closing window. Although a variety of current vehicles are equipped with automatic reversal capability on one or more of their windows, we are not aware of any systems that are certified as complying with paragraph S5 of FMVSS No. 118. Instead, all current vehicles are certified to paragraph S4, even if they are equipped with automatic reversal. B. Recent Rulemaking Actions on Power Window Switches NHTSA published a final rule on September 15, 2004, amending Standard No. 118 to add new safety requirements for switches used to operate power windows and sunroofs in vehicles covered by the standard. The following discussion summarizes the safety considerations which the agency sought to address. (For a more complete discussion, please consult the September 2004 final rule.) The September 2004 final rule responded to various petitions for rulemaking and addressed a small number of serious injuries and fatalities that had occurred involving power windows and sunroofs (this number varied from one to five per year, according to data at the time). It was apparent in most of those cases that an occupant, usually a child, became entrapped in a power window as a result of inadvertently pressing on a window switch while leaning out of a window opening. (As noted previously, FMVSS No. 118 requires that power windows must be disabled upon ignition key removal; thus, it is apparent that the key was in the ignition in each of those cases.) The power windows in those cases where serious injuries and fatalities occurred used switches of a “rocker” or “toggle” design 8 that lack protection from casual contact and thus are susceptible to inadvertent actuation. We concluded that such injuries could be prevented if power window switches were recessed or shrouded, or if a type of switch design referred to as a “pull-to-close” switch was used. 8 “Rocker” switches are designed to pivot on a center hinge, effectively operating like a “see-saw.” “Toggle” switches operate using small levers that push back and forth to open and close a window. As a result of their design, downward pressure (e.g., caused by a child kneeling or leaning) on a rocker or toggle switch could result in a window's either opening or closing, depending upon how such force is applied. In contrast, “pull-to-close” switches function such that pressing down on the switch will only cause the window to open, but the switch must be actively pulled up in order to close the window. Thus, accidental pressing with a hand, knee, or foot on a pull-to-close switch could not cause a window to close, although it might cause it to open. Instead of specifying particular design characteristics that would address the hazard, the September 2004 final rule instead established a performance test to be applied to power window switches in order to assure adequate protection from inadvertent actuation. In the specified performance test, a rigid spherical test device in the form of a metal ball is pressed against each power window switch with a certain amount of force to simulate a child kneeling on the switch. (This is commonly referred to as the “ball test”). A switch could pass the test only if applying the test device in this manner did not cause the power window controlled by the switch to begin to close. Power windows and sunroofs in vehicles meeting the ball test performance requirement would be able to resist inadvertent actuation of their power windows and sunroofs and would provide a measure of protection in the event children were left in a vehicle with the ignition turned on. Compliance with the September 2004 amendments to Standard No. 118 was required no later than October 1, 2008, generally coinciding with the start of the 2009 model year. This provided manufacturers approximately four years of lead-time to meet the new power window switch requirement. However, in April 2006, about 19 months after publishing that rule, in response to legislation enacted by Congress in August 2005, NHTSA again amended the standard, adding another new power window switch requirement in addition to the performance test established in the September 2004 rule. Section 10308 of the August 2005 congressional legislation, called SAFETEA-LU, contained the following mandate: The Secretary [of Transportation] shall upgrade Federal Motor Vehicle Safety Standard 118 to require that power windows in motor vehicles not in excess of 10,000 pounds have switches that raise the window only when the switch is pulled up or out. The Secretary shall issue a final rule implementing this section by April 1, 2007. This legislation required that all power window switches be of the pull-to-close variety, regardless of whether they met any performance test. At that time, the agency also had before it a petition for reconsideration of the September 2004 final rule submitted by a variety of organizations that advocate highway safety. 9 The petition included a request for a new power window switch requirement the same as the one contained in the legislative mandate. To implement section 10308 of SAFETEA-LU as quickly as possible, the agency decided to grant that aspect of the advocacy groups' petition for reconsideration, publishing a final rule to this effect on April 12, 2006. That final rule amended FMVSS No. 118 by adding section S6(c), implementing the restriction stipulated in SAFETEA-LU to allow only switches that operate by being “pulled up or out” for closing of power windows. It also maintained the ball test of the 2004 rule because we determined that the performance test was still relevant to ensure that all pull-to-close switches are resistant to inadvertent actuation. 9 This October 21, 2004 petition for reconsideration was filed by the following advocacy organizations: Advocates for Highway and Auto Safety (Advocates), KIDS AND CARS, The Zoie Foundation, the Trauma Foundation, Consumers for Auto Reliability and Safety, Consumer Federation of America, Consumers Union, Public Citizen, Kids In Cars, 4RKidsSake, and the Center for Auto Safety. (Docket No. NHTSA-2004-19032-3 and 4.) The April 2006 rule did not modify the deadline for compliance with the amended switch requirements, so the compliance date for both the “ball test” of the 2004 rule as well as the “pull-to-close” requirement was October 1, 2008. III. Petitions for Reconsideration NHTSA received two petitions for reconsideration submitted in response to our April 2006 final rule amending the switch-related provisions of FMVSS No. 118. One petition was submitted by the Alliance of Automobile Manufacturers, and the other was submitted by DaimlerChrysler Corporation. These petitions may be found in Docket No. NHTSA-2006-24455. As noted above, the petitioners requested further amendments to FMVSS No. 118 regarding certain issues either addressed in our April 2006 rulemaking or newly arising therefrom, including adequacy of the lead time for achieving compliance with the new requirements. Specifically, both petitioners requested additional time to comply with the final rule, citing the substantial amount of time that had elapsed between the September 2004 rule and the April 2006 amendment and the decision by at least some vehicle manufacturers to achieve compliance with the September 2004 final rule using shielded or recessed toggle switches instead of pull-to-close switch designs. The Alliance's petition also requested a number of additional amendments to the standard, including exclusion from the new pull-to-close operability requirements for the following:
(1)Switches mounted on an overhead console, roof, or headliner;
(2)switches for vent-type windows, and
(3)switches on systems which incorporate an automatic reversal feature that complies with the requirements of FMVSS No. 118. DaimlerChrysler's petition expressed support for the requests made in the Alliance's petition, but it further suggested that if an exclusion from the pull-to-close requirement was granted for switches incorporating an FMVSS No.118 type of automatic reversal feature, that exclusion should be extended to ECE R21-compliant automatic reversal systems as well. Further analysis of the issues raised in these petitions for reconsideration is provided in the following section of this document. IV. Discussion and Analysis A. Lead Time In adopting a performance test as part of FMVSS No. 118 to ensure resistance to inadvertent actuation of power window switches, our September 2004 final rule also amended paragraph S2, *Application,* providing that, “[t]his standard's requirements for actuation devices, as provided in S6, need not be met for vehicles manufactured before October 1, 2008.” Thus, that final rule accorded manufacturers slightly more than four years of lead time for compliance with the new “ball test” requirement. Subsequently, our April 2006 final rule responding to petitions for reconsideration of the September 2004 final rule further amended FMVSS No. 118 to implement the mandate in section 10308 of SAFETEA-LU, which directed NHTSA to require that power window switches have pull-to-close operability ( *see* S6(c)). In the preamble for the April 2006 final rule, we stated our belief that sufficient lead time still remained for manufacturers to meet this new requirement as part of their normal production processes. As a result, the agency did not change the mandatory compliance date of October 1, 2008. Our assumption that there still remained adequate lead time was supported by the fact that many vehicle makes and models at that time already had switches that were of the pull-to-close variety. Also, we thought it likely that manufacturers would choose a pull-to-close type of switch to meet the ball test requirement of the 2004 rule, and they would thus meet the 2006 requirement as well without the need for more lead time. The Alliance's petition confirmed that vehicle manufacturers had promptly commenced efforts to redesign power window switches to meet the September 2004 final rule, and that they were working to achieve compliance by the October 1, 2008 deadline. However, contrary to our assumption, it was apparent that some of these switch designs, on vehicles either in production or nearing production, utilized recessed or shielded toggle type switches, which were still a permissible option under the September 2004 final rule. In other words, as described by the petitioner, some companies had initiated new switch designs on certain vehicle models that would comply with the ball test of the 2004 rule, but the new designs were not of the pull-to-close variety, so they would not meet the pull-to-close requirement in the 2006 rule. Thus, according to the Alliance, those manufacturers would be compelled to “start over” on their designs, but would be left with insufficient time to undertake the necessary redesign and retooling unless the compliance date was extended. Accordingly, the Alliance's petition requested two additional years to comply with the April 2006 requirement ( *i.e.* , until October 1, 2010) so that the total lead time would be about equal to that originally provided for compliance with the 2004 rule. The DaimlerChrysler petition made similar arguments regarding the perceived inadequacy of the lead time for implementing the pull-to-close switch operability requirements for companies which had intended to comply with the September 2004 rule through some means other than pull-to-close switches. For example, DaimlerChrysler's petition stated that for about 20 percent of its fleet, the company intended to meet the requirements of the September 2004 final rule by equipping those vehicles with recessed switches in combination with ECE R21-compliant automatic reversal technology ( *e.g.,* the Maybach, certain Mercedes-Benz and Chrysler convertibles). Thus, the petitioner argued that the condensed timeframe for compliance with S6(c) represented a significant economic hardship and would result in compliance costs significantly higher than the de minimis costs estimated by the agency when there were four years of lead time to incorporate design changes as part of the manufacturers' routine production cycles. According to DaimlerChrysler, if the agency were to grant its request for an exclusion for vehicles equipped with ECE R21-compliant automatic reversal systems, no additional lead time would be required. Otherwise, DaimlerChrysler requested an additional two years of lead time for either:
(1)20 percent of its entire fleet, or
(2)specifically for the Maybach, three Mercedes-Benz convertible carlines, and one Chrysler Group convertible carline, specifically. The agency has carefully considered the arguments related to lead time raised by the petitioners. Because the October 1, 2008 compliance date in the September 2004 rule allowed manufacturers substantial time to comply ( *i.e.,* four years), and because the SAFETEA-LU legislation was enacted less than one year after the September 2004 rule was issued, the agency decided in the April 2006 final rule to retain that compliance date for the new requirement. Moreover, we noted that many popular vehicle models already were equipped with pull-to-close switches, and major vehicle manufacturers including Ford Motor Company
(Ford)and General Motors Corporation (General Motors) had informed NHTSA even prior to the September 2004 final rule that they were planning to install pull-to-close switches in most of their vehicles by the 2009 model year. Nevertheless, based on the information provided in the present Alliance and DaimlerChrysler petitions for reconsideration, it is evident that some manufacturers have been burdened by the shorter lead time allowed to meet the standard's new pull-to-close switch requirement. Since it was not the agency's intention to unduly restrict lead time (and thereby increase the cost of compliance), we have decided to grant the requested two-year extension of the compliance deadline for the pull-to-close switch requirement contained in section S6(c) of the safety standard. Therefore, we are amending S2, *Application,* to specify that manufacturers must meet the requirements of paragraph S6(c) of the standard for vehicles manufactured on or after October 1, 2010. In granting this request for additional lead time to meet the new pull-to-close switch operability requirement, we note that we are not extending the compliance date of the other aspects of either the September 2004 final rule or the April 2006 final rule; compliance with other provisions, particularly the “ball test,” is still required by no later than October 1, 2008. To further clarify, by that date, new vehicles will be required to meet the ball test unless they come within a specified exclusion ( *i.e.* , for overhead switches or switches with a S5-compliant automatic reversal system). In this way, manufacturers that had already begun a switch redesign process to meet the September 2004 rule, but pursued designs that would not meet the subsequent pull-up-to-close requirement, will be granted relief. We believe that those manufacturers legitimately need more time to undertake a second design iteration to meet the pull-to-close switch requirement of the April 2006 rule, particularly since their design efforts are likely to be focused on completing their ball test-compliant designs before the October 1, 2008 deadline. Manufacturers that have been or are now in the process of implementing pull-up switch designs to meet the September 2004 requirement (as well as manufacturers that already have pull-to-close switches in place) should not have difficulty meeting the October 1, 2008 compliance deadline. Furthermore, they will not have to be concerned with the October 1, 2010 compliance date for the new pull-to-close requirement since their switches will already meet it. Voluntary compliance is permitted immediately. In granting the petitioners' request for additional lead time but maintaining the original deadline for compliance with the ball test, NHTSA can continue to ensure that by October 1, 2008, all vehicles covered by Standard No. 118 will have power window switches safeguarded against inadvertent actuation at least to the level required under the September 2004 final rule, while providing manufacturers reasonable lead time to comply with the pull-to-close switch requirement. B. Overhead Power Window Switches Paragraph S6(c) of FMVSS No. 118 implemented the Congressional mandate for pull-to-close power window switches (which requires “switches that raise the window only when the switch is pulled up or out”) through the following requirement: Any actuation device for closing a power-operated window must operate by pulling away from the surface in the vehicle on which the device is mounted. An actuation device must operate only when pulled vertically up (if horizontally mounted), or out (if vertically mounted), or in a direction perpendicular to the surrounding surface if mounted in a sloped orientation, in order to cause the window to move in the closing direction.” Although S6(b) provided exclusion from the “ball test” for actuation devices mounted in a vehicle's roof, headliner, or overhead console, as well as switches linked to an automatic reversal system meeting the requirements of S5, the rule adopted in April 2006 did not contain any similar exclusion from the pull-to-close switch operability requirement. In its petition, the Alliance stated that S6(c) does not adequately address power-operated window switches that are mounted on an overhead console, vehicle roof, or headliner. It its petition, the Alliance stated: The one scenario the final rule does not provide clear design criteria for are power-operated window switches that are mounted on an overhead console, vehicle roof, or headliner. These switches are mounted on a horizontal surface, but on the bottom, not the top, of that surface. Because such switches are mounted on the *bottom* of a horizontal surface, rather than the top, the Alliance argued that it would be impractical to install pull-to-close switches in those locations. Accordingly, the Alliance requested that the standard be amended to exclude power window switches mounted in an overhead location, such as a console in the roof or headliner, from the pull-to-close requirements of S6(c). The petitioner also argued that overhead switches pose little accidental closure risk because of their location and orientation in the vehicle, and that overhead switches would be subject to the ball test if they permit closing through momentary or non-continuous switch actuation. DaimlerChrysler's petition agreed with these arguments in that it incorporated the Alliance's petition by reference, including its requested exclusion from the pull-to-close operability requirements for switches that are mounted on an overhead console, vehicle roof, or headliner. We generally agree that overhead switches are much less susceptible to being inadvertently operated because it would be difficult for occupants to lean on them and, consequently, the safety benefit that will accrues from requiring pull-to-close operability for window switches mounted in armrests, door panels, and other locations may or may not apply to switches mounted in overhead locations. This is why NHTSA chose to exclude most overhead switches from the ball test in the September 2004 final rule. However, we believe our discretion under section 10308 of SAFETEA-LU is very limited, and it does not provide for exclusions of overhead mounted switches from the pull-to-close design requirement. Therefore, we are denying the petitioner's request for exclusion of power window switches mounted on an overhead console, vehicle roof, or headliner from section S6(c) of FMVSS No. 118. Regarding the Alliance's concern relating to ambiguity in how overhead window switches are required to operate, we agree that the concept of an overhead switch that operates by pulling “up” does not make sense. But we do not agree that the Alliance's interpretation is necessarily correct. The April 2006 final rule states, “ *Any actuation device * * * must operate by pulling away from the surface in the vehicle on which the device is mounted* * * *.” By itself, this text makes it reasonably unambiguous that an overhead switch must operate by being pulled *downward* since that is the only direction that could practically be considered “away from” the roof on the inside of a vehicle. (Of course, this discussion is limited to window *closing* mode). In our opinion, there is not much ambiguity in this. However, the rule goes on to specify that a horizontally mounted switch “must operate only when pulled vertically up.” This appears to be the source of the ambiguity cited by the Alliance because overhead switches can be considered “horizontally mounted” even though they are actually upside-down relative to switches mounted on an armrest in a vehicle door. In order to resolve the ambiguity cited by the Alliance, we are amending the regulatory text of section S6(c) established in the April 2006 final rule to read as follows (added text highlighted in bold print): Any actuation device for closing a power-operated window must operate by pulling away from the surface in the vehicle on which the device is mounted. An actuation device for closing a power-operated window must operate when pulled vertically up **(if mounted on the top of a horizontal surface),** or out **(if mounted on a vertical surface), or down (if mounted on the underside of an overhead surface),** or in a direction perpendicular to the surrounding surface if mounted in a sloped orientation, in order to cause the window to move in the closing direction. In addition to removing the ambiguity with respect to operating characteristics of overhead power window switches, this amended text also further clarifies switch operability for horizontal and vertical mounting locations as well. This amendment, in specifying more clearly that overhead locations must use “pull-down” switches, continues to satisfy the statutory requirement of section 10308 of SAFETEA-LU, which specifies that switches must “pull up *or out* ” [emphasis added]. Because this modification of the regulatory text is relatively minor and does not change the requirements of the safety standard in any substantive manner, nor expands any costs or burdens associated with the safety standard, we believe that further notice and opportunity for comment regarding the above amended regulatory text is unnecessary. C. Power Vent Windows As discussed in section IV.B, above, the September 2004 and April 2006 final rules provided broad applicability for the standard's requirement for pull-to-close power window switch operability. There is currently no exclusion for side-hinged or “pop-out” style power vent windows, such as those used in the rear side windows of some minivans and SUVs. In its petition, the Alliance suggested that in passing section 10308 of SAFETEA-LU, Congress may not have intended for side-hinged power vent windows to be subject to the pull-to-close switch operability requirement. The Alliance reasoned that since Congress, in crafting the statutory language, expressly specified switches that “raise” power windows, it intended to cover only those windows that move up and down like conventional side-door windows. The petitioner argued that power vent windows are very different in that they hinge along one edge and open and close by swinging in and out by only a small distance (less than two inches) in order to provide ventilation, and they operate with less force, thereby making a severe injury or fatality due to inadvertent actuation of these windows unlikely. Accordingly, the Alliance requested that the agency amend Standard No. 118 to exclude side-hinged or pop-out vent windows from the pull-to-close operability requirement of S6(c). (As noted above, DaimlerChrysler's petition incorporated the Alliance's petition by reference, including the requested exclusion from the pull-to-close operability requirements for pop-out vent window switches.) We note that power vent windows were the subject of an earlier comment by the Alliance, as discussed in the preamble to the September 2004 final rule. Specifically, the Alliance had commented that there should be an exclusion from the “ball test” for certain switches, based upon the separation distance between the window and the window switch (making it impossible for a child to simultaneously lean on the switch and be in the path of the window). The preamble to the September 2004 final rule acknowledged vent windows as ones where there may be considerable distance separating the window and its control switch. 10 However, the agency declined to adopt the exclusion recommended by the Alliance, and the preamble does not discuss the different operating characteristics of vent windows, which is the particular issue raised by the Alliance in its current petition. 10 *See* 69 FR 55517, 55527 (Sept. 15, 2004) (Docket No. NHTSA-2004-19032-1). Although, as the Alliance points out, the mandate in section 10308 of SAFETEA-LU (quoted previously) states that it applies to window switches that “raise” a window, we interpret “raise” to generally mean the same thing as “close” when referring to windows in motor vehicles. For example, we note that expression “put the windows up” is commonly used to mean “close the windows,” even if the windows don't actually move “up” in order to close. We believe that the SAFETEA-LU mandate uses “raise” in this broader sense and merely reflects the most common type of window-closing motion. Moreover, the Alliance did not present any reason why it would be difficult (either technologically or economically) to provide pull-to-close switches for power vent windows. In addition, the Alliance petition assumes that vent windows have inherently less potential for inflicting injury because they hinge on one edge and the amount by which they can open is small compared to conventional side-door windows. The Alliance did not provide any further supporting information, such as measurements comparing the size of vent window openings to the size of a child's head or arm (children's fingers and hands undoubtedly could fit within the opening), or data on the closing force at points along the perimeter of vent windows compared to that of conventional side-door windows. As a result, we have no basis for determining whether vent windows do in fact have negligible injury potential. We are denying the petitioners' request for an exclusion for side-hinged or pop-out vent windows because:
(1)We believe the agency's mandate does not provide discretion to exclude any power window switches from the requirements of the statute;
(2)it is not clear that any safety risk associated with those windows is negligible, and
(3)the safety risk that does exist will be effectively addressed by the requirement for pull-to-close switch operability at minimal cost to manufacturers if given adequate lead time. Since manufacturers can apply the additional lead time granted by this notice (see IV.A, above) to making power vent window switches that are pull-to-close compliant, costs will be minimal. D. Automatic Reversal-Equipped Windows In its petition, the Alliance requested an exclusion from the standard's pull-to-close switch operability requirement for power windows equipped with an automatic reversal system meeting section S5 of FMVSS No. 118. That section of the standard contains a performance specification designed to minimize the squeezing force that a power window can exert on a person's body in the event someone becomes entrapped by a closing window. According to the Alliance, the pull-to-close switch requirement provides no additional safety benefit for vehicles equipped with this type of power window automatic reversal safety system, and it is therefore redundant and unnecessary. DaimlerChrysler's petition went somewhat further, stating that if NHTSA were to grant an exclusion for power windows having S5-compliant automatic reversal capability as the Alliance requested, the agency should extend that exclusion to power windows complying with a similar automatic reversal specification contained in a European safety standard. The petitioner stated that this European specification, specifically S5.8.3 of the ECE R21, provides an equivalent level of safety as compared to S5 of FMVSS No. 118. DaimlerChrysler acknowledged that there are slight differences between the two sets of automatic reversal requirements, but it argued that, fundamentally, they provide the same level of protection, as the maximum allowable squeezing force of 100 Newtons (about 22.5 lbs.) is identical under both standards. DaimlerChrysler stated that its Mercedes-Benz unit began production of vehicles equipped with ECE R21-compliant automatic power window reversal systems around 1990, and the feature has been standard on Mercedes-Benz vehicles sold in the U.S. since 1997. According to the petitioner, there have been over 1.8 million vehicles sold in the U.S. equipped with ECE-type automatic reversal, and that company stated that it has never been informed of an injury associated with the reaction time of those ECE-type systems. Accordingly, DaimlerChrysler argued that a requirement for pull-to-close switch operability for vehicles equipped with ECE R21-compliant automatic reversal capability would be redundant and unnecessary. As noted in section IV.B above, vehicle windows are broadly covered by the requirement for pull-to-close power window switches of the April 2006 final rule. There are currently no exclusions; all switches controlling power windows in vehicles covered by the standard must meet the “pull up or out” operability requirement. This is consistent with the fact that the SAFETEA-LU legislation broadly requires power windows to have pull-up or pull-out switches and does not stipulate any authority for NHTSA to make exclusions. We generally agree that switch design has less safety importance for power window systems incorporating automatic reversal capability because that feature accomplishes the desired safety purpose of protecting occupants from injury or entrapment and can safeguard occupants in a variety of situations, not just those involving inadvertent switch actuation. We used these rationales in excluding those switches from the ball test in the September 2004 final rule. However, when establishing the ball test in 2004, NHTSA was working under its usual Safety Act authority in rulemaking, and we chose to exercise discretion in allowing an exclusion from the ball test for windows having S5-compliant automatic reversal capability, as well as an exclusion for switches mounted in overhead locations. In the current situation, NHTSA acted in response to explicit direction from Congress. The statute does not provide specific authority for the agency to establish exclusions, and furthermore, there is no legislative history associated with SAFETEA-LU to suggest that NHTSA has discretion in implementing that legislation. We also note that the costs associated with the pull-to-close operability requirement are minimal, and such switches may provide a margin of safety by limiting the circumstances under which there would be a need to rely on automatic reversal capability. For these reasons, we have decided to deny both the Alliance's and DaimlerChrysler's requests for an exclusion from the pull-to-close switch operability requirement of S6(c) of the safety standard. Power windows equipped with automatic reversal capability are not excluded from the requirement to have pull-up-or pull-out window switches regardless of whether that capability complies with section S5 of FMVSS No. 118 or relevant sections of ECE-R21. On February 28, 2008, the President signed the Cameron Gulbransen Kids Transportation Safety Act of 2007. Section 2(a) of this law requires that within 18 months of enactment, NHTSA must “initiate a rulemaking to consider prescribing or amending Federal motor vehicle safety standards to require power windows and panels on motor vehicles to automatically reverse direction when such power windows and panels detect an obstruction to prevent children and others from being trapped, injured, or killed.” The new law does not influence our decision to deny petitioner's request for an exclusion from the pull-to-close requirement for switches used in automatic reversal-equipped power window systems. As we have already explained, the SAFETEA-LU statute did not allow for such an exclusion. The fact that the new Cameron Gulbransen Kids Transportation Safety Act of 2007 could result in an automatic reversal mandate does not affect the pull-to-close switch mandate. The new law might have an impact on applicability of the ball test because the 2004 rule which established that test specified that vehicles with Standard No. 118-compliant automatic reversal capability are excluded from it. However, this is not directly relevant to the current petitions for reconsideration, which are concerned only with the pull-to-close requirement, not the ball test, and our decision set forth in this notice to deny the requests related to automatic reversal is unaffected. V. Benefits and Costs Section XI of the September 2004 final rule summarized the benefits associated with our amendments to FMVSS No. 118 to require safer power window switches, and Section XII of that final rule described the associated costs. In summary, those sections of the final rule stated that based upon all available evidence, the agency expects that, on average, at least one child fatality and at least one serious injury ( *e.g.,* amputation, brain damage from near suffocation) per year could be prevented by the requirements of the final rule. As discussed in that final rule, we believe that this is a conservative estimate and that actual benefits are likely to be higher. In terms of costs, we stated in the September 2004 final rule that we expect that the new requirements will impose very little cost burden on vehicle manufacturers, particularly given the lead time provided ( *i.e.,* compliance date of October 1, 2008). In the April 12, 2006 final rule responding to petitions for reconsideration, we stated in Section VII that the technical changes arising from that rule (primarily changes in the mode of switch operation and/or in the shape of surrounding trim pieces) would not significantly affect the operation of power windows. We stated our expectation that the cost to manufacturers, was expected to be negligible, given that any necessary switch modifications would presumably be incorporated during the course of normal product design cycles. In terms of today's final rule responding to petitions for reconsideration, our decision to grant petitioners' requests for additional lead time to implement the standard's requirement for power window switches with pull-to-close operability again is intended to ensure that safer switch requirements are implemented as part of normal vehicle design cycles. The other change to the standard is for purposes of clarification and is not expected to have any measurable cost impact for manufacturers. Thus, the agency has determined that the amendments resulting from this final rule responding to petitions for reconsideration will not appreciably change the costs and benefits reported in the September 2004 final rule. In light of today's amendments, we continue to believe that there is adequate lead time to allow manufacturers to comply with the amended standard without appreciable cost. Accordingly, the agency has decided that the estimates in that document remain valid and that additional analysis is not required. VI. Rulemaking Analyses and Notice A. Executive Order 12866 and DOT Regulatory Policies and Procedures NHTSA has considered the impacts of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under E.O. 12866. Today's rule responding to petitions for reconsideration amends the agency's April 2006 final rule concerning switches for windows and other items, which itself amended the agency's September 2004 rule concerning these items. Today's rule provides two additional years of lead time for compliance with the April 2006 pull-to-close operability requirement for power window switches. It also makes a clarifying amendment. The rule does not impose new obligations on manufacturers. As we stated in the preamble to the April 2006 final rule, on average, we expect that the September 2004 final rule for safer power window switches will result in annual benefits that are expected to be a savings of one child's life and the avoidance of at least one serious injury, and the April 2006 final rule responding to petitions for reconsideration maintained that anticipated level of benefits. Today's final rule will also maintain the anticipated benefits of those rules, particularly given that the additional lead time provided will be limited only to the pull-to-close operability requirement for power window switches and not the inadvertent actuation performance test. Therefore, the impacts of these amendments are so minor that a full regulatory evaluation is not required. B. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.,* as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( *i.e.* , small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR Part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. NHTSA has considered the effects of this final rule under the Regulatory Flexibility Act. I certify that this final rule will not have a significant economic impact on a substantial number of small entities. The rationale for this certification is that the present final rule responding to petitions for reconsideration only provides additional lead time for the pull-to-close operability requirement and makes a minor clarifying amendment. D. Executive Order 13132 (Federalism) NHTSA has examined today's final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rule does not have federalism implications because the rule 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.” Further, no consultation is needed to discuss the preemptive effect of today's rule. NHTSA rules can have preemptive effect in at least two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemptive provision: “When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.” 49 U.S.C. 30103(b)(1). It is this statutory command that preempts State law, not today's rulemaking, so consultation would be inappropriate. In addition to the express preemption noted above, the Supreme Court has also recognized that State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of a NHTSA safety standard. When such a conflict is discerned, the Supremacy Clause of the Constitution makes their State requirements unenforceable. *See Geier* v. *American Honda Motor Co.,* 529 U.S. 861 (2000). NHTSA has not outlined such potential State requirements in today's rulemaking, however, in part because such conflicts can arise in varied contexts, but it is conceivable that such a conflict may become clear through subsequent experience with today's requirements. NHTSA may opine on such conflicts in the future, if warranted. *See id.* at 883-86. E. Executive Order 12988 (Civil Justice Reform) With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation:
(1)Clearly specifies the preemptive effect;
(2)clearly specifies the effect on existing Federal law or regulation;
(3)provides a clear legal standard for affected conduct, while promoting simplification and burden reduction;
(4)clearly specifies the retroactive effect, if any;
(5)adequately defines key terms; and
(7)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement. Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court. F. Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks) Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, April 23, 1997), applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental, health, or safety risk that the agency has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency. Although this final rule responding to petitions for reconsideration is part of a rulemaking expected to have a positive safety impact on children, it is not an economically significant regulatory action under Executive Order 12866. Consequently, no further analysis is required under Executive Order 13045. G. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. There is not any information collection requirement associated with this final rule. H. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272) directs the agency to evaluate and use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or is otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers. The NTTAA directs us to provide Congress (through OMB) with explanations when we decide not to use available and applicable voluntary consensus standards. The NTTAA does not apply to symbols. Currently, there are no voluntary consensus standards directly related to power-operated window switch design. However, NHTSA will consider any such standards as they become available. I. Unfunded Mandates Reform Act Section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA)requires federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the agency 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 the agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation of why that alternative was not adopted. This final rule responding to petitions for reconsideration will not result in the expenditure by State, local, or tribal governments or the private sector, in the aggregate, of more than $100 million annually. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA. J. National Environmental Policy Act NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment. K. Regulatory Identifier Number
(RIN)The Department of Transportation assigns a regulation identifier number
(RIN)to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda. L. Privacy Act Anyone is able to 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 DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://www.regulations.gov.* List of Subjects in 49 CFR Parts 571 Motor vehicle safety, Reporting and recordkeeping requirements, Tires. In consideration of the foregoing, NHTSA is amending 49 CFR part 571 as follows: PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS 1. The authority citation for part 571 of Title 49 continues to read as follows: Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50. 2. Section 571.118 is amended by revising S2 and S6(c) to read as follows: § 571.118 Standard No. 118; Power-operated window, partition, and roof panel systems. S2. *Application.* This standard applies to passenger cars, multipurpose passenger vehicles, and trucks with a gross vehicle weight rating of 4,536 kilograms or less. This standard's inadvertent actuation performance requirements of S6(a) need not be met for vehicles manufactured before October 1, 2008. The standard's pull-to-close switch operability requirements of S6(c) need not be met for vehicles manufactured before October 1, 2010. S6. * * *
(c)Any actuation device for closing a power-operated window must operate by pulling away from the surface in the vehicle on which the device is mounted. An actuation device for closing a power-operated window must operate only when pulled vertically up (if mounted on the top of a horizontal surface), or out (if mounted on a vertical surface), or down (if mounted on the underside of an overhead surface), or in a direction perpendicular to the surrounding surface if mounted in a sloped orientation, in order to cause the window to move in the closing direction. Issued: July 1, 2008. Nicole R. Nason, Administrator. [FR Doc. E8-15310 Filed 7-3-08; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No 080630803-8805-01] RIN 0648-AW99 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Expansion of Emergency Fishery Closure Due to the Presence of the Toxin that Causes Paralytic Shellfish Poisoning AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; emergency action; expansion of effective area; request for comments. SUMMARY: This action expands an area currently closed to the harvest of bivalve shellfish, except for sea scallop adductor muscles harvested and shucked at sea, identified in a temporary final rule initially published on October 18, 2005. The regulations contained in the temporary rule, emergency action, published on October 18, 2005, and subsequently extended several times at the request of the U.S. Food and Drug Administration (FDA), were effective through December 31, 2008. This temporary rule supersedes the previous rule. This rule will expire on December 29, 2008. This temporary rule expands the closure area of Federal waters previously closed since the original emergency closure. The FDA has determined that current oceanographic conditions and alga sampling data warrant expanding the Northern Temporary Paralytic Shellfish Poison
(PSP)Closure Area to encompass the current closure area and an adjacent area in the Federal waters southeast of Massachusetts around Nantucket Island and eastward to the George's Bank PSP Closure Area. This expanded area is closed to the harvest of bivalve molluscan shellfish, except for sea scallop adductor muscles harvested and shucked at sea. The remaining segment of the Southern Temporary PSP Closure Area continues to be closed to the harvest of whole or roe-on scallops only. DATES: Effective from July 2, 2008 to December 29, 2008. Comments must be received by August 6, 2008. ADDRESSES: Copies of the Small Entity Compliance Guide, the emergency rule, the Environmental Assessment, and the Regulatory Impact Review prepared for the October 18, 2005, reinstatement of the September 9, 2005, emergency action and subsequent extensions of the emergency action, are available from Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. These documents are also available via the internet at *http://www.nero.noaa.gov/nero/hotnews/redtide/index.html.* You may submit comments, identified by RIN 0468-AW99, by any one of the following methods: • Mail: Patricia A. Kurkul, Regional Administrator, Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298. Mark on the outside of the envelope, “Comments on PSP Closure.” • Fax:
(978)281-9135. • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* . Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Edward Stern, Fishery Management Specialist, phone:
(978)281-9177, fax:
(978)281-9135. SUPPLEMENTARY INFORMATION: Background On June 10, 2005, the FDA requested that NMFS close an area of Federal waters off the coasts of New Hampshire and Massachusetts to fishing for bivalve shellfish intended for human consumption. On June 16, 2005, NMFS published an emergency rule (70 FR 35047) closing the area recommended by the FDA (i.e., the Temporary PSP Closure Area), through September 30, 2005. On July 7, 2005 (70 FR 39192), the emergency rule was modified to facilitate the testing of shellfish for the toxin that causes PSP by the FDA and/or FDA-approved laboratories by incorporating a provision that allowed for the issuance of a Letter of Authorization
(LOA)from the NMFS Regional Administrator. On September 9, 2005 (70 FR 53580), the emergency regulation was once again modified by a provision that divided the Temporary PSP Closure Area into northern and southern components. The Northern Temporary PSP Closure Area remained closed to the harvest of all bivalve molluscan shellfish, while the Southern Temporary PSP Closure Area was reopened to the harvest of Atlantic surfclams, ocean quahogs, and sea scallop adductor muscles harvested and shucked at sea. The rule was extended as published on September 9, 2005, on October 3, 2005 (70 FR 57517); reinstated on October 18, 2005, (70 FR 60450) to correct a technical error; extended on December 28, 2005 (70 FR 76713); and subsequently on June 30, 2006 (71 FR 37505); January 4, 2007 (72 FR 291); June 27, 2007 (72 FR 35200); and December 31, 2007 (72 FR 74207). On May 18, 2007, the FDA indicated that it could not support the re-opening of the Northern Temporary PSP Closure Area due to insufficient analytical data from the area, and recommended the area remain closed indefinitely. Provisions Implemented under this Emergency Rule On June 25, 2008, NMFS received a request from the FDA to revise and expand the Northern Temporary PSP Closure Area after samples of shellfish from the inshore and offshore waters off of the coast of Massachusetts tested positive for the toxins (saxotoxins) that cause PSP. These toxins are produced by the alga *Alexandrium fundyense* , which can form blooms commonly referred to as red tides. Oceanographic conditions and alga sampling data warrant revising and expanding the Northern Temporary PSP Closure Area to encompass the current closure area and an adjacent area in the Federal waters southeast of Massachusetts around Nantucket Island, and eastward to the George's Bank PSP Closure Area. Red tide blooms, also known as harmful algal blooms (HABs), can produce toxins that accumulate in filter-feeding shellfish. Shellfish contaminated with the toxin, if eaten in large enough quantity, can cause illness or death from PSP. Based on the information provided by the FDA, the National Marine Fisheries Service implements this emergency rule to revise and expand the Northern Temporary PSP Closure Area to include Federal waters southeast of Massachusetts surrounding Nantucket Island, and eastward to the current Georges Bank PSP Closure Area, bound by the coordinates specified in Table 1, below. The boundaries of the original Northern Temporary PSP Closure area and the December 31, 2008 expiration date for this area, which was established in the emergency rule published on December 31, 2007 (72 FR 74207), is superseded by this emergency rule. The revised and expanded Northern Temporary PSP Closure Area is closed to the harvest of Atlantic surfclams, ocean quahogs, and whole or roe-on scallops until December 29, 2008. Table 1: Coordinates for the Expanded Northern Temporary PSP Closure Area. Point Latitude Longitude 1 43°00′N 71° 00′ W 2 43°00′N 69° 00′ W 3 41°00′N 69° 00′ W 4 41°00′N 70° 30′ W 5 41°39′N 70° 30′ W 6 41°39′N 71° 00′ W 7 43°00′N 71° 00′ W The remaining section of the Southern Temporary PSP Closure Area remains open to the harvest of bivalve molluscan shellfish, except for whole or roe-on scallops. The boundaries of the Southern Temporary PSP Closure Area comprise Federal waters bound by the coordinates specified in Table 2, below. Under this emergency rule, the remaining segment of the Southern Temporary PSP Closure Area remains closed only to the harvest of whole or roe-on scallops. Table 2: Coordinates for the Southern Temporary PSP Closure Area Point Latitude Longitude 1 41°39′N 71° 00′ W 2 41°39′N 70° 30′ W 3 41°00′N 70° 30′ W 4 41°00′N 69° 00′ W 5 40°00′N 69° 00′ W 6 40°00′N 71° 00′ W 7 41°39′N 71° 00′ W Classification This action is issued pursuant to section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1855(c). Pursuant to section 5 U.S.C. 553(b)(B) of the Administrative Procedure Act, the Assistant Administrator for Fisheries finds there is good cause to waive prior notice and an opportunity for public comment on this action as notice and comment would be impracticable and contrary to the public interest due to a public health emergency. Without the immediate implementation of this emergency rule, the public health would be in danger of illness or death from contaminated shellfish harvested in the revised and expanded Northern Temporary PSP Closure Area. In addition, under section 553(d)(3) there is good cause to waive the 30-day delay in effectiveness due to a public health emergency. Toxic algal blooms are responsible for the marine toxin that causes PSP in persons consuming affected shellfish. In the past, people have become seriously ill and some have died from consuming contaminated shellfish. It is necessary to waive the 30-day delay in effectiveness to prevent the harvest of contaminated shellfish to ensure the protection of public health. This emergency rule will expire December 29, 2008, prompting a review of the closure by NMFS and FDA. Pursuant to section 305(c)(3)(C) of the Magnuson-Stevens Act, this emergency action may remain effective through subsequent renewal and publication in the **Federal Register** until the circumstances that created the emergency no longer exist, provided the public has had an opportunity to comment after the regulation was published, and, in this case of a public health emergency, the Secretary of Health and Human Services concurs with the Commerce Secretary's action. Data used to make determinations regarding closing and opening of areas to certain types of fishing activity are collected from Federal, state, and private laboratories. NOAA maintains a Red Tide Information Center ( *http://www.cop.noaa.gov/news/fs/ne_hab_200605.html* ), which can be accessed directly or through the website listed in the ADDRESSES section. Information on test results, modeling of algal bloom movement, and general background on red tide can be accessed through this information center. While NMFS is the agency with the authority to promulgate the emergency regulations, it modified the regulations on September 9, 2005, at the request of the FDA, after the FDA determined that the results of its tests warranted such action. This modification is also at the request of the FDA. If necessary, the regulations may be terminated at an earlier date, pursuant to section 305(c)(3)(D) of the Magnuson-Stevens Act, by publication in the **Federal Register** of a notice of termination, or extended further to ensure the safety of human health. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are not applicable. This rule is not significant for the purposes of Executive Order 12866. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: July 1, 2008. James W. Balsiger, Acting Assistant Administrator For Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 648.14, paragraphs (a)(170) and (a)(171) are suspended and paragraphs (a)(181) and (a)(182) are added to read as follows: § 648.14 Prohibitions.
(a)* * *
(181)Fish for, harvest, catch, possess or attempt to fish for, harvest, catch, or possess any bivalve shellfish, including Atlantic surfclams, ocean quahogs, and mussels, with the exception of sea scallops harvested only for adductor muscles and shucked at sea, or a vessel issued and possessing on board a Letter of Authorization
(LOA)from the Regional Administrator authorizing the collection of shellfish for biological sampling and operating under the terms and conditions of said LOA, in the area of the U.S. Exclusive Economic Zone bound by the following coordinates in the order stated:
(i)43°00′N. lat., 71°00′W. long.;
(ii)43°00′N. lat., 69°00′W. long.;
(iii)41°00′N. lat., 69°00′W. long.;
(iv)41°00′N. lat., 70°30′W. long.;
(v)41°39′N. lat., 70°30′W. long.;
(vi)41°39′N. lat., 71°00′W. long.; and then ending at the first point.
(182)Fish for, harvest, catch, possess, or attempt to fish for, harvest, catch, or possess any sea scallops, except for sea scallops harvested only for adductor muscles and shucked at sea, or a vessel issued and possessing on board a Letter of Authorization
(LOA)from the Regional Administrator authorizing collection of shellfish for biological sampling and operating under the terms and conditions of said LOA, in the area of the U.S. Exclusive Economic Zone bound by the following coordinates in the order stated:
(i)41°39′N. lat., 71°00′W. long.;
(ii)41°39′N. lat., 70°30′W. long.;
(iii)41°00′N. lat., 70°30′W. long.;
(iv)41°00′N. lat., 69°00′W. long.;
(v)40°00′N. lat., 69°00′W. long.;
(vi)40°00′N. lat., 71°00′W. long.; and then ending at the first point. [FR Doc. 08-1412 Filed 7-2-08; 8:46 am]
Connectionstraces to 37
Traces to 37 documents
register
CFR
- What size standards has SBA identified by North American Industry Classification System codes?§ 121.201
- May I address the unsafe condition in a way other than that set out in the airworthiness directive?§ 39.19
- Applicability.§ 71.1
- Service of process and other documents.§ 201.16
- Written submissions; representations; sanctions.§ 210.4
- Responses to the motion and the complaint.§ 210.59
- The response.§ 210.13
- Institution of investigation.§ 210.10
- Service of complaint and notice of investigation.§ 210.11
- Identification of plan.§ 52.720
- Introduction.§ 52.02
- How does SBA define "business concern or concern"?§ 121.105
U.S. Code
- Federal Aviation Administration§ 106
- Rules and regulations§ 1335
- Unfair practices in import trade§ 1337
- Rule making§ 553
- Stay of certain actions pending disposition of related proceedings before the United States International Trade Commission§ 1659
- Testimony and production of papers§ 1333
- Exercise of functions of International Trade Commission§ 2482
- State implementation plans for national primary and secondary ambient air quality standards§ 7410
- Purposes§ 3501
- Definitions§ 601
- Establishment, functions, and activities§ 272
- SHORT TITLE.§ 801
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Congressional findings and declaration of purpose§ 7401
- Public information collection activities; submission to Director; approval and delegation§ 3507
- Relationship to other laws§ 30103
- General powers§ 322
- Other requirements and authority§ 1855
- Findings, purposes and policy§ 1801
20 references not yet in our index
- 7 CFR 989
- 7 USC 601-674
- 14 CFR 39
- 14 CFR 71
- 19 CFR 201
- 19 CFR 210
- 40 CFR 52
- 472 F.3d 882
- Pub. L. 104-4
- 47 CFR 73
- 5 CFR 1320
- Pub. L. 104-13
- 49 CFR 571
- Pub. L. 109-59
- 119 Stat. 1144
- 13 CFR 121
- 529 U.S. 861
- Pub. L. 104-113
- 49 CFR 1.50
- 50 CFR 648
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