This AD is related to AD 2002-06-02, amendment 39-12678 (67 FR 12464, March 19, 2002). Boeing Alert Service Bulletin 747-55A2050, dated February 28, 2002, was referenced in that AD as the applicable source of service information for accomplishment of the required actions. That AD is applicable to all Boeing Model 747 series airplanes and requires repetitive inspections for cracking of the upper skin of the horizontal stabilizer center section and the rear spar upper chord, and repair if necessary. That AD was prompted by a report that a 3.5-inch crack was found in the upper skin of the horizontal stabilizer center section on a Boeing Model 747SR series airplane. The actions specified by that AD are intended to find and fix cracking of the upper skin of the horizontal stabilizer center section and the rear spar upper chord, which could lead to reduced structural capability of the horizontal stabilizer center section, and result in loss of controllability of the airplane.

The FAA has received 22 reports from two operators of cracking found on six Model 747 series airplanes with between 20,800 and 37,000 total flight cycles, and between 41,700 and 115,700 total flight hours. Of the 22 reports of cracking received, the cracking specified in 20 of the reports was in an area not covered by the Zone A inspections required by AD 2002-06-02. One operator reported finding two fractured and three cracked Maraging steel fasteners on an airplane with approximately 18,700 total flight cycles and 87,300 total flight hours. Such cracking, if not fixed, could lead to reduced structural capability of the outboard and center sections of the horizontal stabilizer, which could result in loss of controllability of the airplane.

We have reviewed and approved Boeing Alert Service Bulletin 747-55A2050, Revision 1, dated May 1, 2003, which describes procedures for repetitive inspections for cracking of the upper skin of the outboard and center sections of the horizontal stabilizer and the rear spar structure, hinge fittings, terminal fittings, and splice plates; and repair if necessary. The areas and inspection types are as follows:

• Zone A Inspections (inspections required by AD 2002-06-02): Part 1—Detailed inspections for cracking in the upper skin of the center section and rear spar upper chord. Part 2—High frequency eddy current (HFEC) inspections for cracking of the upper skin of the center section and rear spar upper chord. If no cracking is found, the service bulletin specifies either repeating the detailed inspection or the doing the Zone A—Part 2 inspection. If cracking is found, the service bulletin specifies doing the Zone B—Part 4 inspection and repairing any cracking. Following that inspection and repair, the service bulletin specifies either repeating the Zone A—Part 1 detailed inspection or doing the Zone A—Part 2 HFEC inspection.

• Zone B Inspections (inspections required by this AD):

Part 3—Nondestructive test (NDT) inspections for Groups 1, 2, and 3 airplanes: Includes an ultrasonic inspection for cracking of the outboard and center sections, rear spar upper chords under the hinge fitting halves, upper skins under the splice plates, and the rear spar webs behind the terminal fittings; a HFEC inspection for cracking in the terminal fittings around the fasteners; a low frequency eddy current inspection for cracking in the splice plates around the fasteners; a surface HFEC inspection for cracking in the rear spar upper chords in the radius area above the terminal fittings and the lower surface of the horizontal flange; and a HFEC inspection for cracking in the rear spar webs in the exposed area above the terminal fittings.

Part 4—Alternate open hole NDT inspection for Groups 1, 2, and 3 airplanes; recommended for Groups 4, 5, and 6 airplanes: Includes an open hole HFEC inspection for cracking of the splice plates, terminal fittings, hinge fitting halves, rear spar upper chords, rear spar webs, and upper skins; and a magnetic particle inspection or fluorescent penetrant inspection of the bolts for damage, if applicable. If no cracking or no damaged hole is found, the service bulletin specifies either repeating the Part 3 NDT inspections or doing the Part 4 open hole NDT inspection, as applicable. If cracking or a damaged hole is found, the service bulletin specifies repairing the cracking and the damaged hole and repeating the Part 3 NDT inspections or doing the Part 4 open hole NDT inspection, as applicable.

Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to find and fix cracking of the upper skin of the outboard and center sections of the horizontal stabilizer and the rear spar structure, hinge fittings, terminal fittings, and splice plates. Such cracking could lead to reduced structural capability of the outboard and center sections of the horizontal stabilizer, and result in loss of controllability of the airplane. This AD requires accomplishment of the Zone B inspections for Groups 1, 2, and 3 airplanes as specified in Parts 3 and 4 of the service bulletin described previously, except as discussed in the “Differences” section below.

This AD does not supersede AD 2002-06-02; therefore, accomplishment of that AD is still required. Please note that as stated in the approval section of Boeing Alert Service Bulletin 747-55A2050, Revision 1, dated May 1, 2003, that bulletin has been approved as an alternative method of compliance to certain portions of AD 2002-06-02.

At this time the FAA is considering a separate rulemaking action to supersede this AD to address the procedures for repetitive inspections of Zone C to find additional cracking, and repair of any cracking found, as described in the service bulletin. That action would also mandate repetitive inspections of Zone B for Groups 4, 5, and 6 airplanes. Due to the urgency of the need to inspect the fleet and repair any cracking found, this AD will address only the sections in the service bulletin that pertain to inspections and repair of Zone B for Groups 1, 2, and 3 airplanes.

In addition to superseding this AD, that rulemaking action would also supersede AD 2002-06-02 to mandate long-term inspections of all affected zones specified in the referenced service bulletin for all 747 series airplanes. However, the planned compliance time for these actions is sufficiently long so that prior notice and time for public comment will be practicable.

The effectivity listing of the service bulletin identifies all Model 747 series airplanes, line number 1 and on, divided into 6 groups, as being subject to the actions described therein. However, only Model 747 series airplanes having line numbers 1 through 695 inclusive (Groups 1, 2, and 3 airplanes) are included in the applicability of this AD, as the required actions apply only to the Zone B inspections for those airplanes.

The service bulletin recommends accomplishing the initial Zone B inspections for Groups 1, 2, and 3 airplanes within 90 days (after the issue date of the service bulletin) for airplanes with 27,000 or more flight cycles or 117,000 or more flight hours. We have determined, however, that limiting the inspections to airplanes with 27,000 or more flight cycles or 117,000 or more flight hours would not address all affected airplanes, in light of the fact that the unsafe condition is likely to exist or develop on other Model 747 series airplanes. In developing an appropriate compliance time for all airplanes that are affected by this AD, the FAA considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the required inspections. In light of all of these factors, we find that a compliance time of the later of the following times is warranted for initiating the required inspections: (1) Before the accumulation of 27,000 total flight cycles or 117,000 total flight hours, whichever is first; and (2) within 90 days after the effective date of this AD. We find that this compliance time represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

The service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions; however, this AD requires the repair of those conditions to be accomplished per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the Manager, Seattle Aircraft Certification Office, to make such findings.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD; however, this AD identifies the office authorized to approve alternative methods of compliance.

Since a situation exists that requires the immediate adoption of this regulation, it is found 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.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-101-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

What events have caused this AD? The manufacturer has reported that the TAWS8000 TAWS causes altitude errors in other instruments when both the TAWS and any other device are connected to the same baro set potentiometer. The unsafe condition was discovered during the installation of a TAWS8000 TAWS in a Cessna 500 series airplane. The TAWS8000 TAWS was connected to the baro set potentiometer output of a Honeywell (Sperry) BA-141 altimeter that was also connected to a Honeywell AZ-241 Air Data Computer. The altimeter showed that the aircraft was 60 feet higher than the actual altitude. This unsafe condition was confirmed with the laboratory test of a TAWS8000 TAWS installation.

What are the consequences if the condition is not corrected? This condition, if not corrected, could cause the pilot to make flight decisions that put the airplane in unsafe flight conditions.

Is there service information that applies to this subject? Goodrich has issued Service Memo SM #134, dated May 2, 2003.

What are the provisions of this service information? The service memo specifies the following information:

• The TAWS8000 should not be connected to a baro set potentiometer if that potentiometer is also connected to any other device; and

• In existing installations where both the TAWS and any other device are connected to the same baro set potentiometer, the TAWS8000 should be removed from the aircraft.

What has FAA decided? The FAA has reviewed all available information, including the service information referenced above; and determined that:

• The unsafe condition referenced in this document exists or could develop on type design airplanes equipped with a Goodrich TAWS8000 TAWS that incorporates hardware “Mod None”, “Mod A”, or “Mod B”;

• Any airplane with one of these TAWS8000 TAWS units should have the actions specified in the above service memo incorporated; and

• AD action should be taken in order to correct this unsafe condition.

What does this AD require? This AD:

• Requires inspection of the TAWS8000 TAWS to determine if both the TAWS8000 TAWS and any other device are connected to the same baro set potentiometer;

• Requires removal of any TAWS8000 TAWS with such an installation configuration, which includes capping and stowing the connecting wires; and

• Prohibits the future installation of any TAWS8000 TAWS that incorporates hardware “Mod None”, “Mod A”, or “Mod B'.

In preparation of this rule, we contacted type clubs and aircraft operators to obtain technical information and information on operational and economic impacts. We did not receive any information through these contacts. If received, we would have included, in the rulemaking docket, a discussion of any information that may have influenced this action.

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

Will I have the opportunity to comment prior to the issuance of the rule? Because the unsafe condition described in this document could result in the pilot making flight decisions that put the airplane in unsafe flight conditions, we find that notice and opportunity for public prior comment are impracticable. Therefore, good cause exists for making this amendment effective in less than 30 days.

How do I comment on this AD? Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, FAA invites your comments on the rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES . We will consider all comments received on or before the closing date specified above. We may amend this rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether we need to take additional rulemaking action.

Are there any specific portions of the AD I should pay attention to? We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each FAA contact with the public that concerns the substantive parts of this AD.

How can I be sure FAA receives my comment? If you want us to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2003-CE-25-AD.” We will date stamp and mail the postcard back to you.

Does this AD impact various entities? These regulations 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. Therefore, FAA has determined that this final rule does not have federalism implications under Executive Order 13132.

Does this AD involve a significant rule or regulatory action? We have determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a significant regulatory action under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket (otherwise, an evaluation is not required). A copy of it, if filed, may be obtained from the Rules Docket.

What events have caused this AD? The Civil Airworthiness Authority (CAA), which is the airworthiness authority for the United Kingdom, recently notified FAA that an unsafe condition may exist on all Models SC-7 Series 2 and SC-7 Series 3 airplanes. The CAA reports 27 flight control rods with corrosion beyond acceptable limits and 15 rods with cracks. This is on a total of 26 different aircraft.

What is the potential impact if FAA took no action? Cracked or corroded flight control rods, if not detected or corrected, could lead to complete failure of the flight control system with consequent loss of control of the airplane.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Shorts Models SC-7 Series 2 and SC-7 Series 3 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on April 10, 2003 (68 FR 17563). The NPRM proposed to require you to repetitively inspect all flight control system rods for corrosion and cracks, replace any cracked rod, and repair corrosion damage or replace any corroded rod depending on the extent of the damage.

The NPRM also proposed to give initial inspection credit to those operators who had previously inspected the flight control rods in accordance with Shorts Service Bulletin 27-74 (any revision level).

Was the public invited to comment? The FAA encouraged interested persons to participate in the making of this amendment. We did not receive any comments on the proposed rule or on our determination of the cost to the public.

What is FAA's final determination on this issue? After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

• Provide the intent that was proposed in the NPRM for correcting the unsafe condition; and

• do not add any additional burden upon the public than was already proposed in the NPRM.

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

How many airplanes does this AD impact? We estimate that this AD affects 24 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish the initial inspection:

The follow-up inspections will be substantially less than the initial inspection because the flight control rods only have to be removed in the initial inspection. Replacement control rods cost $2,000. We have no way of determining the number of airplanes that may need such repair/replacement.

What will be the compliance time of this AD? The initial inspection compliance time of this AD is “within the next 3 months after the effective date of this AD or within 24 months after the last inspection accomplished in accordance with Shorts Service Bulletin 27-74 (any revision level), whichever occurs later.” The repetitive inspection compliance time of this AD is “thereafter at intervals not to exceed 24 months.”

Why is the compliance time presented in calendar time instead of hours time-in-service (TIS)? The unsafe condition specified by this AD is caused by corrosion. Corrosion can occur regardless of whether the aircraft is in operation or is in storage. Therefore, to ensure that the unsafe condition specified in this AD does not go undetected for a long period of time, the compliance is presented in calendar time instead of hours TIS.

Does this AD impact various entities? The regulations adopted herein 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

Does this AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this action (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. A copy of the final evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

This AD applies to Rolls-Royce Corporation models 250-C30R/3, -C30R/3M, -C47B, and -C47M turboshaft engines. This AD requires initial and repetitive electrical signal inspections of the HMU PLA potentiometer. This AD is prompted by an investigation by the NTSB into uncommanded and sudden changes in engine power on a Bell 407 helicopter on March 27, 2003. The NTSB investigation revealed that a potential undetected failure of the PLA potentiometer electrical signal, provided by the HMU of the full-authority digital electronic control (FADEC) system, could cause uncommanded and sudden changes in engine power. The actions specified in this AD are intended to prevent uncommanded and sudden changes in engine power.

We have reviewed and approved the technical contents of section 2.B. of the Accomplishment Instructions of Rolls-Royce Corporation combined Service Bulletin (SB) CEB A-73-3103 (250-C30 engines) and CEB A-73-6030 (250-C47 engines), Revision 3, dated June 5, 2003, that describes procedures for inspecting the PLA potentiometer signal.

Although the combined SB CEB A-73-3103 (250-C30 engines) and CEB A-73-6030 (250-C47 engines), Revision 3, dated June 5, 2003, also includes 250-C40 engines, as CEB A-73-5021, the 250-C40 engine model is not affected by this AD because it is used in twin engine applications.

The unsafe condition described previously is likely to exist or develop on other Rolls-Royce Corporation (formerly Allison Engine Company, Allison Gas Turbine Division, and Detroit Diesel Allison) models 250-C30R/3, -C30R/3M, -C47B, and -C47M turboshaft engines of the same type design. Therefore, we are issuing this AD to prevent uncommanded and sudden changes in engine power. This AD requires an initial electrical signal inspection of the HMU PLA potentiometer within 50 flight hours after the effective date of this AD, but no later than July 15, 2003, and thereafter, repetitive inspections every 300 flight hours. You must do these inspections in accordance with the service information described previously.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for prior public comment are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs our AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. 2003-NE-23-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us through a nonwritten communication, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You may get more information about plain language at http://www.plainlanguage.gov.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the regulation:

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

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

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-NE-23-AD” in your request.

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

This AD applies to PW PW4074, PW4074D, PW4077, PW4077D, PW4090, and PW4090-3 turbofan engines with HPC rear cases, P/Ns 55H425-01, 55H385-01, and 56H396-01 installed. This AD requires initial and repetitive visual or FPI inspections of the J flange on HPC rear cases, P/Ns 55H425-01, 55H385-01, and 56H396-01, which were previously produced with or modified to a scalloped flange configuration using PW Service Bulletin (SB) No. PW4G-112-72-150, dated April 16, 1998, or SB No. PW4G-112-72-151, dated April 16, 1998, or SB No. PW4G-112-72-195, dated May 5, 1999. This AD also requires removal from service of the rear case based on certain inspection results. This AD is prompted by 32 reports of cracks propagating from bolt holes in the HPC rear case J flange, and reports of high-cycle HPC rear cases exhibiting cracks propagating into the shell wall. The HPC rear cases, P/Ns 55H425-01, 55H385-01, and 56H396-01 were produced with or modified by PW SBs to incorporate a scalloped J flange design as corrective action to eliminate flange cracking at the bolt holes. The scalloped flange has not been effective in eliminating J flange cracking. Cracks found propagating into the shell wall could result in loss of case integrity, and require immediate removal before further flight. The actions specified in this AD are intended to prevent fracturing and rupturing of the HPC rear case, resulting in uncontained engine failure.

We have reviewed and approved the technical contents of PW SB No. PW4G-112-72-256, dated April 2, 2003, that describes procedures for initial and repetitive visual or FPI inspections of the J flange on HPC rear cases, and removal from service of the rear case based on certain inspection results.

This AD adds an additional inspection at bolt hole location number 69, which was not originally listed in PW SB No. PW4G-112-72-256, because one report of a crack at that location has been received since the service bulletin was released. Future revisions of PW SB No. PW4G-112-72-256 will include this inspection location.

The unsafe condition described previously is likely to exist or develop on other PW PW4074, PW4074D, PW4077, PW4077D, PW4090, and PW4090-3 turbofan engines of the same type design. Therefore, we are issuing this AD to prevent fracturing and rupturing of the HPC rear case, resulting in uncontained engine failure. This AD requires:

• Initial and repetitive visual or FPI inspections of the J flange on HPC rear cases, P/Ns 55H425-01, 55H385-01, and 56H396-01.

• Removal of the rear case from service based on certain inspection results.

You must do these actions in accordance with the service information described previously.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for prior public comment are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs our AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

These actions are interim actions and we may take further rulemaking actions in the future.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. 2003-NE-24-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us through a nonwritten communication, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You may get more information about plain language at http://www.plainlanguage.gov.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the regulation:

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

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

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-NE-24-AD” in your request.

Under Title 49 of the United States Code (49 U.S.C.) section 40123, certain voluntarily provided safety and security information is protected from disclosure in order to encourage people to provide the information to the Federal Aviation Administration (FAA). The FAA must first find that the information should be protected in accordance with 49 U.S.C. section 40123. The FAA's rules for implementing section 40123 are in 14 CFR part 193. If the Administrator issues an order designating information as protected under section 40123, that information will not be disclosed under the Freedom of Information Act (5 U.S.C. section 552) or other laws, except as provided in section 40123, part 193, and the order that designates the information as protected. This FAA order for FOQA is issued under part 193, section 193.11, which sets out the notice procedure for designating information as protected.

A notice of proposed order designating FOQA information as protected from disclosure was published in 67 FR 56770 on September 5, 2002. In response to the notice, comments were received by the FAA. Appendix 1 of Order 8000.81 summarizes those comments and provides the FAA's responses thereto. A summary of changes made to the proposed order is provided in Appendix 2 of Order 8000.81.

Order 8000.81 is applicable to any FAA office that receives information covered under this designation from a FOQA program. The order is also applicable to any other government agency that receives such information from the FAA. In order for any other government agency to receive FOQA information protected from disclosure under this designation from the FAA, an agency must first stipulate, in writing, that it will abide by the provisions of part 193 and this order.

A. Who may participate? Aircraft operators that have an FAA-approved FOQA Implementation and Operations Plan may participate.

B. What voluntarily provided information would be protected from disclosure under this proposed designation?

1. FOQA data, which is defined as any digital flight data that has been collected from an individual aircraft pursuant to an FAA-approved FOQA program, regardless of the electronic format of that data.

2. The identities of pilots provided to the FAA who are associated with any FOQA data submitted to the FAA.

3. Aggregate FOQA data from an individual operator, which is defined as summary statistical indices based on analysis of FOQA data from multiple aircraft operations, when such data is provided pursuant to an FAA-approved FOQA program.

4. Reports prepared by an individual operator that are based on analysis of the individual operator's FOQA data or aggregate data pursuant to an FAA-approved FOQA program. (Before release of any such reports prepared by the FAA, information protected from disclosure under this order will be redacted.)

5. The identity of an individual operator associated with specific FOQA data, specific aggregate FOQA data, or a specific report derived from analysis of the individual operator's FOQA data, pursuant to an FAA-approved FOQA program.

6. The specific results of any FAA analysis of FOQA data or FOQA aggregate data from an individual operator or multiple operators, when such data has been provided pursuant to an FAA-approved FOQA program and the release of the specific results would constitute the release of FOQA data or aggregate data protected from disclosure under this order.

7. The specific corrective actions reported to the FAA that are initiated by the operator of an FAA-approved FOQA program to correct an adverse safety trend revealed by analysis of that operator's FOQA data.

8. A data base of aggregate FOQA data collected over time from an individual operator's approved FOQA program.

9. A data base of events, outcomes, and reports prepared by an individual operator collected over time from its approved FOQA program.

C. How do you participate? An operator participates by obtaining FAA approval of its FOQA Implementation and Operations Plan, adhering to that approved plan, and voluntarily sharing FOQA data, aggregate FOQA data, or other FOQA information as specified in this order with the FAA.

D. What is the duration of this information-sharing program? This information-sharing program continues until the operator terminates its FOQA Implementation and Operations Plan or until the FAA withdraws the approval of the operator's FOQA Implementation and Operations Plan.

The FAA designates information received from an approved FOQA program as protected under 49 U.S.C. section 40123 and 14 CFR part 193, § 193.7, based on the following findings:

A. Summary of why the FAA finds that the information will be provided voluntarily. The FAA finds that the information will be provided voluntarily. No operator is required to have a FOQA program. No operator that has a FOQA program is required to obtain FAA approval of that program. Any operator that has an FAA-approved FOQA program may terminate that program at the operator's discretion. The FAA anticipates that information from an operator's approved FOQA program will be shared with the FAA, because the voluntary establishment of an approved FOQA program constitutes a partnership between the FAA and operator in the interest of achieving joint goals for the improvement of safety and efficiency.

B. Description of the type of information that may be voluntarily provided under the program, and a summary of why the FAA finds that the information is safety or security related.

1. The FAA anticipates that the types of information that may be voluntarily provided under the program will be:

(a) Summary statistical indices based on analysis of an individual operator's FOQA data

(b) Graphical depictions of trend information obtained from analysis of an individual operator's FOQA data

(c) Written findings that describe the results of FOQA data analysis and identify any adverse safety trends revealed by that data

(d) Corrective actions planned, in process, or completed to correct adverse safety trends revealed by FOQA data

(e) The results of FOQA analysis conducted to determine the effectiveness over time of corrective action accomplished by the operator

2. The FAA finds that this information is safety related because FOQA data and FOQA aggregate data provide objective information on the extent to which aircraft are operated in accordance with established procedures and acceptable margins of safety.

C. Summary of why the FAA finds that the disclosure of the information would inhibit persons from voluntarily providing that type of information. The FAA finds that disclosure of the information would inhibit the voluntary provision of that type of information. Operators are reluctant to share information from FOQA programs with the FAA, if such information might be subject to public disclosure.

(1) A significant impediment to the sharing of FOQA information with the FAA is the aviation industry's concern over public disclosure of the information and, if disclosed, the potential for it to be used for purposes other than the safety enhancement purposes that constitute the primary reason for the establishment of such programs. As a result, before this order, U.S. airlines participating in FAA-approved FOQA programs have not permitted aggregate FOQA data, and any written information derived from analysis of such programs, to leave the airline's premises. This information is considered to be confidential by the participating operators and their pilots.

(2) The FAA finds that reports prepared by an individual operator based on analysis of the individual operator's FOQA data or aggregate data, should be protected from public disclosure because the identity of the operator may be derived from that information. Unless the FAA can assure protection of identity information, such reports will not be submitted by the operator or specific information that could enhance the safety value of the report will not be included in the submission.

D. Summary of why the receipt of that type of information aids in fulfilling the FAA's safety and security responsibilities. The FAA finds that receipt of FOQA information aids in fulfilling the FAA's safety and security responsibilities. Because of its capacity to provide early objective information on emerging adverse safety trends, which enables remedial intervention, FOQA offers significant potential for incident and accident avoidance. Currently, FAA experience has clearly established that a FOQA program can produce objective safety-related data that is not available from any other source. For example, FOQA data concerning the frequency of unstable approaches on landing as a function of specific airport and runway environment has identified areas where improvements were needed in airline approach and landing checklists, airline training, air traffic control procedures, and published airport approach and landing procedures. Receipt of this previously unavailable objective information enabled airlines and the FAA to modify procedures and policies in order to improve safety and efficiency. If operators voluntarily support providing the FAA with aggregate FOQA data, the FAA can better serve as a national safety information resource for aircraft operators.

E. Summary of why withholding such information from disclosure would be consistent with the FAA's safety and security responsibilities, including a statement as to the circumstances under which, and a summary of why, withholding such information from disclosure would not be consistent with the FAA's safety and security responsibilities, as described in 14 CFR 193.9. The FAA finds that withholding FOQA data or aggregate FOQA data provided to the FAA from an approved FOQA program is consistent with the FAA's safety and security responsibilities.

(1) An approved FOQA Implementation and Operations Plan specifically provides that corrective action for adverse safety trends will be initiated by the operator and that the operator will inform the FAA about that action. For example, an operator could modify its pilot training program to place greater emphasis on approach and landing procedures and inform the FAA of that training program modification. The FAA can then monitor the implementation of that modification, as well as review follow-on FOQA trend data pertinent to approach and landing maneuvers, to determine the effectiveness of the corrective action. The FAA can therefore accomplish its safety responsibilities without disclosure of FOQA data to the public. Withholding the information is consistent with the FAA's safety responsibilities, because, except for disclosure protection the FAA would not receive the information, and by virtue of its receipt, the FAA is able to not only assure that the corrective action necessary to maintain public safety has been taken, but that such action continues to be effective for that purpose.

(2) The FAA will release FOQA information submitted to the agency, as specified in part 193 and this proposed order. For example, in order to explain the need for changes in FAA policies, procedures, and regulations, the FAA may disclose de-identified (no operator or pilot identity), summarized, information that has been derived from FOQA aggregate data or extracted from the protected information listed under paragraph 6b of Order 8000.81 [and under Findings, paragraph B, of this notice]. The FAA may disclose de-identified, summarized FOQA information that identifies a systemic problem in the aviation system, when other people need to be advised of the problem in order to take corrective action. The FAA may release the names of operators who have approved FOQA Implementation and Operations Plans. In addition, in accordance with 14 CFR section 13.401(e), the FAA may release FOQA information in support of enforcement actions that involve criminal or deliberate acts. To withhold disclosure of information in circumstances that involve criminal or deliberate acts would be inconsistent with the agency's safety responsibilities because it could prevent the agency, or at least diminish its ability, to effectively address such misconduct.

F. Summary of how the FAA will distinguish information protected under part 193 from information the FAA receives from other sources. An operator's approved FOQA Implementation and Operations Plan must specifically identify what digital flight data will be considered FOQA data, how that data is defined, and provisions for FAA access to aggregate FOQA data. Since an operator's aggregate FOQA data is derived by a process of aggregation from the operator's FOQA data, as defined in the FOQA Implementation and Operations Plan, and reports and other FOQA information, as specified in this order, are derived from analysis of the FOQA data as defined in that plan, the FOQA Implementation and Operations Plan on file with the FAA will serve as the primary reference source for distinguishing information protected under part 193 from information the FAA receives from other sources.

(1) The FAA acknowledges that operators are highly reluctant to share sensitive FOQA information with the FAA, in part because of concerns that even if the information is designated as protected under part 193, it may still be inappropriately released by someone in the agency. Therefore, the FAA anticipates that, to be successful, any program for FOQA information sharing will have to proceed on an incremental basis. The FAA must demonstrate, on a stepwise basis, that the measures it puts in place to protect FOQA information from disclosure are completely effective. The FAA intends to work in a collaborative fashion with airlines and labor associations towards that end. A FOQA Aviation Rulemaking Committee (ARC) comprised of airline, labor association, and FAA representatives has been established for that purpose.

(2) The FAA anticipates that the venue for submission to the FAA of aggregate FOQA data or other FOQA information, as specified in this order, will evolve over time in a fashion acceptable to all stakeholders. In order to be protected under this designation, all such submissions, regardless of the venue, must be clearly labeled as follows:

The FAA designates information described above to be protected from disclosure, in accordance with 49 U.S.C. section 40123 and 14 CFR part 193, when submitted pursuant to an approved FOQA program.

This document corrects errors made by the November 25, 2002 rule (67 FR 70545) (FRY Rule) relating to changes made by two earlier rules published in August and September, 2002. These errors appear in the License Requirements and License Exceptions sections for Export Control Classification Numbers (ECCNs) 6E001 and 6E002. These ECCNs had been revised in two final rules, Licensing Jurisdiction for “Space Qualified” Items and Telecommunications Items for Use on Board Satellites, published by BIS on September 23, 2002 (67 FR 59722), and Revisions and Clarifications to the Export Administration Regulations—Nuclear Nonproliferation Controls: Nuclear Suppliers Group, published August 29, 2002 (67 FR 55594).

Subsequent to the issuance of these two earlier rules, the FRY Rule omitted the September 23, 2002 rule's revision to the Reason for Control section of ECCNs 6E001 and 6E002 that reads as follows: RS applies to “technology” for equipment controlled by 6A002.a.1, .a.2, .a.3, .c, or .e, 6A003.b.3, or .b.4, or 6A008.j.1. In addition, the FRY Rule omitted the Non-Proliferation controls for “technology” for items controlled by ECCN 6D001 from the Reason for Control section of ECCN 6E001, as was revised by the August 29, 2002 rule. This document corrects the stated inadvertent omissions.

This document also corrects two other inadvertent omissions made by the FRY Rule. The September 23, 2002 rule had revised the License Exceptions for ECCNs 6E001 and 6E002. The FRY rule omitted the revision in the License Exception section of ECCN 6E001, which noted that “technology” for commodities controlled by 6A002.e or 6A008.j.1, and technology for “software” defined in 6A008.j.1 and controlled by 6D001or 6D002 are not eligible for License Exception TSR. The FRY rule also did not include the revision of the License Exception section of ECCN 6E002 that noted that “technology” for commodities controlled by ECCNs 6A002.e or 6A008.j.1 is not eligible for License Exception TSR.

1. This final rule has been determined not to be significant for purposes of E.O. 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule involves collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) These collections have been approved by the Office of Management and Budget (OMB) under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 40 minutes to prepare and submit electronically and 45 minutes to submit manually form BIS-748P. Send comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, to OMB Desk Officer, New Executive Office Building, Washington, DC 20503; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (Sec. 5 U.S.C. 553 (a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. 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. Therefore, this regulation is issued in final form. Although there is no public comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Sheila Quarterman, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

Merial Ltd., 3239 Satellite Blvd., Bldg. 500, Duluth, GA 30096-4640, filed NADA 141-214 for ZIMECTERIN GOLD (ivermectin 1.55 percent/praziquantel 7.75 percent) Paste. The application provides for use of an ivermectin and praziquantel oral paste for the control of various species of internal parasites in horses. The NADA is approved as of April 17, 2003, and 21 CFR part 520 is amended by adding new § 520.1198 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360b(c)(2)(F)(ii)), this approval qualifies for 3 years of marketing exclusivity beginning April 17, 2003.

The agency has determined under 21 CFR 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

(a) Specifications . Each milligram (mg) of paste contains 0.0155 mg (1.55 percent) ivermectin and 0.0775 mg (7.75 percent) praziquantel.

(b) Sponsor . See No. 050604 in § 510.600(c) of this chapter.

(c) Special considerations . See § 500.25 of this chapter.

(d) Conditions of use in horses —(1) Amount. 200 micrograms (μg) per kilogram (/kg) ivermectin (91 μg per pound (/lb)) and 1 mg/kg praziquantel (454 μg/lb) body weight.

(2) Indications for use —For treatment and control of tapeworms Anoplocephala perfoliata ; large strongyles (adults)— Strongylus vulgaris (also early forms in blood vessels), S. edentatus (also tissue stages), S. equinus ; Triodontophorus spp., including T. brevicauda and T. serratus ; and Craterostomum acuticaudatum ; small strongyles including those resistant to some benzimidazole class compounds (adults and fourth-stage larvae)— Coronocyclus spp., including C. coronatus , C. labiatus , and C. labratus ; Cyathostomum spp., including C. catinatum and C. pateratum ; Cylicocyclus spp., including C. insigne , C. leptostomum , C. nassatus , and C. brevicapsulatus ; Cylicodontophorus spp.; Cylicostephanus spp., including C. calicatus , C. goldi , C. longibursatus , and C. minutus ; Petrovinema poculatum ; pinworms (adults and fourth-stage larvae)— Oxyuris equi ; ascarids (adults and third- and fourth-stage larvae)— Parascaris equorum ; hairworms (adults)— Trichostrongylus axei ; large-mouth stomach worms (adults)— Habronema muscae ; bots (oral and gastric stages)— Gasterophilus spp., including G. intestinalis and G. nasalis ; lungworms (adults and fourth-stage larvae)— Dictyocaulus arnfieldi ; intestinal threadworms (adults)— Strongyloides westeri ; summer sores caused by Habronema and Draschia spp. cutaneous third-stage larvae; dermatitis caused by neck threadworm microfilariae, Onchocerca sp.

On January 19, 2001, OSHA published revisions to its rule on recording and reporting occupational injuries and illnesses (66 FR 5916-6135) to take effect on January 1, 2002. Section 1904.12(a) of that rule, which has never become effective, required an employer to check the MSD column on the OSHA 300 Log if an employee experienced a work-related musculoskeletal disorder (MSD) meeting the MSD definition contained in the regulation. The term MSD was defined in § 1904.12(b) to include disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs, except those caused by slips, trips, falls, motor vehicle accidents or other similar accidents.

Section 1904.12 did not establish the criteria for determining which MSD cases were recordable. Rather, the section made clear that MSDs were to be treated like any other injury or illness for purposes of applying the recording criteria and entering the necessary descriptive information about the case on the Log. Section 1904.12(b)(2) provided that

Prior to the January 2001 final rule, OSHA's injury and illness forms did not contain a column specifically for MSD cases. The old 200 Log contained a column for “repeated trauma” cases, which included some disorders affecting musculoskeletal tissues, but also included other conditions, such as occupational hearing loss. In the preamble to the 2001 recordkeeping rule, the Agency concluded that adding a column to the new 300 Log for MSDs was “essential to obtain an accurate picture of the MSD problem in the United States.” (66 FR 6030) The preamble noted that determining the number of MSD cases in the past has required close cooperation between OSHA and BLS, and the use of special computer analyses. Use of an MSD column would, in the Agency's view, promote more accurate reporting of MSDs and provide needed information on the overall incidence of MSDs in the workplace. (66 FR 6030) OSHA also stated that the column would provide a useful analytical tool at the establishment level. The preamble states, “The total count of cases in the MSD column will allow employers, employees, authorized representatives, and government representatives to determine, at a glance, what the incidence of these disorders in the establishment is.” (66 FR 6030 emphasis added).

On July 3, 2001, OSHA proposed to delay the effective date of § 1904.12 until January 1, 2003. OSHA explained that it was reconsidering the MSD column requirement and definition in light of the Secretary of Labor's decision to develop a comprehensive plan to address ergonomic hazards, and to schedule a series of forums to consider key issues relating to the plan, including the approach to defining ergonomic injuries (66 FR 35113-35115).

After considering the views of interested parties, OSHA published a final rule on October 12, 2001 delaying the effective date of 29 CFR 1904.12 until January 1, 2003. OSHA also added a note to 29 CFR 1904.29(b)(7)(vi) explaining that the second sentence of that section, which states that MSDs are not “privacy concern cases,” would not become effective until January 1, 2003. OSHA concluded that delaying the effective date of the MSD definition in § 1904.12 was appropriate because the Secretary was considering a related definitional question in the context of her comprehensive ergonomics plan. The Agency found that it would be premature to implement § 1904.12 before considering the views of business, labor and the public health community on the problem of ergonomic hazards. OSHA also found that it would create confusion and uncertainty to require employers to implement the new definition of MSD contained in § 1904.12 while the Secretary was considering how to define an ergonomic injury under the comprehensive plan (66 FR 52031-52034).

On April 5, 2002, OSHA announced a comprehensive plan to address ergonomic injuries through a combination of industry-targeted guidelines, enforcement measures, workplace outreach, research, and dedicated efforts to protect Hispanic and other immigrant workers. The comprehensive plan did not include a single definition of MSD. In the frequently asked questions (FAQs) issued with the plan, OSHA recognized that “MSD” is a term of art in scientific literature that refers collectively to a group of injuries and illnesses that affect the musculoskeletal system and that there is no single diagnosis for these disorders. The FAQs also indicated that different definitions of MSD might be appropriate depending upon the context in which they are to be used.

On July 1, 2002, OSHA published a Federal Register document outlining two further regulatory actions regarding § 1904.12. In Part I of the document, OSHA proposed to delay the effective date of § 1904.12 and the second sentence of § 1904.29(b)(7)(vi) for an additional year until January 1, 2004. (67 FR 44124-44126) In Part III of the document, OSHA requested comment on issues related to the MSD column and definition. (67 FR 44126-44127)

OSHA noted that a number of participants in the ergonomics forums had argued that the § 1904.12 definition of MSD combines too many disparate types of disorders to be useful. They pointed out that there are at least two distinct categories of disorders covered by the definition; disorders caused by a single event, such as a heavy lift, and disorders caused by repetitive or cumulative events, such as repetitive lifting, typing or assembly line work. To produce more relevant statistics, these participants suggested, OSHA should narrow the definition to focus on a group of disorders having common characteristics. Alternatively, some participants suggested that the MSD definition should be limited in its application to employment conditions involving regular or routine exposure to the activity that resulted in the injury. Other forum participants disagreed, claiming that the existing definition is the most relevant because, among other things, it is often difficult to determine if an MSD was caused by a single event or if a single event was merely the last in a series of events that lead to the injury. (67 FR 44125)

The Agency stated that it was considering whether an MSD column was necessary to produce better statistics. It asked for comment on a number of related issues, including whether “the statistics generated by an additional column [would] be superior to those now generated by the BLS.” (67 FR 44127) The Agency also indicated that it was considering a range of options, including deleting § 1904.12 if a column requirement was determined to be unnecessary. The request for comment stated, in relevant part, as follows:

OSHA invites comment on the following issues:

* * *

On December 17, 2002, OSHA issued a final rule delaying until January 1, 2004 the effective date of the MSD and hearing loss column requirements in §§ 1904.12 and 1904.10, and the statement in § 1904.29(b)(7)(vi) that MSDs are not considered privacy concern cases. (67 FR 77165) OSHA reached no final decision on the need for an MSD column in the December 17 rule, and stated that it would issue a final rule in 2003 resolving the issue. OSHA has now decided to delete the column and associated definition from the Recordkeeping rule.

Most parties responding to the July 1, 2002 request for comments opposed the MSD column on the Log. Several commenters argued that the column would not produce useful information. For example, the Society of the Plastics Industry (SPI), asserted that:

The Synthetic Organic Chemical Manufacturers Association (SOCMA) echoed this concern, stating that “add[ing] a column on the 300 Form will not generate true causal information useful for accident prevention. Knowing that 20%-35% of accidents have a check in the MSD column on the OSHA 300 form is not information useful to companies wishing to improve safety.” Ex. 2-9 at 2.

Other participants argued that § 1904.12 should be deleted because:

• An MSD column was unnecessary, e.g. , Exs. 2-7, 2-9, 2-14, 2-21, 2-23, 2-27, 2-30, 3-5, 3-12, 3-16;

• OSHA's comprehensive ergonomics plan found that no single definition of MSD was appropriate, e.g. , Exs. 2-3, 2-12, 2-13, 2-16, 2-28, 2-29, 2-32, 2-35;

• The § 1904.12 MSD definition was inappropriate, e.g. , Exs. 2-3, 2-6, 2-7, 2-8, 2-9, 2-12, 2-13, 2-16, 2-23, 2-27, 2-28, 2-29, 2-30, 2-31, 2-32, 2-35, 3-3, 3-14, 3-16;

• The controversy and lack of consensus in the scientific and medical communities on the MSD issue made it premature for OSHA to include a regulatory definition, e.g. , Exs. 2-8, 2-12, 2-13, 2-14, 2-31, 2-32, 2-35, 3-17; and

• The MSD column imposes an unnecessary paperwork burden, e.g. , Exs. 2-2, 2-5, 2-9, 2-12, 2-21, 2-23.

OSHA also received comments supporting the MSD column on the Log, (See, e.g. , Exs. 2-10, 2-11, 2-18, 2-19, 2-20, 2-22, 2-24, 2-25, 2-26, 2-34, 2-35, 2-36, 2-37, 2-39, 3-2, 3-7, 3-9, 3-15). These commenters argued:

• That an MSD column can be used to identify injuries and develop prevention strategies, (See, e.g. , Ex. 2-10, 2-11, 2-18, 2-19, 2-20, 2-22, 2-24, 2-25, 2-34, 2-35, 2-36, 2-39, 3-9, 3-15);

• That an MSD column is needed to develop more complete and consistent statistics by BLS, (See, e.g. , Ex. 2-11, 2-18, 2-20, 2-24, 2-25, 2-26, 2-35, 2-36, 3-7);

• That an MSD column helps OSHA and NIOSH during workplace interventions, (See, e.g. , Ex. 2-20, 2-24, 2-25, 2-26); and

• That the lack of an MSD column may lead to under-recording of MSD injuries, (See, e.g. , Ex. 2-25).

According to the AFL-CIO, the MSD column is needed for two reasons; to assist employers, workers and OSHA in identifying and addressing ergonomic hazards in individual workplaces, and to improve the national statistics on MSDs (Ex. 2-24-1). The AFL-CIO argued that the MSD column would serve as a useful tool at the establishment level by providing a “simple, direct way” for employers and OSHA inspectors to identify MSDs, and potentially hazardous jobs, and calculate MSD rates and trends (Ex. 2-24-1, p. 12). The AFL-CIO claimed that the column was needed at the national level to correct what it asserted was a distorted picture of the MSD problem portrayed by current BLS statistics. The AFL-CIO argued that since BLS only collects data on individual injuries and illnesses resulting in days away from work, BLS's published reports showing a decline in MSD incidence rates since 1992 understate the seriousness of the problem posed by these disorders (Ex. 2-24-1, p. 13).

OSHA has carefully reviewed the determination made in the January 19, 2001 rule and the record supporting that determination, as well as the evidence submitted by the participants in the ergonomics forums and the parties responding to the July 2002 request for comment on the need for an MSD column. The Agency has determined that this record does not support the column requirement. The principal justifications advanced for the column are that it would be a useful tool in analyzing and addressing ergonomic hazards in individual workplaces and that it would yield more accurate national statistics on ergonomic injuries. As discussed below, neither of these justifications is persuasive.

The MSD column would not be a useful tool in addressing MSDs at the establishment level for two reasons. First, because the column would show only the total number of MSDs that occurred in an establishment and nothing about the nature or cause of these disorders, it would be of very little practical use in devising abatement methods for ergonomic hazards. Second, to the extent that employers and workers believe that the total count of MSD cases is relevant in an establishment, the number is easily obtainable without the column requirement.

The January 2001 preamble states that the MSD column would be useful because it would enable employers and others to determine at a glance the total number of these disorders that had occurred. However, the total number, standing alone, tells nothing about the specific types of disorders that may be involved. The MSD definition in § 1904.12 encompasses a broad range of health conditions from back injuries to carpal tunnel syndrome. Thus, the total MSD count in an establishment could include a number of disparate disorders that have little in common. More importantly, the total number of cases tells nothing about the possible causes and prevention of ergonomic hazards. Simply knowing that a certain number of MSD cases have occurred does not permit one to determine which jobs or working conditions pose ergonomic hazards and how they may be abated.

To effectively analyze and address ergonomic injuries that are occurring in workplaces, employers and others must be able to link specific types of injuries to specific characteristics of jobs or working conditions. This requires evaluation of each individual case to determine the part of the body affected, the nature of the job performed by the injured employee and other relevant data. Such information is currently available in the case-description section of the 300 Log and in the 301 Incident Report. Evaluation of these case-entry data, particularly the job title and the description of the injury and affected body part contained in Columns C and F on the 300 Log, will enable employers, workers and OSHA to identify specific types of MSDs, to link specific MSD injuries to specific ergonomic risk factors, and to identify trends in certain jobs or work practices over time.

The MSD column would not assist with the kind of detailed analysis necessary to effectively abate MSDs at the establishment level. Conscientious employers, employees and authorized representatives who wish to address MSDs in their workplaces will do so, as they have in the past, by examining the entire Log, whether or not an MSD column is implemented. Some employers and others may wish to use the § 1904.12 definition of MSD as part of their comprehensive records analysis or they may wish to use a different definition more suited to their specific working conditions. For example, nursing home employers may wish to focus particularly on back cases in analyzing the effectiveness of patient lifting and repositioning abatement measures. On the other hand, employers and others who do not wish to perform a comprehensive analysis would not be able to use an MSD column as a substitute for the analysis.

To the extent that the aggregate total of MSD cases is of some relevance, the number can easily be determined without a column. Based on the description-of-injury information in column F of the Log, one can very quickly identify which cases are MSDs under the § 1904.12 definition, or an alternative definition such as the one in OSHA's meatpacking guidelines. The MSD column is simply not necessary for this purpose. For these reasons, OSHA concludes that the MSD column would not be a useful tool at the establishment level.

A related point argued by some is that an MSD column is needed to ensure effective enforcement of the general duty clause. However, the column has never been in effect and has not been a factor in enforcement of the clause. It is difficult to see the utility of simply checking an MSD column given the detailed nature of the information needed by OSHA to sustain a general duty clause citation. The case description data in the 300 and 301 forms is available to assist OSHA in its inspection activities. This information permits a more comprehensive understanding of MSDs in workplaces than would a single aggregate statistic produced by a column. Accordingly, there is no need for an MSD column on the Log for enforcement purposes.

The other justification cited for the MSD column is that it is necessary to improve the accuracy and usefulness of the national injury and illness statistics. However, OSHA concludes that MSD column would not materially improve the national statistics on MSDs. The national statistics already include comprehensive information about MSDs that result in days away from work, including the total number and incidence rate of these disorders. As to other MSDs, the MSD column would allow the Bureau of Labor Statistics (BLS) to calculate the total number of these cases, but not to analyze their characteristics in any way. OSHA does not believe that a new statistic on total MSDs would be useful without the ability to assess the specific characteristics of these disorders. To obtain additional data necessary to allow BLS to assess the characteristics of MSDs that do not require days away from work would require significant changes to the BLS survey system not contemplated in the proposed recordkeeping rule and not requested by any party.

BLS is responsible for producing the national injury and illness statistics. BLS currently publishes two categories of statistics on non-fatal injuries and illnesses. One category consists of detailed information about injuries and illnesses that require days away from work to recuperate; the other category consists of aggregate totals for all types of injuries and illnesses combined.

The first category of statistics, called case characteristics, is derived from a survey eliciting information from participating employers on a sample of injuries and illnesses resulting in days away from work. The survey provides detailed information about the specific characteristics of these cases, including the employee's age, sex, occupation and length of service; the employer's industry classification; the number of days away from work that were required; the part of the body affected; the source of injury ( e.g. , bodily motion or position, machinery, fire, toxic substance) and the causal event or exposure ( e.g. , overexertion, repetitive motion, fall, explosion ).

BLS produces information on MSDs from those days away from work cases for which characteristics data are collected. BLS categorizes a case as an MSD using information on the nature of the injury and illness and the event or exposure leading to the injury or illness, as reported by the employer. Cases reported as MSDs by BLS include those in which the nature of the injury is a sprain, strain, tear, soreness, hernia, carpal tunnel syndrome or other similar type of injury to the soft tissue structures, and in which the causal event is bodily movement, such as bending, climbing, reaching, twisting, overexertion, or repetition. See BLS report Lost-worktime Injuries and Illnesses: Characteristics and Resulting Time Away From Work 2000, available on the BLS Internet site (www.bls.gov).

The BLS case characteristic data permit detailed analysis of different types of MSDs by employee age and sex, occupation, industry sector, severity of disorder, type of causal event, type of bodily motion and other relevant characteristics. As a result, the BLS data can be highly useful in identifying the most serious MSDs and the conditions leading to them, and in pinpointing high-risk industries and occupations. For example, the BLS Supplemental Tables for calendar year 2000 contain a detailed breakdown of lost-worktime MSDs by type, severity, source of injury, event or exposure, and other characteristics. The breakdown also presents the aggregate number of lost-worktime MSDs that occurred by major industry sector. See Case and Demographic Characteristics for Work -related Injuries and Illnesses Involving Days Away From Work, Supplemental Tables for 2000 , Table 11. Additional Tables for 2000 contain detailed breakdowns of specific types of MSDs, such as carpal tunnel syndrome, tendonitis and repetitive motion injuries. See Id. , Tables 3 and 9.

The case characteristic data are also helpful in identifying significant information on the incidence of specific disorders. For example, in 2000, the latest year for which case characteristic data are available, the BLS statistics show that carpal tunnel syndrome accounted for the highest median number of days away from work of any disabling injury or illness, that repetitive motion and typing resulted in the longest absences from work among the leading events and exposures, and that truck drivers, nursing aides and non-construction laborers were the occupations with the greatest numbers of aggregated MSDs, accounting for one out of five of these disorders. See the BLS report Lost-Worktime Injuries and Illnesses: Characteristics and Resulting Time Away From Work, 2000 (April 10, 2002), available on the BLS Internet site.

A second category of statistics is concerned with the total number and incidence rate of non-fatal cases of all types. Statistics in this series indicate, for each sector of private industry, the total number of non-fatal injuries and illnesses reported as well as the number of these cases with lost-workdays and the number of cases without lost-workdays. This series also includes the incidence rate of non-fatal injuries and illnesses by industry calculated as the number of cases per 100 full time employees. See the BLS report Workplace Injuries and Illnesses in 2000 (December 18, 2001). 1 Together these two types of statistics—case characteristic data and overall incidence data—present a wealth of information about occupational injuries and illnesses across the nation.

If the MSD column were implemented, employers participating in the BLS survey would report annually the total number of MSD cases checked on the Log. This information would enable BLS to publish the total number and incidence rates of MSDs of all types. Thus, the statistical tables depicting the total number and incidence rates of non-fatal injuries and illnesses by industry would include an additional column for total MSD cases. (See, e.g. , Workplace Injuries and Illnesses in 2000 , Tables S14 and S16)

These new statistics would add only marginally to the information currently available. As described above, the BLS case characteristic data already present a comprehensive picture of the most severe MSDs, including separate statistics on the total number and incidence rate of these disorders. Accordingly, the MSD column would add minimally to the national statistics on MSDs that resulted in days away from work.

The new data would be relevant primarily for the purpose of estimating the number of MSDs that do not result in days away from work. The number of these MSDs could be approximated by subtracting the number of days away from work MSD cases reported by BLS from the total number of MSDs of all types produced by the column. However this estimate would have limited utility because the absence of case characteristic data for cases that do not result in days away from work MSDs precludes analysis of them.

As noted above, the BLS survey elicits descriptive information only on injuries and illnesses, including MSDs, resulting in days away from work. The BLS database of case-characteristics has never included information on or analyses of cases that do not result in days away from work. Accordingly, BLS cannot analyze the characteristics of these injuries and illnesses as it can days away from work cases. Adding an MSD column to the Log would not change the basic structure of the survey, and would not produce any additional descriptive data on the less severe cases. Significant changes in the survey itself would be required before BLS could collect this type of data.

Because an MSD column would not enable BLS to collect case characteristic data on all MSDs, any new statistic reporting the aggregate total number of such cases would be difficult to interpret. There would be no way to distinguish among different types of these disorders, determine possible causal factors, evaluate demographics, or perform the other analyses. OSHA believes that total number of MSDs, standing alone, would not be useful without the ability to analyze the underlying data.

Having a column requirement might be warranted if a specific injury or illness was substantially misrepresented in the BLS statistics for cases with days away from work. For example, OSHA recently found that the estimate of days away from work occupational hearing loss cases, which totaled only 316 cases in the year 2000, probably represents only a tiny fraction of the total hearing loss cases in the Nation because workers commonly suffer hearing loss and never require a day away from work. (See, e.g. , 67 FR 77168 explaining the need for a hearing loss column on the Log.) In the 2001 Recordkeeping rule, OSHA stated that it believed that many cases of hearing loss, probably numbering in the thousands, do not result in days away from work and are therefore not represented in the BLS statistics. (66 FR 6005). Because the BLS statistics on hearing loss represented only a minor fraction of the hearing loss experienced by workers, OSHA believed that a column was necessary to obtain useful data on hearing loss cases. In contrast, BLS produces a wealth of useful information about MSDs. The BLS statistics for the year 2000 included over 577,800 MSDs with days away from work, accounting for more than eleven percent of all private sector occupational injuries and illnesses. (See Lost-worktime Injuries and Illnesses: Characteristics and Resulting Time Away From Work, 2000, page 3.) This is a large number of cases, representing those MSDs with the most serious outcomes. Moreover, this total figure can be broken down and analyzed in many different ways using BLS's case characteristics. Thus, there is no need for a column to obtain useful data for MSDs, as there was for hearing loss cases.

OSHA does not believe that altering the definition used to trigger the column requirement would produce more useful data. As some, including the AFL-CIO, have observed, the § 1904.12 definition is similar in some ways to definitions OSHA has used in the past, and that BLS and other agencies now use. OSHA believes that this definition can be useful for some purposes. Different definitions might also be appropriate in some contexts. For example, in evaluating the effectiveness of an ergonomics program targeted to certain specific risk factors, it might be useful to define MSDs to include injuries likely to be caused by exposure to such factors. This is very different from using an MSD column to generate a single aggregate statistic. Regardless of how MSDs are defined for purposes of the OSHA recordkeeping rule, a column requirement would produce only an aggregate total of cases that could not be further analyzed for significance. No such statistic would be useful without a means of understanding and interpreting it.

Finally OSHA has considered whether the BLS survey should be modified to gather case-characteristic data for all recordable MSDs, regardless of type or severity. The Agency believes that it is reasonable for BLS to collect detailed characteristic data only for injuries and illnesses that result in days away from work at this time. BLS cannot collect comprehensive data on every aspect of every injury or illness. The current survey was designed and implemented with the support and assistance of the safety and health community and the 40 participating States to capture detailed information on the most severe cases. (See BLS Handbook of Methods, Ch. 9, Occupational Safety and Health Statistics) The statistical system, of which the survey is a part, fulfills the statutory requirement to “compile accurate statistics on work injuries and illnesses,” 29 U.S.C. 673, by producing data on the overall number and incidence rate of injuries and illnesses, by industry, and by providing detailed statistics on case characteristics of occupational injuries and illnesses, that result in days away from work, including MSDs, to assist in the understanding and prevention of these disabling cases. The system is not currently designed to gather separate statistics on the incidence rates of specific injuries or illnesses.

Nothing in the record demonstrates that BLS should treat MSDs differently from other injuries and illnesses by publishing separate statistics on all recordable cases of these disorders. OSHA does not believe that MSDs are fundamentally different, for statistical purposes, from bruises, cuts, lacerations, burns and other common injuries which may or may not result in days away from work depending on severity. As discussed above, the national statistics present a detailed picture of the MSD problem on a variety of levels. These data are both accurate and useful. Accordingly, OSHA concludes that there is no justification for the MSD column on the Log.

While the Agency concludes that the MSD column on the Log would not produce significantly more accurate or useful statistics, it is committed to exploring other means of improving the information available on MSDs and effectively utilizing this information to reduce ergonomic-related injuries and illnesses in the workplace. As part of the comprehensive approach for addressing MSD hazards, the Department has created the National Advisory Committee on Ergonomics (NACE) to advise the Assistant Secretary of Labor for Occupational Safety and Health on ergonomic guidelines, research, and outreach assistance. The Agency has indicated that it will seek advice from NACE in the following areas: (1) The development of various industry or task-specific guidelines; (2) identification of gaps in the existing research base related to applying ergonomic principles to the workplace; (3) current and projected research needs and efforts, including information provided by NIOSH; (4) methods of providing outreach and assistance that will communicate the value of ergonomics to employers and employees, and (5) ways to increase communication among stakeholders on the issue of ergonomics. As part of this effort, the Agency intends to seek input from NACE on how to characterize the variety of ergonomic-related injuries in the workplace in ways that will be most useful in helping employers and others to solve ergonomic problems. NACE's expertise will also be useful in advising the Agency on ways in which statistics on these injuries can be used effectively in developing guidelines and in providing outreach and assistance on ergonomics to employers, employees and stakeholders.

Having concluded that an MSD column on the Log is unnecessary, OSHA believes that section 1904.12 should be deleted. The sole purpose of that section was to establish the requirement for employers to check the MSD column for cases meeting the definition of MSD. In view of this determination, it is not necessary to consider whether the definition of MSD in § 1904.12 would be appropriate if a column were needed, or whether alternative definitions would be appropriate. The deletion of § 1904.12 relieves employers from the legal requirement to check the column; however, it has no effect on their obligation to record all cases meeting the requirements of §§ 1904.4-1904.7. In a related matter, some of the privacy provisions of Part 1904 relied upon the MSD definition from § 1904.12. Specifically, paragraph 1904.29(b)(7)(vi) of the rule states that employers must consider an illness case to be a privacy concern case, and withhold the employee's name from the forms, if the employee independently and voluntarily requests that his or her name not be entered on the Log. The second sentence of the paragraph states “[m]usculoskeletal disorders (MSDs) are not considered privacy concern cases.” Because § 1904.12 is being deleted, there is no basis to implement the requirement in § 1904.29(b)(7)(vi). Moreover, there was no explanation for the special privacy treatment accorded MSDs in the preamble to the 2001 rule. Accordingly, OSHA is deleting the MSD requirement in section 1904.29(b)(7)(vi) stating that MSD injuries and illnesses are not to be considered privacy concern cases. These cases are covered by the general rule on privacy cases. Therefore, when the employer has categorized the case as an occupational illness, and the employee independently and voluntarily requests that his or her name not be entered on the OSHA 300 Log, the case will be considered a privacy concern case.

This final rule deletes requirements contained in OSHA's January 19, 2001 final recordkeeping rule but never implemented. Therefore, this rule continues OSHA's current policies on recording of MSDs, and protecting employee privacy, resulting in no change in actual paperwork burden compared with current practice. While this final rule results in a minor saving in burden that would have been imposed, OSHA has not attempted to estimate the saving because the January 2001 rule contained no separate estimate of the burden associated with §§ 1904.12 and 1904.29(b)(7)(vi).

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), the Assistant Secretary certifies that the final rule will not have a significant economic impact on a substantial number of small entities. The rule deletes requirements that have not become effective, and adds no new requirements. The rule will impose no costs on the regulated public.

The 26 States and territories with their own OSHA-approved occupational safety and health plans must adopt a comparable regulation within six months of the publication date of this final regulation. These states and territories are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming. Connecticut, New Jersey, and New York have OSHA approved State Plans that apply to state and local government employees only.

This document has been deemed significant under Executive Order 12866 and has been reviewed by OMB.

This document was prepared under the direction of John Henshaw, Assistant Secretary for Occupational Safety and Health. It is issued under Section 8 of the Occupational Safety and Health Act (29 U.S.C. 657) and 5 U.S.C. 553.

We (MSHA) first consolidated our listing of OMB control numbers in a final rule published on June 29, 1995 (60 FR 33719). This action codified the OMB control numbers for our standards and regulations in one location to assist the public in quickly determining whether a specific information collection requirement was approved by OMB. Table 1 in 30 CFR 3.1 displays the OMB control number for each section containing a requirement for the collection, reporting, recordkeeping, or dissemination of information. This display fulfills the requirements of 44 U.S.C. 3507(f) of PRA 95 which prohibits an agency from engaging in a collection of information without displaying its OMB control number. Under PRA 95, a person is not required to respond to a collection of information if a valid OMB control number is not displayed.

This revision updates our current display of OMB control numbers to include new control numbers approved by OMB for regulations completed since the last update and any changes made through the renewal of previously issued OMB control numbers. There are no substantive changes or renewals made to information collection requirements by this technical amendment.

Information collection requirements go through the public review process as part of the rule to which they apply. Likewise, the renewal of an OMB control number also requires public review. As a result, we find that there is “good cause” under 5 U.S.C. 553(b)(B) of the Administrative Procedure Act (APA) to issue this technical amendment to Table 1 in 30 CFR part 3 without prior public notice and comment.

We also determined that there is no need to delay the effective date. The technical amendment contains no new requirements for which the public would need time, beyond that provided for in the regulation itself, to plan compliance. We find, therefore, there is “good cause” to except this action from the 30-day delayed effective date requirement under 5 U.S.C. 553(b)(B) of the Administrative Procedure Act.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard has not received any complaints or negative comments previously with regard to this event.

This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on recent accidents that have occurred in other Captain of the Port zones, and the explosive hazards of fireworks, the Captain of the Port Chicago has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.

The safety zone for the Taste of Chicago Fireworks will encompass all waters of Lake Michigan bounded by the arc of a circle with a 1000-foot radius with its center in the approximate position 41°52′7″ N, 087°35′65″ W. These coordinates are based upon the North American Datum 1983 (NAD 83).

All persons shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Chicago, or his designated on scene representative may be contacted via VHF Channel 16.

This temporary final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

This determination is based on the minimal time that vessels will be restricted from the zone and that the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this temporary final rule would have a significant impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities: the owners or operators of vessels intending to transit or anchor in a portion of Lake Michigan from 9 p.m. to 10 p.m., July 3, 2003. This regulation would not have a significant economic impact for the following reasons. The regulation is only in effect for one hour on one day. The designated area is being established to allow for maximum use of the waterway for commercial vessels to enjoy the fireworks display in a safe manner. In addition, commercial vessels transiting the area can transit around the area. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This temporary final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132, Federalism, and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This temporary final rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction Manual M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES .

We have analyzed this temporary final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The Office is increasing the integrity of its internal patent application record maintenance by adopting a new electronic data processing system for the storage and maintenance of all the records associated with patent applications. Because the system is consistent with the data processing system used by the European Patent Office (EPO), it will also improve information exchange among the intellectual property (IP) offices.

The system will use image technology to replace the standard paper processing of patent applications currently used in the Office. The paper components of the patent application file contents (including the specification, oath or declaration, drawings, information disclosure statements, amendments, Office actions, and file jacket notations) of pending applications will be scanned into electronic image files. Thereafter, all processing and examination by all Office personnel will be conducted with the electronic image files, instead of the paper source documents.

The system will affect applicants minimally during the patent application process, because the program affects internal operations and not external communications. Applicants may continue to send and receive correspondence in paper form, although the Office encourages use of the existing alternative electronic filing system resources for application filings and certain information disclosure statement submissions. The changes to the rules of practice in title 37 of the Code of Federal Regulations (CFR) are designed to improve internal operation by the use of the electronic image format, primarily by easing the requirements upon applicants in amendment practice and information disclosure statement submissions. The electronic nature of patent records will permit their viewing by the public through the Patent Application Information Retrieval (PAIR) system, which has a number of advantages: (1) It provides notice to applicants of certain examination processing activities ( e.g., mailing of Office actions); (2) it assures confidence in the integrity of the Office records; (3) it reduces the handling of the records; and (4) it allows parallel processing of the application by various parts of the Office.

The technology and procedures for the new system are similar to those used at the EPO, but adapted to the Office's legal requirements and existing computer systems. The Office announced a prototype program in December of 2002. See USPTO Announces Prototype of Image Processing, 1265 Off. Gaz. Pat. Office 87 (Dec. 17, 2002). The Office has incorporated the experience and lessons learned from this prototype program into a production system. See Notification of United States Patent and Trademark Office Patent Application Records being Stored and Processed in Electronic Form, 1271 Off. Gaz. Pat. Office 100 (June 17, 2003).

The electronic format of applications will reduce delays in moving information within the Office and between the Office, the applicant, other IP offices and other parties having authority to view the records. It will also reduce the potential for loss of records and misfiling, provide the capacity for multiple parties to access the records simultaneously, improve the efficiency of the publication process, and set the Office up for subsequent improvements in electronic communication related to applications between the Office, the applicant, and other parties.

It is also anticipated that the system will facilitate the sharing of information between the Office and other IP offices. The Office anticipates that agreements to electronically transmit priority documents to certain other IP offices as well as search results and other application information will be negotiated shortly. Transmission of priority documents electronically directly to the other IP offices on request of the applicant is anticipated to reduce the overall costs to the applicant and to the other IP offices (which would receive the certified copy in a format that is easily stored and retrieved on demand). In tandem with this effort is a parallel effort to promote the sharing of information ( e.g. , search results) concerning related applications by the various IP offices in order to reduce duplication of efforts, improve the efficiency and quality of examination efforts, and decrease workload. Thus, it is anticipated that the Office's migration to an electronic environment together with international negotiations will improve the efficiency and work quality of the Office.

Section 1.3 has been amended to provide that papers presented in violation of the decorum and courtesy requirements will not be entered. The Office is capturing electronic images of all documents (papers) that will be the official records of certain applications. If the Office has captured the image of a paper violating § 1.3 as an electronic sheet(s), the Office will electronically remove the document from the Official file (the collection of documents related to a patent application or patent and which would be in this instance an electronic file) and from the Office computer systems. If the application has not yet been captured as an image file, the paper will not be entered in the Official file (which would in this instance be a paper file). In either event, the Office will provide notice in the Official file that the paper will not be available to the public and send a decision to the applicant notifying the applicant of the non-entry. If the paper is intended as a reply to an Office action, the reply will not be considered a bona fide reply under § 1.135(c) and the period set in the prior Office action will continue to run.

Similarly, a paper submitted in violation of § 10.10(b) that is intended as a reply will not be entered in the Official file and will not be treated as an unsigned reply (nor as a signed reply) as is the current practice. Therefore, the reply will not toll the time period set in a prior Office action. The Office will provide notice of the non-entry to the applicant or patent owner.

Section 1.9 has been amended to clarify that the word “paper” and “papers” refer to a document or documents, which may be electronic records or physical paper sheet(s).

Section 1.14 explains that applications for patents are generally preserved in confidence, and sets forth the special circumstances (35 U.S.C. 122(a)) under which a member of the public may have information about, copies of, or access to a patent application. Section 1.14 has been revised to clarify the rule and to expand the rule to provide for electronic files.

Paragraph (a)(1) has been rewritten to list the records that may be made available. The term “file wrapper and contents” has been replaced with the term “file contents” to avoid confusion with the paper (non-electronic) file jacket and its contents. Paragraph (a)(1) rephrases the provisions of former §§ 1.14(c) and (e) to assist the public in understanding what applications may be made available to the public. Accordingly, § 1.14(a)(1), as rewritten, is divided into §§ 1.14(a)(1)(i) through (a)(1)(vii) listing different types of application files and explaining whether any part of the file contents may be made available to the public. For example, § 1.14(a)(1)(iii) explains that copies of published pending applications may be made available to the public, upon written request, and payment of the appropriate fee, and that the original paper file of the pending application that was published as a patent application publication is not available to the public. The explanation for when an application may be made available in § 1.14(a)(1)(iv) rephrases the “referred to” provision of former § 1.14(e)(2) with “identified or relied upon” and adds a definition of “identified” that conforms with current Office policy interpreting “referred to.” An application is “referred to” when it is identified by application number or serial number and filing date, first named inventor, title and filing date or other application specific information are provided in the text. In addition, in the new § 1.14(a)(1)(v) where the benefit of a pending application is relied upon pursuant to 35 U.S.C. 119(e), 120, 121 or 365 in certain applications, copies of the application file contents may be made available in the same manner that copies of the application would have been had the application been published as a U.S. patent application publication (§ 1.14(a)(1)(iii)). As a result of this change to § 1.14, if an application is a continuation of an earlier application, and the Office publishes the continuation as a patent application publication but without an identification of the earlier application in the published document, a copy of the file contents of the earlier-filed application may be made available to the public, upon payment of the required fee for a copy, if the application is still pending. This is because the Office (PALM) records for continuation applications, which are available to the public following publication, will indicate the status as a continuation and information about the earlier application.

Paragraph (a)(2) has been revised to combine and restate former §§ 1.14(a)(1) and (b) which address status information. The application number of any application that claims the benefit of the filing date of a patent or an application that has been published may be obtained from the PAIR system on the Office's Internet Web site at: http://pair.uspto.gov.

Section 1.14 is also amended to have a new § 1.14(b), to explain that electronic access may be provided to all or part of certain applications. Following migration to an electronic image file as the Official file of patent applications, access will be provided solely to the electronic Official file and not to the original paper document sheets used to create electronic images within the Official file.

Section 1.14(c) is the same as former § 1.14(d). Paragraph (d) of former § 1.14 has been redesignated as § 1.14(c).

Section 1.14(d) is the same as former § 1.14(f). Paragraph (f) of former § 1.14 has been redesignated as § 1.14(d).

Section 1.14(e) is the same as former § 1.14(g). Paragraph (g) of former § 1.14 has been redesignated as § 1.14(e). On reconsideration, the changes proposed in § 1.14(f)(1) and (2) were not necessary to implement an image file wrapper system. The proposed changes, including the public comments, may be reconsidered in the future.

Section 1.14(f) is the same as former § 1.14(h). Paragraph (h) of former § 1.14 has been redesignated as § 1.14(f).

Section 1.14(g) of § 1.14 corresponds to former § 1.14(i), and is further amended to explain the meaning of the terms “Home Copy,” “Search Copy,” and “Examination Copy,” and by inserting “of a publication” after “English language translation” in § 1.14(g)(2). Section 13204 of Public Law 107-273 made a technical change to the provisional rights provisions of the patent statute as to international applications to clarify that a translation of the international publication, as opposed to the international application, is required to be filed in order for a patent owner to obtain provisional rights pursuant to 35 U.S.C. 154(d). In view of this change to the statute, the corresponding reference to the translation in § 1.14 is changed to add “a publication of an international patent application” after “English language translation of.” In addition, the parenthetical phrase at the end of § 1.14(g)(1), referencing the fee for a copy of an international application file, or a copy of a document in a file, has been changed from a reference to § 1.19(b) rather than § 1.19(b)(2) or § 1.19(b)(3), the fees for the contents of a file or a CD, and the parenthetical phrase at the end of § 1.14(g)(2), referencing the fee for a copy of an English language translation in a file, has been corrected to refer to § 1.19(b)(4), the fee for a document, rather than § 1.19(b)(2) or § 1.19(b)(3).

Section 1.14(h) is the same as former § 1.14(j). Paragraph (j) of former § 1.14 has been redesignated as § 1.14(h).

The changes that had been proposed in 1.14(e) have been postponed pending successful negotiation and implementation of agreements with other IP offices to provide for electronic document exchange. The Office will at that time publish a final rule amending § 1.14 to provide for an applicant to provide consent (if the application is being maintained in confidence under 35 U.S.C. 122(a) and § 1.14) to electronic document exchange of the applications with the IP offices with which the Office has such an agreement.

Section 1.17 has been amended to eliminate the reference to returning information that has been expunged in § 1.17(h) because expunged information need not be returned under § 1.59 as amended.

The proposed changes to § 1.19 to eliminate the required fee for providing a copy of an application as filed to certain other IP offices following an agreement with other IP offices to electronically share such document has been postponed pending successful implementation of such agreements. The Office will at that time publish a final rule amending § 1.19 to eliminate its fee for applicants who consent to electronic document exchange of the applications with the IP offices with which the Office has such an agreement.

Section 1.52 has been amended to clarify the requirement for proper paper sizes in paper communications submitted to the Office and to set forth the analogous requirements for electronic communications.

The Office plans to capture electronic images of all documents that form the record of patent application examination. These images will form the Official file of the application. See Notification of United States Patent and Trademark Office Patent Application Records being Stored and Processed in Electronic Form, 1271 Off. Gaz. Pat. Office at 100. Applicants will have the option of submitting application documents and other communications to the Office on paper, by facsimile transmission, or via the Office's electronic filing system (EFS). The existing requirements for paper and facsimile submissions (as well as the prohibition against filing patent applications by facsimile, see § 1.6(d)(3)) are retained, and the requirements for electronic submissions are added. One newly added requirement for paper submissions requires that the papers not be permanently bound because the papers must be readily separable for scanned entry into the image system. The use of binder clips or standard office staples will generally be acceptable. The detailed requirements for electronic submissions are provided in the Office's EFS documentation (available electronically at http://www.uspto.gov ) and the proposed amendments direct the affected party's attention to those requirements.

Paragraph (a)(1) of § 1.52 has been amended to clarify that it pertains to paper and facsimile submissions, and that such submissions must not be permanently bound together. Correspondence may include multiple papers each of which may be on either 21.6 cm by 27.9 cm (8 1/2 by 11 inch) or 21.0 cm by 29.7 cm (DIN size A4) paper. For example, a transmittal letter and Information Disclosure Statement (IDS) on 21.6 cm by 27.9 cm (8 1/2 by 11 inch) paper accompanied by copies of cited references on 21.0 cm by 29.7 cm (DIN size A4) paper is permitted.

Paragraph (a)(2) of § 1.52 has been amended to clarify that it pertains to paper and facsimile submissions.

Paragraph (a)(5) of § 1.52 has been amended to clarify that it pertains to paper and facsimile submissions.

Paragraph (a) of § 1.52 has also been amended by adding §§ 1.52(a)(6) and (a)(7) to set forth that papers submitted electronically must comply with the Office's EFS requirements and that failure to comply will result in a requirement for correction.

Paragraphs (b)(3) and (b)(4) of § 1.52 have been amended to clarify that the requirements for the abstract and claims to begin on a separate sheet on physical paper are similarly required to begin on a separate electronic page in an electronic submission.

Paragraph (b)(7) of § 1.52 has been amended to explain the consequences of a failure to provide compliant papers within the set time period. That is, § 1.52(b)(7) provides that compliant papers must be provided within the set time period in order to avoid abandonment of the application in the case of an applicant for patent, termination of proceedings in the case of a patent owner in a reexamination proceeding, or refusal of consideration of the papers in the case of a third party requester in a reexamination proceeding.

Section 1.59 has been amended to eliminate references to returning documents that have been expunged to recognize that, with electronic Official files, there will be nothing to return when a paper is expunged. The Office is capturing electronic images of all documents that form the Official file. Where the image is generated from a physical source document, the originating document may be disposed of once the electronic image accuracy is verified. The paper source document will eventually be destroyed under a United States National Archives and Records Administration (NARA) approved schedule. Therefore, if a document is to be expunged from the record, the only operation that will be required will be removal of the image from the Official file.

Paragraph (a)(1) of § 1.59 has been amended by deleting the phrase “and returned” from the first sentence, and deleting the second sentence.

Paragraph (b) of § 1.59 has been amended by deleting the phrase “and return” from each of the first and second sentences. The Office will continue to provide notice in the Official file that a paper has been expunged and the Office will send a decision to the applicant notifying the applicant that the paper has been expunged.

Section 1.71 has been amended by adding a new § 1.71(f) to require that the first page of a specification commence on a new sheet and to require that no sheet including part of the text of the specification include any other material. Further, the claims, abstract or sequence listing (if any) should not be included on any sheet including any other part of the specification. A title of the invention if it is provided as a heading on the first page of the specification is considered part of the specification.

Paragraph (b) of § 1.72 has been amended to prohibit the paper presenting the abstract to include any other portions of the application or other material. Presentation of material other than the abstract on the same page as the abstract makes the electronic indexing of the application more difficult. In addition, the last sentence of § 1.72(b) has been removed to eliminate the prohibition on using the abstract to interpret the claims to conform the rule to be consistent with Federal Circuit case law. See Hill-Rom Co. versus Kinetic Concepts, Inc., 209 F.3d 1337, 1341 n.*, 54 USPQ2d 1437, 1440 n.1 (Fed. Cir. 2000).

Paragraph (h) of § 1.75 has been amended to prohibit a paper presenting claims from including any other portions of the application or other material. Presentation of material other than the claims on the same page as one or more claims makes the electronic indexing of the application more difficult.

Section 1.98 has been amended by adding a new § 1.98(e), which provides that the requirement in § 1.98(a)(2)(i) for a copy of all listed U.S. patents and U.S. patent application publications does not apply to any IDS submitted in compliance with the Office's electronic filing system. Thus, for any IDS submitted to the Office via the Office's EFS, paper copies of U.S. patents and U.S. application publications cited in the IDS will no longer have to be supplied by applicants.

An EFS software upgrade has added an IDS, submitted under the provisions of §§ 1.97 and 1.98, as a type of electronic submission that may be made via the Office's EFS. See Legal Framework for the Use of the Electronic Filing System, 1263 Off. Gaz. Pat. Office 60, 61 (Oct. 8, 2002). With the EFS software upgrade, an applicant is able to electronically transmit an IDS with the filing of a new utility patent application, or as a subsequent filing. This EFS software upgrade is NOT usable for third party information disclosure submissions under § 1.99. The IDS submission via EFS is the only electronic substitute for a paper IDS submission contemplated. EFS has been available to the general public for limited electronic filing since October 2000. See Electronic Filing System Available to Public, 1240 Off. Gaz. Pat. Office 45 (Nov. 14, 2000).

Applicants may file an IDS via EFS by: (1) Entering the references' citation information in a fillable electronic form, equivalent to the paper PTO-1449 form (or revised form PTO/SB/08A and 08B) by using EFS software; and (2) transmitting the fillable electronic form data to the Office via EFS. This electronic EFS form currently allows only citations for U.S. patents and U.S. patent application publications. If any references to foreign patent documents or non-patent literature documents or unpublished U.S. applications are to be cited, then applicants will continue to submit those citations on a separate, conventional paper PTO-1449 form (or equivalent form) delivered with a printed copy of each cited foreign patent document, non-patent literature document and unpublished U.S. application via mail, facsimile transmission, or hand delivery. In those instances in which an applicant sends an IDS on the same day by EFS and by conventional delivery, and a fee under § 1.97 is due, only one fee will be due if the applicant informs the Office in the conventional submission that such a submission is associated with an electronic submission on the same day in which the fee was paid.

The EFS software provides a fillable electronic IDS form equivalent to a paper PTO-1449, Information Disclosure Statement form, in which citations for up to fifty U.S. patents and up to fifty U.S. patent application publications may be entered. This EFS fillable form has fields where statements of relevance and where notifications that the documents were cited in a communication from a foreign patent Office in accordance with § 1.97(e) may be given. The EFS upgrade validates the format of data entered into the fillable electronic IDS form and provides the means to specify whether this fillable EFS IDS form is to be linked to an accompanying new application filing or is being filed in a previously filed application, and transmit the XML formatted IDS data on the fillable electronic form to the Office. The EFS software also provides fields to enter required fee payment information under §§ 1.97(c)(2) and (d)(2).

The fillable, EFS IDS form will be entered as a paper (but will actually be part of an electronic database) in the application file contents indicating that it was received on the date the complete transmission containing the form was received in the Office via EFS. This is the date the Office will refer to in considering compliance with § 1.97.

Examiners will consider the U.S. patents and U.S. application publications cited on an EFS transmitted IDS form provided the remaining requirements of §§ 1.97 and 1.98 are met, by reviewing electronic or printed copies produced from the Office's electronic databases. It will be most important that the cited patent and application publication numbers be accurate and devoid of transcription error. There will be no applicant-provided copies of the disclosed documents in the application file for the examiner to review. Instead, because the Office will electronically retrieve the patents and application publications so identified by those numbers, the examiner will only be able to consider the documents so identified. As a corollary, examiners will only consider what is actually cited. Where, for example, an error is made in transcribing a U.S. patent number, and the examiner, after retrieving the patent associated with the number as entered in the IDS, determines that the patent associated with the number as entered in the IDS is not the correct number, because the inventor's name and issue date entered in the IDS does not match the corresponding data on the patent associated with the patent number entered in the IDS, the examiner will follow the procedure regarding the handling of non-complying information disclosure statements set forth in § 609 III(C)(1) of the Manual of Patent Examining Procedure (8th ed. 2001) (Rev. 1, Feb. 2003) (MPEP). The examiner may either initial next to the citation on the listing of references to indicate that the erroneously cited patent has been reviewed or line through the citation as not in compliance with § 1.98.

The only procedure for having such documents considered when an erroneous patent or application publication number is cited in an eIDS will be by citing the correct document identifying number in a subsequent IDS, either paper or electronic, that conforms to the requirements of §§ 1.97 and 1.98, as specified in MPEP § 609 III(C)(1) regarding corrections of the information in non-complying information disclosure statements.

The IDS may be submitted as part of an EFS electronic application filing, or subsequent to an application filing, either in paper or via EFS. The ePAVE program will prompt the filer to associate an IDS file with a new application file and to provide payment information, where either is appropriate. As with the other types of electronic submissions, ePAVE will validate the format, display it to the filer, prompt for the filer's electronic signature, use the filer's digital certificate (an appropriate digital certificate may be obtained from the Office's Electronic Business Center) to encrypt the whole package, and transmit the submission to the Office. Upon receipt, the Office will send to the filer an electronic “Acknowledgment Receipt,” including a server date stamp, a unique server number, the application number, and confirmation of the number of the files received by the Office. If the IDS submission is subsequent to the application filing, the filer will be required to enter both an application number and a confirmation number. A confirmation number is an additional four-digit identifier assigned to an application, and can be found in the upper left-hand corner of the official filing receipt. A filer will be required to have a customer number, obtained from the Office's Electronic Business Center, and an Office provided digital certificate to use EFS as with current practice.

Section 1.99 has been amended to provide that the Office will not enter any explanation of the patents or publications, or any other information (that is not limited to patents or publications) included in a submission. The Office will also not enter a submission that is not in compliance with the requirements of § 1.99. The Office is capturing electronic images of all documents that form the Official file of certain applications and the original paper documents, if stored, will be stored off-site and will not be easily accessible, and if destroyed, will not be available. Therefore, any submission, or part of the submission, that is not in compliance with § 1.99 would not be captured as electronic images and, if such documents have been entered into the Official file, the Office will electronically remove the documents from the Official file.

Paragraph (d) of § 1.99 has been amended by deleting the word “dispose of” and replacing it with “not enter.” Paragraph (e) of § 1.99 has been amended by deleting the phrase “returned or discarded” and replacing it with “will not be entered.”

The manner of making amendments to the specification, claims and drawings in non-reissue applications has been revised to permit greater navigational control during examination in an image file wrapper environment.

Paragraph (b) continues to provide the manner of making amendments to the specification and further provides that its provisions do not apply to making amendments to the claims, computer listings or sequence listings. Paragraph (b) has been revised to require a particular format of marking to show changes and also to eliminate the requirement to provide a clean copy of any revised paragraph or section.

Paragraph (b)(1) provides the manner of making an amendment to delete, add or replace a paragraph. It also explicitly provides that amendments to section headings or the title of the invention are to be made as if the section heading or title were a paragraph.

Paragraph (b)(1)(i) continues to require that an amendment include an instruction that unambiguously identifies the location, in the specification, of the paragraph to be deleted or replaced, or where a new paragraph is to be added.

Paragraph (b)(1)(ii) provides that any replacement paragraph must include markings to show all changes relative to the immediate prior version of the paragraph. Added subject matter must be shown by underlining the added text. If any paragraph is being marked-up to show added subject matter and at least part of the added subject matter is to be underlined itself following entry, then the subject matter intended to include underlining that is being added may be shown by double underlining that part of the added text. Deleted subject matter must be shown by striking through the deleted text with two exceptions: (1) For deletion of five characters or fewer, double brackets may be used ( e.g. , [[eroor]]; and (2) if strike-through cannot be easily perceived ( e.g. , deletion of the number “4” or certain punctuation marks), double brackets must be used ( e.g. , [[4]]). As an alternative to using double brackets, however, extra portions of text may be included before and after text being deleted, all in strike-through, followed by including and underlining the extra text with the desired change. The requirement to provide a clean version of the replacement paragraph has been eliminated. Examples of typical amendments in the revised practice will be available on the Office's Internet Web site ( http://www.uspto.gov ).

Recognizing that some word processing software will automatically generate a vertical line in the margin adjacent marked-up changes, the Office will not object to the inclusion of a vertical line in the margin of amendments to the specification or claims. As an alternative to providing an amendment to the first line of the specification to make the reference required by § 1.78 to claim the benefit of a prior application, the Office will continue the practice under § 1.76 to accept an application data sheet that includes the required reference in § 1.78 to claim the benefit of a prior application.

Paragraph (b)(1)(iii) provides that when a paragraph is added to the specification, the text of the new paragraph must not be underlined.

Paragraph (b)(1)(iv) provides that the amendment paper must not include a marked-up version of a deleted paragraph. Where applicant has used the optional paragraph numbering system set forth in § 1.52(b)(6), an appropriate instruction to delete a paragraph would be “Please delete paragraph 0016.” Applicants may also include the first and/or last few words of a paragraph to uniquely identify the paragraph to be deleted. An appropriate instruction would be “Please delete the paragraph beginning ‘Potash may be obtained’ on page 16.”

Paragraph (b)(2)(i) continues to require that an amendment include an instruction which unambiguously identifies the section heading of the section of the specification being replaced.

Paragraph (b)(2)(ii), like its counterpart paragraph (b)(1)(ii), has been revised to require that any replacement section must include markings to show all changes relative to the immediate prior version of the section. Added subject matter must be shown by underlining the added text. If the replacement section being marked-up to show added subject matter and at least part of the added subject matter is to be underlined itself following entry, then the subject matter intended to include underlining that is being added may be shown by double underlining that part of the added text. Deleted subject matter must be shown by striking through the deleted text with two exceptions: (1) for deletion of five characters or fewer, double brackets may be used ( e.g. , [[eroor]]; and (2) if strike-through cannot be easily perceived ( e.g. , deletion of the number “4” or certain punctuation marks), double brackets must be used ( e.g. , [[4]]). As an alternative to using double brackets, however, extra portions of text may be included before and after text being deleted, all in strike-through, followed by including and underlining the extra text with the desired change. Recognizing that some word processing software will automatically generate a vertical line in the margin opposite marked-up changes, the Office will not object to the inclusion of a vertical line in the margin of amendments to the specification or claims. Paragraph (b)(2)(ii) has also been revised to eliminate the requirement to provide a clean version of the replacement section. Examples of typical amendments in the revised practice will be available on the Office's Internet Web site ( http://www.uspto.gov ).

Amendments to the abstract of the disclosure should be included in that portion of applicant's amendment document which presents amendments to the specification. Where the amendments to the abstract are minor in nature, i.e. , purely grammatical in nature or a limited number of additions or deletions of subject matter are presented, the abstract should be provided as a marked-up version using strike-through and underlining as the methods to show all changes relative to the immediate prior version. Where the abstract is being substantially rewritten and the amended abstract bears little or no resemblance to the previously filed version of the abstract, a new (substitute) abstract may be provided in clean form accompanied by an instruction for the cancellation of the previous version of the abstract. The text of the new abstract must not be underlined. It would be counterproductive for applicant to prepare and provide an abstract so riddled with strike-through and underlining that its meaning and language are obscured from view and comprehension. Whether supplying a marked-up version of a previous abstract or a clean form new abstract, the abstract must still comply with § 1.72(b) requirements regarding length and placement of the abstract on a separate sheet of paper.

Paragraph (b)(3) has been rewritten to reflect a concurrent revision to § 1.125. Although the requirement for a clean form, or version without markings, of a replacement paragraph or section of the specification has been eliminated, the Office maintains the need for a clean form and a marked-up version of a substitute specification. Since substitute specifications generally include many changes, the clean version will assist the examiner to view the substitute specification without distractions from the markings. The marked-up version will assist the examiner in readily ascertaining those changes being made and to alert the examiner to the presence of any new matter. Amendment by substitute specification is permissible where, as set forth in § 1.121(b)(3)(i), an instruction to replace the specification is submitted and, as set forth in § 1.121(b)(3)(ii), the substitute specification is provided in compliance with §§ 1.125(b) and (c). Section 1.125(b) continues to require that a substitute specification be accompanied by a statement that it includes no new matter. Section 1.125(c) now requires that two versions of the substitute specification be provided. One version must be submitted with markings showing all changes (strike-through, or in some cases double brackets, indicating subject matter being deleted and underlining indicating subject matter being added) relative to the immediate prior version of the specification of record. An accompanying clean version (without markings) must also be supplied.

Strike-through and underlining features are available in most, if not all, commercially available word processing systems. Often times these features are located and activated through a “format” menu, which allows the user to create text, which is struck through or underlined, or highlight text already presented. In the latter case, previously presented text may be selected and strike-through or underlining engaged such that the text is marked in the desired fashion. Additionally, some word processing systems offer editorial tools that permit a user to automatically “track changes” made when editing a document. These editorial tools frequently use strike-through as the manner in which to indicate deleted subject matter and underlining as the manner in which to indicate added subject matter. To clearly identify a line or a section of a document in which changes have been made, these editorial tools may place a vertical line in the left or right margin of the document directly adjacent to the line or section of text in which the changes occur. The presence of such vertical lines in the left or right margin of a replacement paragraph or section of the specification or a marked-up version of a substitute specification is acceptable.

Deleted subject matter may also be indicated in some circumstances by double brackets placed at the beginning and the end of the deleted text. Double brackets must be used if the deleted text would not be easily perceived using strike-through. For example, changing “4 corners” to “three corners” should be indicated by “ three [[4]] corners” rather than “ three 4 corners” (the strike-through being obscured by the horizontal line in the “4”). Double brackets may also be used to indicate the deletion of five or fewer consecutive characters. Alternatively, the use of strike-through and/or underlining to show the deletion and/or addition of punctuation marks or difficult to perceive characters may, in the replacement paragraph or rewritten claim, encompass portions of text before and after the punctuation marks or characters. Examples of typical amendments in the revised format will be available on the Office's Internet Web site ( http://www.uspto.gov ).

The prior requirement made in §§ 1.121(b)(1)(ii) and (b)(2)(ii) to provide a clean form, or version without markings, of a replacement paragraph or section to the specification has been eliminated.

Paragraph (b)(4) remains unchanged.

New § 1.121(b)(5) has been added to provide that once a paragraph, section, or specification is amended in a first amendment document, re-presentation of the amended material in subsequent amendment documents is not necessary unless it is amended again or a substitute specification is provided.

Paragraphs (c)(1) through (c)(3) have been replaced with revised §§ 1.121(c) and (c)(1) through (c)(5). Paragraph (c) as revised provides for a total rewriting of a claim each time the claim is amended, including markings to show the changes being made relative to the immediate prior version of the claim, except when the claim is being canceled. Section 1.121(c) also requires submitting a complete listing of all claims ever presented, including the text of all pending and withdrawn claims, and the status of each and every claim in every amendment document that includes an amendment to the claims. This listing, if entered, replaces all prior versions of the claims in the application. Inclusion of the claim status is required for each claim in each claim listing and must be indicated in a parenthetical expression following the claim number. The status of all claims in the application, even those previously canceled or withdrawn, must be indicated in the claim listing.

The status of each claim included in the claim listing must be described by one of the following seven defined identifiers in parentheses after the claim number:

The status identifier “previously presented” must be used in those circumstances where: (1) A claim has been previously presented as “new” in a prior amendment document and entry of the claim is certain; and (2) a claim has been previously presented as “currently amended” in a prior amendment document. “Previously presented” should not be used for a claim which was previously presented in a prior amendment document, most particularly an after final amendment, and entry of the claim was denied or applicant is uncertain at the present time whether or not the claim has been approved for entry. The status of “not entered” should be used for such claims. It is foreseen that the latter described scenario could occur in those situations where a first after final amendment has been filed and applicant desires to file a second after final amendment prior to receiving a notice of allowance or an advisory action notifying the applicant whether or not claims presented or amended in the first after final amendment have been entered. Thus, the status of “not entered” should be used for claims which have not been approved for entry, or if it is not known if they have been approved for entry.

Patent Cooperation Treaty (PCT) amendment procedures ( i.e. , PCT Articles 19 and 34(2)(b)) are applicable during the international stage of an international application, and thus status identifiers are not to be used during the international stage. During the national stage (pursuant to 35 U.S.C. 371), amendment rules under § 1.121 apply to preliminary and subsequent amendments. When submitting these amendments in national stage, a claim listing is required with status identifiers indicated in a parenthetical expression following the claim number. The status identifier may indicate that claims were “original,” “previously presented,” or “canceled” based on changes made during the international stage. More specifically, in an amendment under § 1.121 in national stage, the status identifier “original” must be used for claims that had been presented on or by the international filing date and not modified or canceled. The status identifier “previously presented” must be used in any amendment submitted during national stage for all claims added or modified under PCT Articles 19 or 34 in the international stage that were subsequently entered in the national stage. Similarly, the status identifier “canceled” must be used in any amendment submitted during national stage for any claims canceled under an Article 19 or 34 amendment in the international stage that was subsequently entered in the national stage. If the amendment under § 1.121 in the national stage is making a change in a claim, the status identifier “currently amended” must be used for that claim.

The Office will continue the current practice of entering all previously filed unentered after final amendments and amendments filed with a request for continued examination (RCE) under § 1.114, unless applicant instructs otherwise. Absent specific instructions for entry, these amendments will be entered in the order in which they were filed. See MPEP § 706.07(h) (page 700-85). The claim listing in the most recent amendment will be used as the current claim listing. When applicant submits an amendment after final or an amendment with an RCE, the markings in the text of the claims should be made relative to the claims of the last entered amendment (or the original claims if no amendments have been entered). When filing an RCE, applicants are encouraged to present a comprehensive amendment that includes all of the desired changes previously presented in the unentered after final amendments along with specific instructions not to enter the after final amendments.

When claims are added, they must be numbered consecutively beginning with the number next following the highest numbered claim previously presented, whether entered or not. See § 1.126. Therefore, the claim listing in any after final amendment, or amendment filed with an RCE, should include the claim number(s) for any unentered new claims submitted in a previously filed after final amendment, the status identifier should be indicated as (not entered) and the text of such claims must not be presented. Consecutive unentered claims may be aggregated into one line ( e.g. , claims 20-25 (not entered)) in the claim listing. If applicant wishes to represent the previously submitted but unentered new claims, the claim listing must include the new claims with claim numbers beginning with the number next following the highest numbered claim previously presented. The new claims must include the status identifier “new” and the text of the new claims.

The Office will also continue the current practice of entering unentered after final amendments that the examiner has indicated would be entered upon the filing of an appeal. Absent specific instructions for entry, these amendments will be entered in the order in which they were filed. The claim listing in the most recent amendment will be used as the current claim listing.

Combining the status identifiers (withdrawn) and (currently amended) into a single status identification, e.g. , (withdrawn—currently amended), may be used in those situations where a claim has been previously withdrawn as non-elected but applicant wishes to amend the claim in an effort to rejoin the withdrawn (non-elected) claim with the elected invention. In all other situations only a single status identifier may be used.

As a result of the changes to § 1.121, each amendment document will be self-contained, as it sets forth a complete listing of all claims, including the text of all pending claims, for examination and provides the status of all of the claims in one location in the file.

Paragraph (c)(1) provides for the presentation of the claims in ascending numerical order. This prevents the grouping of claims by status (all “new” claims together, all “currently amended” claims together, etc.), and ensures a complete listing of all claims in numerical order, regardless of status. Consecutive “canceled” or “not entered” claims, however, may be aggregated ( e.g. , “Claims 1-5 (canceled)”). Further, paragraph (c)(1) requires that any sheet of an amendment paper including part of the text of a claim shall not include material directed to any other part of the amendment or any remarks concerning the claims. In other words, the complete listing of all of the claims must commence on a separate sheet of the amendment document. This requirement facilitates indexing of the application papers.

Paragraph (c)(2) requires that markings be provided in claims to show the addition or deletion of subject matter. Added subject matter must be shown by underlining. If any claim is being marked-up to show added subject matter and at least part of the added subject matter is to be underlined itself following entry, then the subject matter intended to include underlining that is being added may be shown by double underlining that part of the added text. Deleted subject matter must be shown by striking through the deleted text with two exceptions: (1) For deletion of five characters or fewer, double brackets may be used ( e.g. , [[eroor]]; and (2) if strike-through cannot be easily perceived ( e.g. , deletion of the number “4” or certain punctuation marks), double brackets must be used ( e.g. , [[4]]). As an alternative to using double brackets, however, extra portions of text may be included before and after text being deleted, all in strike-through, followed by including and underlining the extra text with the desired change. This section eliminates the previously accepted use of equivalent marking systems. No other methods of markings or comparison (other than underlining, strike-though or double brackets) are permitted. Only claims of the status “currently amended,” or “withdrawn” if also being amended, shall include markings showing changes made. Examples of typical amendments in the revised format will be available on the Office's Internet Web site ( http://www.uspto.gov ).

Paragraph (c)(3) requires that the current amendment document also include the submission of a clean version, i.e. , without any markings in the presentation of text, of all pending and withdrawn claims not being amended, but being included as part of the claim listing in the current amendment document. The presentation of a clean version in any “original,” “previously presented,” or “withdrawn” claim constitutes an assertion that it has not been changed relative to the immediate prior version except to omit markings that may have been present in the immediate prior version of the claims of the (current) status of withdrawn or previously presented. This relieves the Office of the burden of cross-reading various versions of the same claim to ensure accuracy of rewritten claims. Any claims added by amendment must be indicated with the status of “new,” presented in clean version, and shall not be underlined.

Paragraphs (c)(4)(i) and (ii) set forth when claim text must not be presented and that cancellation of any claim is effected by mere instructions to cancel. Alternatively, identifying the status of a claim in the complete listing of all claims as “canceled” will constitute an instruction to cancel the claim. The text of “canceled” and “not entered” claims must not be presented; and these claims must be indicated as being in the status of “canceled” or “not entered,” respectively.

Paragraph (c)(5) requires that a claim canceled in its entirety can only be reinstated if presented as a new claim with a new claim number.

Paragraph (d) requires that any drawing changes be submitted in compliance with § 1.84 on replacement sheets as an attachment to an amendment document. An accompanying detailed explanation of all of the changes should be provided on a separate sheet in the drawing amendments or remarks section of the amendment document. A marked-up copy of one or more of the figures being amended, with annotations, may also be included to provide further explanation of the changes made. The marked-up version must be labeled as “Annotated marked-up Drawings.” Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even though only one figure may be amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. The replacement sheet(s) should be labeled “Replacement Sheet” in the page header (as per § 1.84(c)) so as not to obstruct any portion of the drawing figures. If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. No further drawing submission of the amended drawing figure(s) by applicant would be required, unless applicant is so notified.

In order to bring § 1.121(g) into conformity with earlier changes, “(c)(1)” is changed to “(c) and (c)(1) through (c)(5).”

A new § 1.121(h) has been inserted to require that each section of an amendment ( e.g. , amendments to the claims, amendments to the specification, replacement drawings, remarks) begin on a separate sheet of the amendment paper.

Previous §§ 1.121(h), (i), and (j) have been redesignated as §§ 1.121(i), (j), and (k), respectively.

Paragraph (b) has been revised to add a cross-reference to § 1.312 to remind applicants that for submissions of substitute specifications filed after the notice of allowance has been mailed and up to the time of payment of the issue fee, entry of the substitute specification is not a matter of right.

Paragraph (c) of § 1.125 has been revised to require the presentation by applicant of both a marked-up version of the specification (using strike-through or in some circumstances double brackets to indicate deleted subject matter and underlining to indicate added subject matter) and a clean version without markings. Deleted subject matter must be shown by striking through the deleted text or, in some cases, placing double brackets at the beginning and the end of the deleted text. Double brackets must be used if the deleted text would not be easily perceived using strike-through, such as, the deletion of a punctuation mark or a number. Double brackets may also be used to indicate the deletion of five or fewer consecutive characters. Examples of typical amendments in the revised format will be available on the Office's Internet Web site ( http://www.uspto.gov ).

Current § 1.173(b)(3) is being replaced by §§ 1.173(b)(3), (3)(i) and(3)(ii) as a conforming amendment, in order to provide consistency between utility and reissue drawing practice.

Section 1.823 has been amended by revising § 1.823(a)(1) to require that any sheet including a part of a sequence listing not include material other than part of a sequence listing. This change is to facilitate indexing of the specification.

The Office published a notice proposing changes to the rules of practice to implement electronic maintenance of official patent application records. See Changes to Implement Electronic Maintenance of Official Patent Application Records , 68 FR 14365 (Mar. 24, 2003), 1269 Off. Gaz. Pat. Office 166 (Apr. 22, 2003) (proposed rule). The Office received twenty written comments (from Intellectual Property Organizations, Law Firms, and Patent Practitioners) in response to this notice. Comments generally in support of a change are not discussed. The comments and the Office's responses to those comments follow:

Comment 1 : A number of comments questioned if the Office, after making the proposed change in § 1.3, would continue its practice of providing notice to an applicant, patent owner or third party requester when a paper submitted by that party constituted a failure of proper decorum and courtesy.

Response : The Office will continue to provide written notice that a paper submitted by a party to the Office constitutes a failure of proper decorum and courtesy. Following the mailing of the written notice, the paper will no longer be retained in the public electronic image file wrapper. The paper version will eventually be destroyed under a NARA approved schedule. The Office has also amended § 1.3 to provide that notice of non-entry will be provided.

Comment 2 : One comment indicated that there was no reasonable basis for the proposed change to § 1.3.

Response : It is noted that following transition to an image file wrapper environment, the physical paper constituting a failure of proper decorum and courtesy will either have been previously physically destroyed or will be in a temporary storage facility arranged by date order of scanning. Therefore, the Office will be unable to provide the document or, if the document is still in temporary storage, would incur unnecessary costs and delays to provide the physical paper document.

Comment 3 : One comment indicated that the proposed change to § 1.9 to add a new § 1.9 (R) should be revised to indicate that a new § 1.9 “k” has been added.

Response: The comment has been adopted. The rule has been revised to add a new § 1.9 “k” rather than a § 1.9 (R).

Comment 4: As to § 1.14(a), two responses suggested expanding the applications that are available to the public without a petition for access to also include unpublished pending applications that are either incorporated by reference in certain documents or relied upon under 35 U.S.C. 119(e), 120, 121 or 365 by an application that has issued as a U.S. patent or in an application that has published as a statutory invention registration, or with effect as a U.S. application. One comment stated that since almost ninety percent of pending U.S. applications are now published, there is no sound public policy or unusual Office burden that should prevent public access to these unpublished pending applications, and argued that these unpublished pending applications can be an essential source of prosecution history that is necessary, for example, to interpret the scope of claims in a patent that relies on the unpublished pending application for filing date benefit.

Response: The comment that pending applications that are relied upon under 35 U.S.C. 119(e), 120, 121 or 365 should be more readily available to the public has been adopted, but the limited access to applications that are incorporated by reference remains. Accordingly, proposed § 1.14(a)(1)(v) (which address unpublished pending applications) has been separated into §§ 1.14(a)(1)(v) (for benefit situations) and (vi) (for incorporation by reference or otherwise identified situations). A copy of the application as originally filed, the file contents, or any document in the file of an unpublished pending application that is relied upon in a benefit claim will be available upon written request pursuant to § 1.14(a)(1)(v). A copy of the application as originally filed for an unpublished pending application that is incorporated by reference will also be available upon payment of the required fee pursuant to § 1.14(a)(1)(vi). Thus, these types of pending applications will continue to require payment of a fee for copies, as access to these applications is limited. The Office will continue to require that an order for a copy of the file contents, or any paper in the file, be placed with the Office of Public Records (OPR) in order to reduce the amount of time that the application is removed from the examination process. Of course, pursuant to § 1.14(b), if the Office has an image file wrapper (IFW) and once the public inspection utility is available to the public, the public would be permitted to inspect the IFW at any time, even when the application is in final data capture for issuance of the application as a patent.

Comment 5: One comment also requested clarification as to the definition of “referenced.” Another comment indicated that there is a defect with § 1.14 in that it does not notify the public that the Office will provide either a copy of or access to a file for an abandoned unpublished application if the application number for that abandoned unpublished application is referenced in a document in the file of a publicly available application, such as in an IDS in the publicly available application. The Office should revise § 1.14 to clarify that point.

Response: In the final rule, the term “identified” has been used instead of “referenced” in order to provide greater clarity. For an application to be “identified” there must be a reference to the application in the published patent or patent application document itself. In § 1.14(a)(iv), the following sentence has been added: “An application is considered to have been identified in a document, such as a patent, when the application number or serial number and filing date, first named inventor, title and filing date or other application specific information are provided in the text of the patent, but not when the same identification is made in a paper in the file content of the patent and is not included in the printed patent or application publication.” As a result, any application that is identified in a patent whether on the front page of the patent, in the “References Cited” section, incorporated-by-reference in the specification, or relied upon for priority, or in some other manner, is available to the public. If an application is identified in an amendment to the specification of an application, and that amendment is later canceled, then the application is not identified in the patent document.

Note that if the application was relied upon under 35 U.S.C. 119(e) or 120, but for some reason, the application was not identified in the patent application publication ( e.g. , the benefit claim was made in a preliminary amendment and preliminary amendments are not reflected in patent application publications ( see § 1.215(a))), the application is still available to the public because Office computer records will show the benefit claim.

It not enough that the application has been referenced somewhere in the file content, such as in an examiner's Office action. An application that is mentioned in an examiner's Office action may be available on petition, but not automatically by operation of the rule. Examiners need to be able to mention copending commonly assigned applications and to distinguish the application that they are examining from other applications of the applicant, and the record needs to be clear as to discussion of other relevant applications, but if such a discussion also had the effect of laying open the related applications, then the Office would continually be subjected to requests to expunge the record of allegedly unnecessary references to other applications.

Comment 6: One comment noted that proposed new § 1.14(b) states that “the Office may at its discretion provide access only to an electronic copy of the specification, drawings, and file contents of the application.” The comment further noted that the proposed rule does not indicate how the Office will “provide access only to an electronic copy” and requested that the proposed rule be revised to clarify what “access only to an electronic copy” means to apprise practitioners of what they need to do to get that access.

Response: The comment has not been adopted. The mechanism by which the Office will provide electronic copies is anticipated to change rapidly over the next five years, and the text of proposed § 1.14(b) was chosen to give the Office flexibility in the mechanism in which electronic access will be provided. At this time, the Office does not limit access for any patent applications to electronic copies, and when the Office does limit such access, the Office will explain how to obtain such access on the Office's Internet Web site as well as in other documents.

Comment 7: Several comments indicated approval of proposed new § 1.14(e) to § 1.14. One comment requested that the Office streamline the global patenting process by relieving applicants of the burden of having to place and track orders for certified copies and then ship them around the world by relieving applicants who consent to sharing the electronic file of their applications of the need to request that the Office transmit their application to other IP offices in which they are claiming priority, by deeming a priority claim made in an IP office with which the Office has a bilateral agreement as authorization for the Office to transmit the file to that IP office or provide that office with access to the file.

Response: Pending implementation of the system to provide document exchange, the revision to § 1.14(e) has been postponed. Deeming a priority claim made in an IP office with which the Office has a bilateral agreement as an authorization for the Office to transmit a file to that Office and for the Office to electronically obtain the priority document is an excellent suggestion that the Office will explore further. At this time, however, the Office does not consider it advisable to treat a priority claim as being sufficient to permit an office of subsequent filing to “pull” the priority document from the office of first filing. The Office prefers to provide for the office of first filing to “push” the priority document to the office of subsequent filing at the request of the applicant to do so. This is because applicants do sometimes inadvertently provide the wrong application number in their priority claim.

Comment 8: Another comment requested that the Office create a process by which the applicant provides express written consent to the sharing of its electronic application with other IP offices as simply as possible by allowing the consent to be incorporated into the Application Transmittal as well as being submitted as a separate paper either at the time the application is filed or subsequent thereto.

Response: The proposed changes to § 1.14(e) have been postponed. The comments made will be considered when the proposed change is reconsidered. The Office plans to make consent to share its electronic application as simple as possible. The Office has a strong interest in sharing search results and other information with other IP offices.

Comment 9: One comment stated that proposed new § 1.14(e) indicates that the Office may share unpublished applications with other IP offices, if the applicant consents, and presumed that the Office will implement a procedure wherein the applicant is notified of an intent to share the application with the other IP offices, and then requires the applicant to take some affirmative action after notice by the Office, as is proposed in § 1.14(f)(2) regarding decisions the Director wants to publish for Board proceedings that are not otherwise public.

Response: The proposed changes to § 1.14(e) have been postponed. The comments made will be considered when the proposed change is reconsidered.

Comment 10: Finally, under § 1.14(f)(2) (as proposed), another comment encouraged the Office to make any action or decision that involves an interpretation of patent laws and regulations that would be of important precedential value available to the public regardless of whether the decision discloses a trade secret or other confidential information. The comment explained that the great majority of applications will be available to the public by virtue of a publication of most applications eighteen months after first filing, and argued that the policy and practice of applications being published represents the rule rather than the exception. In the unique circumstances where an action or decision is considered to have important precedential value, the comment argued that the general rule of transparency to the public should prevail over the interests of confidentiality of an individual application that is not even available to most applicants.

In addition as to § 1.14(f) (as proposed), which indicates that the Office may publish certain decisions of the BPAI, several comments on the proposal stated that the Director has authority for publication of such decisions based upon the Director's authority specified in 35 U.S.C. 122(a) to make “information concerning” patent applications public in “special circumstances as may be determined by the Director.” The comments in response to the notice of proposed rule making listed one special circumstance as an opinion concerning an application that claims the benefit of a published application, including a published foreign priority application, but the comments in response to this proposed change argued that there is no logical relationship between foreign priority and a benefit to the public, and that there is no logical reason for the Director to treat a claim to priority of a published foreign application as a “special circumstance.” Another comment stated that there is a public purpose served by publication of BPAI decisions, even if the BPAI does not think those decisions, as noted in the comments, “involve an interpretation of patent laws or regulations that would be precedential,” and argued that the Director should state that any decision of the BPAI concerning a patent application is a special circumstance warranting publication of the decision.

Response: On reconsideration, the changes proposed in § 1.14(f)(1) and (2) were not necessary to implement an image file wrapper system. The proposed changes, including the public comments on the proposed changes, may be reconsidered in the future.

Comment 11: One comment requested clarification on whether the Office intended to require all pages of a paper submitted to the Office in a particular paper to be the same size ( e.g., all either on 21.6 cm by 27.9 cm (8 1/2 by 11 inch) or 21.0 cm by 29.7 cm (DIN size A4) paper) in proposed § 1.52(a)(1).

Response: All papers being submitted to the Office should be on either 21.6 cm by 27.9 cm (8 1/2 by 11 inch) or 21.0 cm by 29.7 cm (DIN size A4) paper. Rule 1.52(a)(1) currently requires all papers to be on sheets of paper being the same size. For example, each page of an amendment must be on the same size paper. This rule does not, however, require that all correspondence in an application be on the same size paper. As a result, if a foreign client forwards to the patent practitioner prior art on 21.0 cm by 29.7 cm (DIN size A4) paper, a transmittal letter and form USPTO/SB/08 on 21.6 cm by 27.9 cm (8 1/2 by 11 inch) paper may be submitted together with copies of the cited references on 21.0 cm by 29.7 cm (DIN size A4) paper and be consistent with § 1.52.

Comment 12: One comment requested that either the Office change its practice and specifically identify what specific provision or provisions of § 1.52 were not complied with in making a decision of non-compliance or assist applicants in submitting proper papers after a notice has been mailed.

Response: The Office did not propose any changes to its practice of treating papers not in compliance with § 1.52. Nevertheless, several of the most common errors are, in fact, described with particular detail in notices of non-compliance mailed by the Office. Other less common errors are more generally described. This represents a balancing of the need to process application papers in a timely manner with the desire to assist applicants. Further, when assistance is timely requested, the Office makes efforts to assist applicants in submitting papers.

Comment 13: One comment requested that § 1.52(i) be liberalized to permit single line spacing because the Office would no longer need to hand-enter amendments within the electronic files and because the current requirement creates bulky files for applicants.

Response: This request cannot be adopted. First, during the transition to an image file wrapper environment, the Office must continue its current paper-based system for a considerable number of applications. Second, even after the transition is complete, the greater than single line spacing is useful for image processing ( e.g., using optical character recognition technology). This is particularly true for text including superscript or subscript font. Further, the change would be inconsistent with PCT Rule 11.9(c) and would therefore be undesirable.

Comment 14: One comment suggested that the preamble of § 1.59 be reconsidered. It was suggested that the Office should not, particularly during an evaluation period, destroy original (pre-scanning) paper copies of document to safeguard the usability of its records.

Response: The Office plans to store the original paper copies for a period of time while the Office evaluates the effectiveness of its quality control and quality assurance procedures. The original paper copies will eventually be destroyed under a NARA-approved schedule.

Comment 15: Several comments questioned if the Office, after making the proposed change in § 1.59, would continue its practice of providing notice to an applicant, patent owner or third party requester when a paper was expunged.

Response: The Office will continue to provide written notice when granting a petition for expungement. Following the mailing of the written notice, the expunged paper will no longer be retained in the public electronic image file wrapper. The Office has also amended § 1.59 to provide that notice of non-entry will be provided.

Comment 16: One comment requested clarification concerning whether an application's title is considered an “other part” in proposed §§ 1.71 and 1.72 or whether the title should continue to be provided on the first page of the specification.

Response: The title of the invention, if presented as part of the specification as a heading on the front page of the specification, is considered to be part of the specification. See § 1.77(b)(1). Therefore, the title may continue to be provided on the first page of the specification.

Comment 17: One comment suggested that the Office change its internal practices to require applicant's consent to making most substantive changes to abstracts by revising MPEP § 608.01(b).

Response: MPEP § 608.01(b) provides that changes to the abstract at allowance are to be made by examiner's amendment. Procedures for preparing examiner's amendment are set forth in MPEP § 1302.04. Substantive changes to the abstract must be made by formal examiner's amendment with approval from the applicant. Therefore, the current practice and procedures are consistent with the comment.

Comment 18: One comment suggested that the Office reconsider its proposal to eliminate the last sentence of current § 1.72 and revised the sentence to read: “In proceedings within the Office, the Abstract shall not be used for interpreting the scope of the claims,” so that examiners would not be tempted to rely on the Abstract to displace the “broadest reasonable interpretation” of a claim.

Response: The comment is not adopted. The Federal Circuit has indicated that the abstract is a potentially helpful source of intrinsic evidence in determining the scope of the claims. See Hill-Rom Co. 209 F.3d at 1341 n.*, 54 USPQ2d at 1440 n.1 (Fed. Cir. 2000).

Comment 19: Several comments indicated that it would be unfair for the Office to reduce, by one day, the time period in § 1.97(c) for submission of an information disclosure statement (IDS).

Response: The Office proposed this change to realign when applicants would be entitled to consideration of IDSs in light of the real time access to changes in status information by accessing the Office's computer records via the PAIR. Several comments indicated that this change would unfairly burden honest applicants in order to punish a small number of dishonest ones. In light of the comments, the Office has not gone forward with this proposal. The Office is actively considering a change in PAIR to delay the inclusion of changes in status information in PAIR until the next business day after changes in status as an alternative remedy that would not be overly inclusive.

Comment 20: One comment suggested that the Office permit submission of e-IDS statements listing foreign patent documents and non-patent literature.

Response: The Office has been investigating how to expand the use of e-IDS to non-U.S. patent documents to allow applicant to submit a broader variety of listings of references and to allow examiners to easily retrieve the cited references. Unfortunately, the Office resources do not permit expansion at this time.

Comment 21: One comment questioned if the Office, after determining that a paper submitted under § 1.99 could not be entered, would notify the party submitting the paper that it was not entered.

Response: The Office will continue its practice of not corresponding with third parties following publication of an application under 35 U.S.C. 122(b), since the Office's procedures must not permit third party protests after publication without the express written consent of the applicant. See 35 U.S.C. 122(c).

Comment 22: A number of comments suggested that the Office reduce the number of status identifiers required as part of § 1.121(c). Several comments stated that the eleven identifiers described for use by the Office were unnecessarily complex, and having to use such a large number could lead to confusion and errors. Most of the focus in the comments was on the identifiers “(Reinstated—formerly claim #),” “(Previously reinstated),” “(Re-presented —formerly dependent claim #)” and “(Previously re-presented).” Several comments suggested the use of no more than five identifiers, since it was felt a number of the proposed identifiers might be overlapping or redundant.

Response: The comments, for the most part, have been adopted by the Office. Paragraph (c) is amended in the final rule to require the use of only the following identifiers: (Original), (New), (Currently amended), (Withdrawn), (Canceled), (Not entered) and (Previously presented), the last of which is inclusive of previously added and previously amended claims.

The use of appropriate identifiers in the image file wrapper environment is designed to inform any user (examiner, technical support staff, applicant, practitioner, etc.) of the current status of each and every claim in the application. Labeling a claim as “new” or “currently amended” serves the desired purpose by providing a focus on what is being added to the claims in the application via the current amendment, relative to the immediate prior version. Additional explanations relating to status identifiers or classification of claims into a particular status can be provided at any time in the “Remarks” section of the amendment document.

Claims presented for the first time in an amendment after final rejection should be classified with the status identifier “new.” If an applicant presents claims in an amendment after final rejection, which may or may not have been entered by the Office prior to the submission of a (subsequent) supplemental amendment, a notice of appeal or an RCE request, the second or subsequent amendment should classify any claims presented for the first time in the second or subsequent amendment as “new.” Any claims presented for a second or subsequent time (which were previously not entered) should be classified as “not entered.” If an applicant presents new claims in an amendment whose entry status is unknown (at the time of filing of a second or subsequent amendment), and the same and/or additional claims are to be presented in a subsequently filed amendment, claim numbers following the last used numbers of the previously filed paper must be employed. See § 1.126. Even if the earlier amendment is not entered, the claim numbers presented in the subsequent amendment must begin after the last numbered claim of the previously submitted amendment. The Office will make modifications to correct the claim numbering prior to allowance once any unentered papers have been approved for entry.

Comment 23: Several comments addressed the status of “withdrawn” claims and the desirability of including the text of these claims in the complete claim listing (set), in order to facilitate the calculation of fees and relieve the burden of searching the entire file to locate and determine claim dependencies, etc. Another comment argued on behalf of presenting the claim text of these claims in order to be able to present amendments so as to have them rejoined with the claim(s) being examined.

Response: The Office has adopted the suggestion. Paragraph (c) has been revised to require the inclusion of the text of withdrawn claims in the claim listing (set). Paragraph (c) is amended to reflect this change. If withdrawn claims are being amended, they must still be classified with the status identifier “withdrawn,” but may include markings to show changes.

Comment 24: One comment proposed that the Office modify the language of the rule to provide for presentation of some text that is to be deleted from the specification in order to assist in determining the exact location of text that is to be canceled.

Response: The suggestion made in this comment will be permitted in practice by the Office. There are a number of ways to identify the precise location of subject matter which is to be deleted from the specification, such as, use of paragraph numbers, page number and line number identification: “paragraph at page 4 beginning with ‘The apparatus * * *,’ ”. Paragraph (b)(1)(i) of this section provides that “Amendments to the specification may be made by submitting: (i) An instruction, which unambiguously identifies the location * * *” If inclusion of a few words of text is needed to “unambiguously” or uniquely locate the paragraph to be deleted ( e.g., due to the lack of line numbering), the use of the first and/or last few words of the paragraph is permitted.

Comment 25: One comment included the suggestion that the claim listing not be required to present claims in numerical order, but to permit groupings of claims in other than ascending numerical order. The commenter believes it is more important to an examiner to have the claims presented in groupings that represent a logical order, such as by subject matter relationship.

Response: The point raised by this comment has validity only in the original presentation of claims, where applicant can control the groupings of related claims as well as the claim numbering. In amendment practice, however, the re-presentation of claims in a different order, or the addition of new claims in an order other than numerical, would cause confusion in processing, make fee calculations difficult and possibly result in claims being overlooked. There are many other aspects of processing which a patent application undergoes, where strict numerical presentation of claims is essential.

Comment 26: A number of comments have been received which oppose the use of strike-through as the only marking system acceptable to indicate deleted subject matter in amendments of the specification and claims. Several of the comments raised the likelihood of confusion as the principal argument against the use of strike-through, where, for example, the numeral “4” is to be deleted, or a punctuation mark is to be changed. Others suggested possible confusion for deletion of formula elements. Another noted the inability of some word processing programs to make strike-through a permanent part of the final document.

Response: The Office has decided to modify the mandatory requirement of the use of strike-through to permit the use of double brackets ( i.e., [[ ]]) where five or fewer characters are being deleted or where the use of strike-through cannot be easily perceived. Strike-through will still be the required method of indicating or marking text that is to be deleted by the amendment. Double brackets could be used, for example, when changing “4 corners” to “three corners” in an amendment document, which would normally be perceived with difficulty if only strike-through were required. Double brackets may also be used when deleting five or fewer characters.

Comment 27: One comment suggested that the proposed rule (§ 1.121(b)(1)(ii)) provided for underlining with respect to a new paragraph being added to the specification, while the sample amendment (on the Office's Internet Web site) did not include underlining of an added paragraph. This apparent inconsistency could lead to confusion among applicants and practitioners.

Response: The addition of § 1.121(b)(1)(iii) to the final rule clarifies the use of markings for added paragraphs in the specification. This section provides that the full text of any added paragraph to the specification is to be presented without underlining.

Comment 28: Several comments opposed the requirement of § 1.121(d) that replacement sheets of drawings complying with § 1.84 be submitted in an amendment document. It was felt that applicants might incur an unnecessary expense if the drawings were not approved for entry.

Response: The suggestions that the Office not require replacement sheets of drawings which comply with § 1.84 have not been adopted. Since the majority of corrected drawings are accepted without requiring further modification, savings of time and resources would result in the majority of cases if additional processing is thereby eliminated. In order to provide an accompanying explanation of the changes being made, applicants must include explanatory comments in the remarks section of the amendment document. In addition, applicant may, under paragraph (d)(1), provide a marked-up drawing with annotations to show the changes made. The examiner may also require a marked-up drawing under paragraph (d)(2).

Comment 29: One comment questioned the current practice of retroactive non-entry of papers in violation of § 10.10(b). The comment also requested that papers violating § 10.10(b) be accepted into the record and serve to toll any time period running against the applicant until after the Office has notified applicant that a paper in the application was submitted in violation of § 10.10(b). The same comment requested that the Office only disapprove entry of papers violating § 10.10(b) that are submitted after the Office has provided a first notice in an application that papers in violation of § 10.10(b) had been submitted.

Response: The Office did not propose to revise § 10.10(b). Therefore, the comment was not germane to the changes to the rules of practice that are currently under consideration. The Office will consider the comment, and may reconsider its current practice or propose revisions to its rules of practice, in the future.

Comment 30: One comment requested that the Office explicitly provide for the inclusion of a path, file name, date and time of creation corresponding to the location of an application's specification on applicant's hard drive within the application's specification or within some other document submitted with the application.

Response: The Office's current rules of practice permit inclusion of this material within the transmittal letter accompanying a new application filing or an amendment document.

Comment 31: One comment suggested that the Office permit or require filing in Adobe “pdf” format, preferably preserving the text portion as searchable text. It was also suggested that the Office consider “freezing” the format of Adobe used in order to prevent increased costs.

Response: The Office is exploring the business implications of accepting information submitted in an Adobe “pdf” format, and is assessing the legal, business, and technical issues of permitting applications to be filed in this format.

Comment 32: An inquiry concerning data security was received.

Response: Efforts to safeguard data security are not germane to this rule making and will be discussed by separate document.

Comment 33: One comment inquired how the Office was planning to safeguard against facilitating identity theft when it posts images of application data on line.

Response: The image file wrapper of an issued patent or published patent application including any signatures included therein is a public document that the Office intends to make publicly available. The Office plans to make these records available for public inspection over the Internet by October 2004. While the Office is actively considering adopting electronic signatures, there is currently no special efforts to safeguard the signatures included in the image file wrapper of applications that are currently pending or any of the signatures submitted in applications filed after a rule change to permit electronic signatures. It is also noted that image copies of any publicly available patent application or patent file are already available from a number of private sector vendors. Therefore, the Office's plan to make the image file wrapper of patents and published applications available for public inspection over the Internet does not increase the risk of identity theft.

This notice adopts changes to the rules of practice that facilitate electronic image record management of patent application files to support the beginning-to-end electronic processing of patent applications. The changes are limited to the format for and the manner of making amendments to patent applications, the handling of patent applications and other papers within the Office and the manner of filing information disclosure statements. Accordingly, this final rule involves rules of agency practice and procedure under 5 U.S.C. 553(b)(A). See Bachow Communications Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001). Accordingly, this final rule may be adopted without prior notice and opportunity for public comment under 5 U.S.C. 553(b) and (c), or thirty-day advance publication under 5 U.S.C. 553(d).

As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 (or any other law), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. are inapplicable. As such, the regulatory flexibility analysis is not required, and none has been provided. See 5 U.S.C. 603.

This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

This rule making has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

This rule making involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The collections of information involved in this final rule have been reviewed and previously approved by OMB under the following control numbers 0651-0021, 0651-0031, 0651-0032 and 0651-0033. The United States Patent and Trademark Office is not resubmitting an information collection package to OMB for its review and approval because the changes in this proposed rule would not affect the information collection requirements associated with the information collection under OMB control numbers 0651-0021, 0651-0031, 0651-0032 and 0651-0033.

The title, description and respondent description of each of the information collections is shown below with an estimate of the annual reporting burdens. Included in the estimate is the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information. The principal impacts of the changes in this proposed rule are to (1) expressly provide for the electronic submission of an information disclosure statement; (2) provide for a slight change in the format of an application being filed in order to accommodate for the scanning and indexing of different sections of the application file; and (3) provide for a change in the manner of making amendments to an application consistent with the Office's efforts to establish a patent electronic image management system.

OMB Number: 0651-0021.

Title: Patent Cooperation Treaty.

Form Numbers: PCT/RO/101, ANNEX/134, ANNEX/144, PTO-1382, PCT/IPEA/401, PCT/IB/328, PTO/SB/61/PCT, PTO/SB/64/PCT.

Type of Review: Approved through December of 2003.

Affected Public: Individuals or Households, Business or Other For-Profit, Federal Agencies or Employees, Not-for-Profit Institutions, Small Businesses or Organizations, Farms, and State, Local or Tribal Government.

Estimated Number of Respondents: 331,407.

Estimated Time Per Response: 0.25 (15 minutes) to 4.0 (4 hours).

Estimated Total Annual Burden Hours: 401,202 hours.

Needs and Uses: The information collected is required by the Patent Cooperation Treaty (PCT). The general purpose of the PCT is to simplify the filing of patent applications on the same invention in different countries. It provides for a centralized filing procedure and a standardized application format.

OMB Number: 0651-0031.

Title: Patent Processing (Updating).

Form Numbers: PTO/SB/08A, PTO/SB/08B, PTO/SB/21-27, PTO/SB/30-32, PTO/SB/35-37, PTO/SB/42-43, PTO/SB/61-64, PTO/SB/67-68, PTO/SB/91-92, PTO/SB/96-97, PTO-2053-A/B, PTO-2054-A/B, PTO-2055-A/B.

Type of Review: Currently under review.

Affected Public: Individuals or Households, Business or Other For-Profit Institutions, Not-for-Profit Institutions and Federal Government.

Estimated Number of Respondents: 2,247,270.

Estimated Time Per Response: 1 minute and 48 seconds to 4 hours.

Estimated Total Annual Burden Hours: 1,021,822 hours.

Needs and Uses: During the processing for an application for a patent, the applicant/agent may be required or desire to submit additional information to the United States Patent and Trademark Office concerning the examination of a specific application. The specific information required or which may be submitted includes: Information Disclosure Statements; Submission of priority documents and Amendments.

OMB Number: 0651-0032.

Title: Initial Patent Application.

Form Number: PTO/SB/01-07, PTO/SB/13PCT, PTO/SB/16-19, PTO/SB/29, PTO/SB/101-110.

Type of Review: Currently under review.

Affected Public: Individuals or Households, Business or Other For-Profit Institutions, Not-For-Profit Institutions, Farms, Federal Government, and State, Local, or Tribal Governments.

Estimated Number of Respondents: 319,350.

Estimated Time Per Response: 24 minutes to 10 hours and 45 minutes.

Estimated Total Annual Burden Hours: 2,984,360 hours.

Needs and Uses: The purpose of this information collection is to permit the Office to determine whether an application meets the criteria set forth in the patent statute and regulations. The standard Fee Transmittal form, New Utility Patent Application Transmittal form, New Design Patent Application Transmittal form, New Plant Patent Application Transmittal form, Declaration, Provisional Application Cover Sheet, and Plant Patent Application Declaration will assist applicants in complying with the requirements of the patent statute and regulations, and will further assist the Office in processing and examination of the application.

OMB Number: 0651-0033.

Title: Post Allowance and Refiling.

Form Numbers: PTO/SB/44, PTO/SB/50-51, PTO/SB/51S, PTO/SB/52-53, PTO/SB/55-58, PTOL-85B.

Type of Review: Approved through January of 2004.

Affected Public: Individuals or Households, Business or Other For-Profit Institutions, Not-For-Profit Institutions, Farms, State, Local and Tribal Governments, and Federal Government.

Estimated Number of Respondents: 205,480.

Estimated Time Per Response: 2 minutes to 2 hours.

Estimated Total Annual Burden Hours: 63,640 hours.

Needs and Uses: This collection of information is required to administer the patent laws pursuant to Title 35, U.S.C., concerning the issuance of patents and related actions including correcting errors in printed patents, refiling of patent applications, requesting reexamination of a patent, and requesting a reissue patent to correct an error in a patent. The affected public includes any individual or institution whose application for a patent has been allowed or who takes action as covered by the applicable rules.

Comments are invited on: (1) Whether the collection of information is necessary for proper performance of the functions of the agency; (2) the accuracy of the agency's estimate of the burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information to respondents.

Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden, to Robert J. Spar, Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, or to the Office of Information and Regulatory Affairs, OMB, 725 17th Street, NW., Washington, DC 20503, (Attn: PTO Desk Officer).

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

The Copyright Office has reviewed its regulations and makes technical amendments to 37 CFR part 202. In 1990, the Architectural Works Copyright Protection Act amended 17 U.S.C. 101 to add the definition for “architectural work.” The Act also exempts from copyright registration architectural works embodied in unpublished plans or drawings created before December 1, 1990, if the works remained unconstructed on December 31, 2002. Regulations pertaining to registration of architectural works are found at 37 CFR 202.11, and paragraph (d) of that section covers works excluded from protection. The time for unpublished works created before December 1, 1990, to become constructed has now expired. The technical amendments are intended to reflect the exclusion and to clarify that the full title of the amending legislation is the Architectural Works Copyright Protection Act, title VII of the Judicial Improvements Act of 1990, Public Law 101-650, 104 Stat. 5089, 5133.

On September 24, 1997, the State of North Carolina Department of Environment and Natural Resources submitted revisions to amend or adopt multiple sections in the Mecklenburg County Air Pollution Control Ordinance. These amendments address Air Quality Permits, Enforcement; Variances; Judicial Review, and Transportation Facility Procedures. A detailed explanation of each major amendment is detailed below:

MCAPCO Section 1.5213 Action on Application; Issuance of Permit has been revised to incorporate the addition of language governing public notice and a thirty day comment period prior to permit issuance, permit applicant's right to administrative hearing, public hearing, stringency of permits and enforceability of permit requirements.

MCAPCO Section 1.5215 Application Processing Schedule has been adopted to set forth the schedule for processing permit applications, modifications, and renewals.

MCAPCO Section 1.5231 Permit Fees has been revised to modify the definitions of “Actual Emissions,” “Burning Approval Inspection,” “Non-attainment Pollutant facility,” “NSPS facility,” “Process ID,” “SIP facility,” “SB (select B),” “Synthetic minor facility,” and “Truck Tank Decal.” These definitions were modified to be consistent with EPA requirements.

MCAPCO Section 1.5232 Issuance, Revocation, and Enforcement of Permits has been modified to indicate the type of factors the Director shall consider during his annual review of permits to determine if a permit modification is required.

MCAPCO Section 1.5305 Variances has been modified to clarify the process for submitting a State approved variance to the EPA for inclusion into the federally approved SIP.

MCAPCO Section 1.5306 Hearings has been modified to include a subsection that covers the cancellation of an appeal hearing.

MCAPCO Section 1.5604 Public Participation has been adopted to list in detail the requirements of the Director with respect to public participation including public notice and public hearings.

MCAPCO Section 1.5607 Application Processing Schedule has been adopted to list the schedule of requirements for processing applications for transportation facility permits.

EPA is approving the aforementioned changes to the SIP because the revisions are consistent with Clean Air Act and EPA regulatory requirements. The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective August 29, 2003 without further notice unless the Agency receives adverse comments by July 30, 2003.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on August 29, 2003 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 29, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document, wherever “we” or “our” is used means EPA.

Colorado has adopted a credible evidence rule (Colorado AQCC Common Provisions Regulation, section II.I) to comply with the EPA's final rule concerning credible evidence. On February 24, 1997, EPA promulgated regulations under section 113(a) and 113(e)(1) of the CAA that gave EPA authority to use all available data to prove CAA violations ( see 62 FR 6314-8328, February 24, 1997). The final rule requires states to include provisions in their SIPs to allow for the use of credible evidence for the purposes of submitting compliance certifications and for establishing whether or not a person has violated a standard in a SIP.

In accordance with section 110(k)(5) of the CAA, a SIP call was issued to the State of Colorado on July 7, 1994, which was later superceded by another SIP call on October 20, 1999. In the October 20, 1999, letter, from William P. Yellowtail, EPA Regional Administrator, to Bill Owens, Governor of Colorado, EPA notified the State of Colorado that their SIP was inadequate to comply with sections 110(a)(2)(A) and (C) of the CAA because the SIP could be interpreted to limit the types of credible evidence or information that may be used for determining compliance and establishing violations. In response to the SIP call, the State of Colorado adopted and submitted a new credible evidence rule, Colorado AQCC Common Provisions Regulation, section II.I, titled Compliance Certifications. EPA believes that section II.I of Colorado AQCC Common Provisions Regulation meets the requirements of 40 CFR 51.212(c) and is approving it into the SIP.

EPA is approving a SIP revision submitted by the Governor of Colorado on July 31, 2002, concerning the use of credible evidence for determining compliance and establishing violations. The July 31, 2002, submittal revises Colorado AQCC Common Provisions Regulation by adding section II.I, titled Compliance Certifications. EPA believes that section II.I of Colorado's Common Provisions Regulation meets the requirements of 40 CFR 51.212(c) and is approving it into the SIP.

Section 110(l) of the Clean Air Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the NAAQS or any other applicable requirements of the Act. The Colorado SIP revisions that are the subject of this document do not interfere with the maintenance of the NAAQS or any other applicable requirement of the Act because the State of Colorado's new credible evidence rule meets the Federal requirements in 40 CFR 51.212(c) and this rule will enhance the State's efforts in implementing the Clean Air Act. Therefore, section 110(l) requirements are satisfied.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments be filed. This rule will be effective August 29, 2003, without further notice unless the Agency receives adverse comments by July 30, 2003. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 29, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

This is a summary of the FCC's Memorandum Opinion and Order, FCC 03-99, adopted on April 23, 2003, and released on May 2, 2003. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the FCC's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-99A1.pdf . Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365 or at bmillin@fcc.gov .

1. In the Second Report and Order (Second Report and Order), 67 FR 17308, April 9, 2002, in this proceeding, the FCC allocated the fifty megahertz of spectrum in the 4.9 GHz band for fixed and mobile services (except aeronautical mobile service) and designated the band for use in support of public safety. In this Memorandum Opinion and Order (MO&O), the FCC addresses petitions for reconsideration of the Second R&O.

2. In the MO&O , the FCC denies petitions for reconsideration of the FCC's decision to prohibit aeronautical mobile operations in the 4.9 GHz band. The FCC believes that there is insufficient information demonstrating that it could fashion a general rule that would adequately protect radio astronomy operations in all scenarios. The FCC is also concerned that any general rule would be so restrictive as to limit the utility of pursuing aeronautical mobile operations in the 4.9 GHz band. The FCC nonetheless recognizes the public safety community's interest in utilizing the 4.9 GHz band for aeronautical mobile operations and provides a mechanism whereby such operations could be allowed on a case-by-case basis provided that there is a sufficient technical showing made that the proposed operations would not interfere with in-band and adjacent band radio astronomy operations. This action strikes the appropriate balance between the FCC's goals of protecting radio astronomy operations and promoting effective public safety communications and innovation in wireless broadband services in support of public safety.

3. The Chief, Wireless Telecommunications Bureau and the Chief, Office of Engineering and Technology, are granted delegated authority to adjudicate waiver requests to utilize the 4.9 GHz band for aeronautical mobile operations.

This is a summary of the FCC's Third Report and Order , FCC 03-99, adopted on April 23, 2003, and released on May 2, 2003. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the FCC's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-99A1.pdf. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365 or at bmillin@fcc.gov.

1. In this Third Report and Order ( Third R&O ), the FCC establishes licensing and service rules for the 4940-4990 MHz band (4.9 GHz band). In the Second Report and Order and Further Notice of Proposed Rule Making , 67 FR 20914, April 29, 2002, in this proceeding, the FCC allocated the fifty megahertz of spectrum in the 4.9 GHz band for fixed and mobile services (except aeronautical mobile service) and designated the band for use in support of public safety. The FCC also sought comment on licensing and service rules, eligibility, and other technical issues concerning the 4.9 GHz band.

2. By this action, the FCC seeks to promote effective public safety communications and innovation in wireless broadband services in support of public safety. The rules adopted herein represent another step in the FCC's ongoing efforts to develop a regulatory framework in which to meet the current and future public safety communications needs. For example, the rules for the 4.9 GHz band that the FCC adopts herein are intended to accommodate a variety of new broadband applications such as high-speed digital technologies and wireless local area networks for incident scene management, dispatch operations and vehicular operations. The FCC's action also fosters interoperability by providing a regulatory framework in which traditional public safety entities can pursue strategic partnerships with both traditional public safety entities, such as the Federal Government, and non-traditional public safety entities, such as utilities and commercial entities, in support of their missions regarding homeland security and protection of life and property.

3. The FCC envisions that the 4.9 GHz band will be able to accommodate a variety of broadband applications, including technologies and operations requiring varying bandwidths and operations that are both temporary and permanent in nature. Consequently, in this Third R&O , the FCC endeavors to provide 4.9 GHz band licensees with the maximum operational flexibility practicable and to encourage effective and efficient utilization of the spectrum. The FCC believes that its actions herein make significant strides towards ensuring that agencies involved in the protection of life and property possess the communications resources needed to successfully carry out their mission.

4. In the Third R&O , the FCC establishes licensing and service rules for the 4.9 GHz band. The major decisions the FCC reaches are as follows:

• Limits eligibility for licensing in the 4.9 GHz band to those entities providing “public safety services” wherein public safety services are defined as services:

(A) The sole or principal purpose of which is to protect the safety of life, health, or property;

(B) that are provided

(i) by State or local government entities; or

(ii) by nongovernmental organizations that are authorized by a government entity whose primary mission is the provision of such services; and

(C) that are not made commercially available to the public by the provider.

• The FCC permits broadband mobile operations, fixed hotspot use, and temporary fixed links on a primary basis in the band. Furthermore, the FCC allows fixed point-to-point operations on a secondary basis.

• The FCC establishes a “jurisdictional” geographical licensing approach for operations in the band, whereby licensees will be authorized to operate in those geographic areas over which they have jurisdiction and will be required to cooperate in use of the spectrum.

5. This is a permit-but-disclose notice and comment rule making proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the FCC's rules.

6. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. Accordingly, the FCC has prepared a Final Regulatory Flexibility Analysis concerning the impact of the rule changes contained in the Third R&O on small entities. The Final Regulatory Flexibility Analysis is set forth below.

7. This Third R&O contains new information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under the PRA. The FCC, as part of its continuing effort to reduce paperwork burdens, invites the general public, the OMB and other Federal agencies to comment on the information collection(s) contained in this Third R&O , as required by the PRA.

8. Public and agency comments are due August 29, 2003. Comments should address: (a) Whether the modified collection of information is necessary for the proper performance of the functions of the FCC, including whether the information shall have practical utility; (b) the accuracy of the FCC's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

9. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Further Notice of Proposed Rule Making ( FNPRM ). The FCC sought written public comment on the proposals in the FNPRM , including comment on the IRFA. No comments were submitted specifically in response to the IRFA; the FCC nonetheless discusses certain general comments below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

10. In this Third Report and Order ( Third Report and Order ), the FCC adopts eligibility and service rules for the licensing and operation of fixed and mobile services in the 4.9 GHz band pursuant to the Omnibus Budget Reconciliation Act. These rules provide 4.9 GHz band eligibles with maximum flexibility to employ a variety of new broadband applications such as high-speed digital technologies, wireless local area networks for incident scene management, dispatch operations and vehicular/personal communications. Additionally, public safety entities will be permitted to employ “hot spot” operations, temporary fixed links, and traditional backbone microwave operations in the band. The rules the FCC adopts herein ensure that public safety entities will enjoy the greatest possibility of unhindered use of this spectrum while fostering partnership opportunities with critical infrastructure and commercial entities, and will fulfill the FCC's obligations as mandated by Congress to assign this spectrum for non-Government use.

11. No comments were submitted specifically in response to the IRFA. In general comments, however, some commenters expressed concern with the FCC's proposal to limit eligibility in the 4.9 GHz band to traditional public safety entities as defined by section 337(f) of the Communications Act. For example, the Association of American Railroads urges the FCC to adopt a definition of public safety services, pursuant to section 309(j)(2) of the Communications Act, that would allow critical infrastructure entities (CIEs) such as railroads and utility companies to acquire licenses in the 4.9 GHz band. Although under the rules the FCC adopts, CIEs are not eligible to hold licenses in this band, the FCC has considered the effect of these rule changes on small entities and considered other alternatives. In particular, the FCC notes that CIEs will have access to this spectrum through sharing agreements with public safety licensees. The FCC believes that this item strikes an appropriate balance between competing spectrum needs and expect that the FCC's actions will mostly benefit all entities subject to these rule changes, including small entities.

12. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

13. Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, the FCC estimates that 81,600 (ninety-one percent) are small entities.

14. The rules adopted will affect users of public safety radio services. These rules may also affect manufacturers of radio communications equipment. An analysis of the number of small businesses that may be affected follows. The FCC also notes that according to SBA data, there are approximately 4.44 million small businesses nationwide.

15. Small Businesses Sharing Spectrum with Public Safety Radio Services and Governmental Entities. As a general matter, Public Safety Radio Services include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Non-Federal governmental entities, as well as certain private businesses authorized by governmental entities, are potential licensees for these services in this proceeding. Neither the FCC nor the SBA has developed a definition of small businesses directed specifically toward the public service work at issue. Therefore, the applicable definition of small business is the definition under the SBA rules applicable to Cellular and other Wireless Telecommunications. This provides that a small business is a radiotelephone company employing no more than 1,500 persons.

16. Equipment Manufacturers . The FCC anticipates that at least six radio equipment manufacturers will be affected by the FCC's decisions in this proceeding. According to SBA regulations, a Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing businesses must have 750 or fewer employees in order to qualify as a small business concern.

17. Applicants for licenses to provide terrestrial fixed and mobile services in the 4.9 GHz band must submit license applications through the Universal Licensing System using FCC Form 601, and follow the service rules at 47 CFR part 90.

18. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

19. Regarding the FCC's decision to limit eligibility in the 4.9 GHz band to traditional public safety entities, the FCC realizes that certain commercial and critical infrastructure small business entities that might have wished to operate in this newly available spectrum may be adversely affected, in that they will not be able to obtain a license to operate in this band. This concern is mitigated, however, by the fact that the FCC will allow public safety entities to enter into sharing agreements with entities performing operations in support of public safety. Moreover, the FCC believes that in this instance, there is a compelling need for spectrum dedicated to public safety operations and that the FCC's approach here will ensure that such operations are not hampered by excessive frequency congestion. An alternative would be to expand the definition of public safety eligibles and/or to allow commercial use of the subject band; however, this would undermine the FCC's intention to promote public safety service in this band.

20. Regarding the FCC's decision to license the 4.9 GHz band via a jurisdictional licensing scheme, the FCC does not believe that there will be any significant adverse impact on small entities. In fact, this approach will give public safety entities which are considered small entities under the RFA the ability to obtain licenses for the entire 50 MHz of spectrum in this band and to choose the types of operations that best suit their individual needs. An alternative would be to license this spectrum on a state-wide basis or to require the use of some type of formal frequency coordination committee. The FCC does not believe, however, that frequency coordination would benefit licensees in all parts of the country, and state-wide licenses would not give smaller, local jurisdictions control over what types of operations might best suit their individual needs.

21. Regarding the FCC's decision to allow both fixed and mobile use, as well as point-to-point microwave operations on a secondary basis in the 4.9 GHz band, the FCC does not anticipate any adverse affect on small entities. Instead, the FCC's approach here should benefit public safety entities by allowing greater flexibility in meeting each licensee's particular operational needs.

22. Regarding the FCC's decision to implement a frequency utilization plan in the 4.9 GHz band consisting of one and five MHz channels, the FCC does not anticipate any adverse affect on small entities. In the event that public safety entities determine that greater channel bandwidths are needed, licensees may aggregate their channels.

23. Regarding the FCC's decision declining to require use of a particular technology for equipment in the 4.9 GHz band, the FCC does not anticipate any adverse affect on small entities. The FCC believes that the imposition of specific technology could impede the utilization of emerging technologies in the band and that greater flexibility is consequently warranted.

24. The FCC's decisions regarding fixed and mobile technical standards should not result in any adverse impact to small entities. Alternatively, the FCC could have adopted higher or lower power and emissions limits, but the FCC believes that the rules it adopts herein strike an appropriate balance between offering licensees maximum flexibility in their utilization of the 4.9 GHz band and minimizing the risk of harmful interference.

25. The FCC will send a copy of this Third R&O , including this FRFA, in a report to Congress pursuant to the Congressional Review Act. In addition, the FCC will send a copy of this Third R&O , including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this Third R&O and FRFA (or summaries thereof) will also be published in the Federal Register .

26. Pursuant to sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, this Third R&O IS HEREBY ADOPTED.

27. Parts 2 and 90 of the FCC's rules ARE AMENDED as specified in rule changes and effective July 30, 2003.

This is a summary of the Commission's Order adopted June 20, 2003, and released on June 24, 2003. The full text of the document is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com.

On November 12, 2002, the Commission released an order, 67 FR 77432 (December 18, 2002) further deferring until July 1, 2003, the effective date and implementation of four accounting and reporting requirement rule modifications previously adopted by the Commission as part of its biennial review of accounting requirements and Automated Reporting Management System (ARMIS) reporting requirements, Report and Order, 67 FR 5670 (February 6, 2002), delayed at 67 FR 20052 (April 24, 2003). The Commission deferred the implementation of these four accounting and reporting requirement rule modifications in order to allow the Federal-State Joint Conference on Accounting Issues time to consider these and other accounting issues in formulating their recommendations to the Commission. These accounting and reporting rule changes are as follows: (1) The consolidation of Accounts 6621 through 6623 into Account 6620, with subaccounts for wholesale and retail; (2) the consolidation of Account 5230, Directory revenue, into Account 5200, Miscellaneous revenue; (3) the consolidation of the depreciation and amortization expense accounts (Accounts 6561 through 6565) into Account 6562, Depreciation and amortization expenses; and (4) the revised “Loop Sheath Kilometers” data collection in Table II of ARMIS Report 43-07.

The Commission extends from July 1, 2003 to January 1, 2004, the current suspension of the implementation of these four accounting and reporting requirement rule modifications. The Commission extends the suspension in order to avoid undue burdens associated with implementation of mid-year accounting and reporting requirement changes on the affected carriers, the Commission, and state regulatory commissions and to allow the Federal-State Joint Conference on Accounting Issues more time to formulate its recommendations to the Commission.

Part 54 rules are issued pursuant to the Communications Act of 1934, as amended. The purpose of the part 54 rules is to implement section 254 of the Communications Act of 1934, as amended, 47 U.S.C. 254. The final regulation that is subject to the correction deals with § 54.709 and how carriers are to compute their required contributions to the universal service support mechanism.

As published, the final regulation contains an error which needs to be corrected.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-99, adopted June 13, 2003, and released June 23, 2003. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com .