On June 15, 2004, OPM published final regulations at 69 FR 33271, to implement provisions of the Chief Human Capital Officers Act of 2002 (Act), Public Law 107-296. This Act provides Federal agencies with a number of human resources flexibilities to enhance their recruitment and hiring programs. These flexibilities include the alternative (category) rating and selection procedures.

The alternative ranking and selection procedures were codified in section 3319 of title 5, United States Code (U.S.C.). This section provides agencies with the authority to develop a category-based rating method to assess and rate job applicants for positions filled through the competitive examining process. Traditionally, applicants for Federal jobs are assigned numerical scores, including veterans' preference points, if appropriate, and are considered for selection based on the “rule of three” (5 U.S.C. 3318(a)).

Section 3319(b) protects the rights of veterans by placing them ahead of non-preference eligibles within each category in lieu of adding veterans' preference points or applying the “rule of three.” For all positions other than scientific and professional positions at GS-9 (equivalent or higher), qualified preference eligibles that have a compensable service-connected disability of at least 10 percent must be listed in the highest quality category.

Section 3319(c)(2) prohibits appointing officials from passing over a preference eligible in the same quality category from which a selection is made to select a non-preference eligible unless the requirements of section 3317(b) or 3318(b) are satisfied.

OPM is issuing a proposed regulation designating sections 3319(b) and (c)(2) as veterans' preference requirements for purposes of section 2302(b)(11). OPM's authority to designate in regulation a provision of law as a “veterans' preference requirement” is prescribed in section 2302(e)(1)(G).

Section 2302(b) defines actions that constitute prohibited personnel practices. Section 2302(b)(11)(A) provides that an employee shall not, “knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement”. Section 2302(b)(11)(B) provides that an employee shall not “knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement”. As a result of this designation, failure to comply with section 3319(b) or (c)(2) constitutes a prohibited personnel practice under section 2302(b)(11).

The purpose of this designation is to align sections 3319(b) and (c)(2) with the other statutory provisions covering veterans' preference that are listed in section 2302(e)(1) as constituting veterans' preference requirements.

This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866.

I certify that these regulations would not have a significant economic impact on a substantial number of small entities (including small businesses, small organizational units, and small governmental jurisdictions) because they would only apply to Federal agencies and employees.

Accordingly, OPM is proposing to amend 5 CFR part 337 as follows:

The Agricultural Marketing Act of 1946 (AMA), as amended, (7 U.S.C. 1621, et seq.), gives AMS the authority to provide services so that agricultural products may be marketed to their best advantage, that trade may be facilitated, and that consumers may be able to ascertain characteristics involved in the production and processing of products and obtain the quality of product they desire. AMA also provides for the collection of fees from users of these services that are reasonable and cover the cost of providing services.

The QSVP were developed in 1995 and have since grown to include several value-added marketing programs. The QSVP have grown steadily over the past few years, with auditors conducting 385 assessments in FY 2001, 562 assessments in FY 2002, and 715 assessments in 2003, and 915 assessments in 2004. Presently, 14 full-time auditors conduct assessments for the LS Program.

QSVP are voluntary, audit-based, user-fee funded programs developed and conducted at the request of industry and others as a cost-effective alternative to conventional product certification. QSVP use International Organization for Standardization's (ISO) Guidelines and standards as a format for evaluating program documentation to ensure consistent assessment practices and promote international recognition of assessment results.

Currently, QSVP user-fees are based on the approved hourly rate established for meat grading and certification services provided by the Meat Grading and Certification (MGC) Branch pursuant to 7 CFR part 54. Following the initial program development period, LS Program management conducted a detailed cost analysis of QSVP services and determined that the existing hourly rate established for meat grading and certification services did not sufficiently cover the cost of providing QSVP services. Due to the complexity of planning, performing and interpreting the results of assessments, auditor positions are classified at the GS-11/12 pay grade, in contrast to the GS-5/7/9 pay grade classifications of most MGC Branch full-time positions.

Upon considering all QSVP operational expenses, the LS Program determined that the actual cost of QSVP services, excluding travel costs, to be $108 per hour. LS Program management considered employee salaries and benefits; Agency and LS Program overhead; total revenue hours available to the ARC Branch; and included other anticipated costs such as, federally mandated pay raises through FY 2005, rent, communications, utilities, contractual services, supplies, and equipment in their analysis.

The LS Program considered alternatives to creating a separate user-fee for QSVP services, but found that none were sufficient. Maintaining the same user-fee for QSVP services currently used for conventional meat grading and certification services would not sufficiently cover the cost of providing QSVP services. Another option was to terminate all QSVP services, which would adversely affect producers, businesses, and consumers who desire QSVP services and those entities with already-established programs.

The QSVP were administered through the LS Program's MGC Branch pursuant to 7 CFR part 54 using the user-fee schedule established for meat grading and certification services. In 2001, the administration of QSVP was moved by the LS Program to the Audit, Review, and Compliance (ARC) Branch. This proposed rule would establish a separate user-fee of $108 per hour for QSVP services under a new part 62. Additionally, this proposed rule would expand the scope of QSVP services to include all agricultural products or services within the responsibility of the LS Program, such as livestock, meat, meat products, seed, feedstuffs, as well as processes involving the production of these products, agricultural product data storage, product traceability and identification. Currently, Part 54 only provides for services dealing with meat and meat products. A new Part 62 would be established for QSVP services.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect and would not preempt or supersede any State or local laws, regulations, or policies, unless they present an irreconcilable conflict. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA)(5 U.S.C. 601 et seq.), the Agricultural Marketing Service (AMS) has considered the economic effect of this action on small entities and has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities. The purpose of RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly burdened.

AMS, through the LS Program's ARC Branch, provides voluntary assessment services to approximately 415 businesses, including 152 livestock slaughterers, 72 meat processors, 46 livestock producers feeders, 135 organic certifying companies, 4 trade associations, and 4 State and Federal entities. Seventy-five percent (i.e., 346) of these businesses are classified as small entities and generate approximately 65 percent of the ARC Branch's revenue. The Small Business Administration (SBA) (13 CFR 121.201) defines small agricultural producers as those having annual receipts of less than $750,000; small agricultural service firms as those whose annual receipts are less than $5 million; and small meat packers as those that have less than 500 employees. No entity, small or large, is obligated to use voluntary QSVP services provided under the authority of AMA.

AMS regularly reviews its user-fee-financed programs to determine if the fees are adequate to cover the cost of the services provided. The most recent review determined that the existing hourly rate that the ARC Branch charges for QSVP services would not generate sufficient revenues to recover operating costs for current and near-term periods while maintaining a 4-month operating reserve of $275,000. In FY 2004, the ARC Branch incurred a $330,000 operating loss; and without a fee increase, FY 2004 operating losses are projected to reach $421,000. These combined losses will deplete the ARC Branch's operating reserve and place the ARC Branch in an unstable financial position that will adversely affect its ability to provide QSVP services.

While the ARC Branch has utilized existing automated information management systems for data collection, retrieval, dissemination, applicant billing, and disbursement of employee entitlements, the ARC Branch has continued to lose revenue due to the cost of providing QSVP services utilizing auditors classified at the GS-11/12 pay grade while charging a user-fee that is based on a lower GS-5/7/9 pay grade classification.

The ARC Branch operating costs increased as a result of higher salaries associated with higher grade employees; congressionally mandated salary increases for all Federal Government employees in 2004 and 2005; ongoing information system technology upgrades necessary to remain compatible with customer and Agency systems; inflation of non-salary operating expenses; and office maintenance expenses.

AMS estimates that this proposed action will provide the ARC Branch with an additional $420,000 for FY 2005. Of this $420,000, small businesses would pay an average of $878 more per year per applicant or a total of $273,000 of the total increase. This proposed fee increase coupled with a projected increase in revenue hours would increase total revenues by $420,000 per year and offset FY 2004 operating losses of $330,000. Currently, without a fee increase, the ARC Branch is projected to lose $420,000 in FY 2005. The proposed increase will create a 4-month operating reserve of $275,000, as required by the Agency.

The proposed Part 62 includes sections on definitions; sections related to providing services, including availability and how to apply for services; and suspension, denial, or cancellation of service and other sections relating to fees. These sections are similar to, or the same as, provisions that currently apply to Quality Systems Verification Programs.

This proposed rule contains submission and recordkeeping requirements subject to public comment and review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. Chapter 35).

OMB Number: 0581-0124.

Expiration Date: October 31, 2006.

Type of Request: Revision of currently approved collection.

Abstract: The QSVP are voluntary, audit-based programs developed at the request of the livestock industry and other interested parties as a cost-effective alternative to conventional product certification. This proposed rule would permit the LS Program to carry out independent assessments of applicant's programs for any agricultural product or service within the scope of the LS Program. This action is necessary to provide continued, seamless, and efficient distribution of highly differentiated agricultural products and services to customers who require production and marketing process assessments by an authorized government entity. The information collection and recordkeeping requirements in this proposed rule are essential to maintaining these voluntary programs. Only authorized representatives of the USDA, including AMS, LS Program, ARC Branch staff use the collected information in the performance of their official duties.

The AMA, as amended, authorizes the USDA to provide services that facilitate the marketing of agricultural products. Currently, the LS Program provides QSVP services for livestock, meat, and meat products, pursuant to 7 CFR part 54. This proposed rule would define QSVP services to include other agricultural products within the scope of the LS Program in a new part, part 62 to Title 7 of the Code of Federal Regulations.

Applicants may request QSVP services through submission of the currently approved form LS-313 to the ARC Branch. This existing form requires the minimum information necessary to effectively carry out the requirements of the proposed rule including: firm name, address, telephone number, and other information necessary to identify the applicant, and other pertinent information necessary to determine if the firm is eligible to apply and receive QSVP services. Applicants are required to complete the form only when initially applying for QSVP service. There is no annual requirement for resubmission. The form can be supplied without data processing equipment or outside technical expertise. AMS estimates the one-time burden for submission of Form LS-313 to average 0.200 hours (12 minutes) per applicant at $20.00 per hour. The total one-time burden if 50 applicants applied under this proposed rule is estimated to be $200.00.

Applicants may obtain form LS-313 by (1) Contacting James L. Riva, Chief; USDA, AMS, LS, ARC Branch; STOP 0294, Room 2627-S; 1400 Independence Ave., SW., Washington, DC 20250-0294; (2) downloading a printable version at the ARC Branch Web site: http://www.ams.usda.gov/lsg/arc/audit.htm; or (3) accessing a Web-based version at the AMS Electronic Forms Web site: http://151.121.3.189/EManager/new.htm.

Applicants may submit form LS-313 by (1) mail to: James L. Riva, Chief; USDA, AMS, LS, ARC Branch; STOP 0294, Room 2627-S, 1400 Independence Avenue, SW., Washington, DC 20250-0248; (2) FAX to: (202) 690-1038; or e-mail to: ARCBranch@usda.gov.

Under this proposed rule, applicants would be required to submit a cover letter and a complete copy of the applicant's program documentation when a request for service is made. This is a one-time requirement per service request. The PRA also requires the agency to measure the recordkeeping burden. The proposed rule would also require applicants to retain records and documents necessary to support the requested service for the period of at least one calendar year following the year the record was created and long enough to assess conformance of the product though the applicant's quality management system. Additionally, applicants must ensure that such records and documents are readily available and easily accessible. The recordkeeping burden is the amount of time needed to prepare, store, and maintain documents.

Based on its experience with QSVP, AMS understands that applicants develop and maintain complete documentation of their programs as a normal business practice. AMS believes the cost burden associated with submission of complete program documentation to be limited to the time needed for the applicant to review the documentation for completeness and accuracy. AMS estimates this time to average 24 hours per applicant at $20.00 per hour for a total one-time burden per applicant of $480.00. The total one-time burden if 50 applicants applied under this proposed rule is estimated to be $24,000.

Based on its experience, AMS believes that the documents and records required to be retained are normally retained by applicants as part of their normal business practices. However, if record keepers were compensated for their time, AMS estimates that the time required for each applicant to retain these records and documents in a manner required in the proposed rule to average 6 hours per year at $20.00 per hour for a total annual burden of $120.00 per applicant. Assuming that 50 applicants were retained under this proposed rule, the total annual burden is estimated to be $6,000.

(1) Application for Service form LS-313.

Estimate of Burden: The proposal to expand the scope of the QSVP to include all agricultural products and services within the responsibility of the LS Program will increase the approved burden by 1210 hours. Using the currently approved form LS-313, the public reporting burden for this proposed collection of information is estimated to average 0.20 hours (12 minutes) per response.

Respondents: Livestock, meat industry, and other businesses that produce, process, or handle agricultural products or services.

Estimated Number of Respondents: 50.

Estimated Number of Responses per Respondent: 1.

Estimated Total Number of Responses: 50.

Estimated Total Annual Burden on Respondents: 10.00 hours.

Estimated Total Cost: $200.00.

(2) Review and Submission of Program Documentation.

Estimate of Burden: Public reporting burden for this proposed collection of information is estimated to average 24 hours per respondent.

Respondents: Livestock, meat industry, and other businesses that produce, process or handle agricultural products or services.

Estimated Number of Respondents: 50.

Estimated Number of Responses per Respondent: 1.

Estimated Total Number of Responses: 50.

Estimated Total Annual Burden on Respondents: 1200 hours.

Estimated Total Cost: $24,000.

Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's burden estimate of the collection of information including the validity of the methodology and assumptions used; (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 on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments should reference OMB No. 0581-0124, the QSVP, and be sent to (1) Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725 17th Street, NW., Room 725, Washington, DC 20503; or by e-mail to: OIRA_submissions@OMB.eop.gov and (2) James L. Riva, Chief; USDA, AMS, LS, ARC Branch; STOP 0294, Room 2627-S, 1400 Independence Avenue, SW., Washington, DC 20250-0248; or FAX (202) 690-1038; or e-mail ARCBranch@usda.gov. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

All comments will be posted on the Internet at http://www.ams.usda.gov/lsg/rulemaking.htm and will be made available for public inspection in the above offices during regular business hours.

A 30-day comment period is provided for interested persons to comment on this proposed rule. This comment period is deemed appropriate in order to implement this rule, if adopted, as soon as possible so that program costs are covered by revenue.

All responses to this proposed rule will be summarized and included in the request for OMB approval. All comments will become a matter of public record.

For the reasons set forth in the preamble, it is proposed that chapter 1 of title 7 of the Code of Federal Regulations be revised by amending part 54 and adding part 62 to read as follows:

This proposed rule has been reviewed under Executive Order 12866 and determined not to be significant and has not been reviewed by the Office of Management and Budget (OMB).

The Catalog of Federal Domestic Assistance number for the program impacted by this action is 10.768, Business and Industry Loans.

Business and Industry Guaranteed Loans are subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. RBS will conduct intergovernmental consultation in the manner delineated in and 7 CFR part 3015, subpart V, “Intergovernmental Review of Rural Development Programs and Activities.”

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this rule, (1) all State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given this rule; and (3) administrative proceedings of the National Appeals Division (7 CFR part 11) must be exhausted before bringing suit in court challenging action taken under this rule.

This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” RBS has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and in accordance with the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq, this regulation is a Categorical Exclusion. Loan applications will be reviewed individually to determine compliance with NEPA.

Title II of the Unfunded Mandates Reform Act 1995 (UMRA) of, Pub. L. 104-4 of 1995, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, RBS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector of $100 million or more in any 1 year. When such a statement is needed for a rule, section 205 of UMRA generally requires RBS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

In compliance with the Regulatory Flexibility Act, RBS has determined that this action would not have a significant economic impact on a substantial number of small entities, because the action will not affect a significant number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601). RBS made this determination based on the fact that this regulation only impacts those who choose to participate in the program. Small entity applicants will not be impacted to a greater extent than large entity applicants.

It has been determined that, under Executive Order 13132, Federalism, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various levels of government.

Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, imposes requirements on USDA in the development of regulatory policies that have tribal implications or preempt tribal laws. USDA has determined that the proposed regulation does not have a substantial direct effect on one or more Indian tribe or on either the relationship or the distribution of powers and responsibilities between the Federal Government and the Indian tribes. Thus, the proposed rule is not subject to the requirements of Executive Order 13175.

In accordance with the Paperwork Reduction Act of 1995, the Agency will seek OMB approval of the reporting requirements contained in this regulation. These reporting and recordkeeping requirements have been previously approved under OMB control number 0570-0017. The estimate of burden is as follows:

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 30 minutes per response.

Respondents: Lenders and business owners.

Estimated Number of Respondents: 142 (based on 1 year).

Estimated Number of Responses per Respondent: 1.

Estimated Number of Responses: 142.

Estimated Total Annual Burden of Respondents: 71 hours.

Copies of this information collection can be obtained from Cheryl Thompson, Regulations and Paperwork Management Branch, Support Services Division at (202) 692-0043.

Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of RBS, including whether the information will have practical utility; (b) the accuracy of RBS's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of the information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Cheryl Thompson, Regulations and Paperwork Management Branch, Support Services Division, U.S. Department of Agriculture, Rural Development, STOP 0742, 1400 Independence Ave., SW., Washington DC 20550. All responses to the notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

Pursuant to the Debt Collection Improvement Act of 1996 (DCIA), the Agency is required to send debt owed to the Government to the Department of the Treasury (Treasury) for collection. The DCIA covers both guaranteed and direct loans made by the Agency. Some ambiguity has existed regarding the Agency's ability to collect from guarantors of the borrower's loan. This rule will end that ambiguity by clearly making guarantors personally liable for any claims paid by the Government.

The Agency proposes to establish more uniformity in the guarantees being obtained by lenders. This should result in the program being administered more consistently and the Government recovering more of its loss claims. Currently, guaranteed lenders prepare non-uniform, personal, or corporate guarantees. When there is a loss on the guaranteed loan, the lender pursues these guarantees with mixed recovery results. By implementing this rule, the Agency will treat all guarantors consistently, collect more money on its loss claims, and rectify any ambiguities regarding its ability to refer these debts to Treasury.

Therefore, chapter XLII, title 7, Code of Federal Regulations, is amended as follows:

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-20882; Directorate Identifier 2004-NM-241-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received a report indicating that an operator found, during a heavy maintenance visit, that the emergency control mechanism handles of the mid, overwing, and aft passenger doors were inoperative on a McDonnell Douglas MD-11 airplane. Investigation revealed that the six steel bearings in each control mechanism were corroded and had seized. This condition, if not corrected, could lead to failure of the passenger doors to operate properly in an emergency condition, which could delay an emergency evacuation and possibly result in injury to passengers and flightcrew.

The subject area on certain McDonnell Douglas Model DC-10-10,

DC-10-10F, DC-10-15, DC-10-30, DC-10-30F (KC-10A and KDC-10), DC-10-40, DC-10-40F, MD-10-10F, MD-10-30F, and MD-11F airplanes is almost identical to that on the affected Model MD-11 airplanes. Therefore, all of these models may be subject to the same unsafe condition.

Operators should note that a notice of proposed rulemaking (NPRM), docket identifier 2001-NM-359-AD, applicable to certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F (KC-10A and KDC-10), DC-10-40, DC-10-40F, MD-10-10F, MD-10-30F, MD-11 and MD-11F airplanes, was published in the Federal Register on November 12, 2003 (68 FR 64006). That NPRM proposed to require repetitive operation of the exterior emergency door handle of the forward passenger door to determine if binding exists in the exterior emergency control handle mechanism, and corrective actions if necessary.

We have reviewed McDonnell Douglas Service Bulletin MD11-52-044 and Service Bulletin DC10-52-219; both Revision 1; both dated September 3, 2004. The service bulletins describe procedures for, among other things, repetitive functional tests for noisy or improper operation of the exterior emergency control handle assemblies of the mid, overwing, and aft passenger doors, and corrective actions if necessary. Corrective actions include replacing the steel bearings with bearings made from corrosion-resistant material. The service bulletins also indicate that replacing the steel bearings as described provides optional terminating action for the repetitive tests. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.

Operators should note that this proposed AD allows operators to continue the repetitive functional tests instead of doing the terminating action. In making this determination, the FAA considers that, in the case of this AD, long-term continued operational safety is adequately assured by doing the repetitive functional tests to detect binding before it represents a hazard to the airplane, and by doing corrective actions within the specified time limits.

The service information also describes procedures for installing lube fittings in the emergency control handle assemblies to minimize the possibility that binding of the exterior door free fall handle mechanisms would prevent the passenger doors from free falling to the closed position. Installing the lube fittings does not help to correct the unsafe condition specified by this proposed AD and would therefore not be required by this proposed AD.

The service information is applicable to all mid, overwing, and aft passenger doors. However, some of these doors may have been fastened shut to render them inoperable according to some approved freighter configurations. Such doors would not be subject to the requirements of this proposed AD.

There are about 633 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 218 airplanes of U.S. registry. The following table provides the estimated costs, at an average labor rate of $65 per work hour, for U.S. operators to comply with this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 proposed 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Discussion

We proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with a notice of proposed rulemaking (NPRM) for a new AD for certain Bombardier Model CL-600-2B16 (CL-604) series airplanes. That NPRM was published in the Federal Register on November 9, 2004 (69 FR 64869). The NPRM would have required replacing the side-brace fitting shafts of the main landing gear (MLG) with new, improved side-brace fitting shafts; inspecting for corrosion of the MLG side-brace fitting shafts; and replacing the nut, washer, and cotter pin of the MLG side-brace fitting shafts with new parts; as applicable. The NPRM was prompted by the discovery of fractures of the MLG side-brace fitting shafts caused by corrosion on the forward side of the side-brace fitting shafts. The proposed actions were intended to prevent fracture of the MLG side-brace fitting shafts, which could result in collapse of the MLG.

Since we issued the NPRM, the airplane manufacturer has informed us that all airplanes identified in the applicability section of the NPRM have already accomplished the actions specified in Bombardier Alert Service Bulletin A604-32-018, Revision 01, dated February 22, 2002, which would have been required by the proposed AD. Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, has also confirmed that the proposed requirements have already been accomplished on all affected airplanes.

Upon further consideration, we have determined that it is unnecessary to issue the proposed AD. Accordingly, the NPRM is withdrawn.

Withdrawal of the NPRM does not preclude the FAA from issuing another related action or commit the FAA to any course of action in the future.

Since this action only withdraws an NPRM, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Accordingly, we withdraw the NPRM, Docket No. FAA-2004-19563, Directorate Identifier 2003-NM-10-AD, which was published in the Federal Register on November 9, 2004 (69 FR 64869).

We invite you to submit any written data, views, or arguments regarding this proposed AD. Send your comments to the address listed under the caption ADDRESSES. Include the docket number “FAA-2005-20863, Directorate Identifier 2004-SW-36-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed rulemaking. Using the search function of our docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent or signed the comment. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

You may examine the docket that contains the proposed AD, any comments, and other information in person at the Docket Management System (DMS) Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located at the plaza level of the Department of Transportation NASSIF Building in Room PL-401 at 400 Seventh Street, S.W., Washington, DC. Comments will be available in the AD docket shortly after the DMS receives them.

The Direction Generale de l'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on the specified ECF Model AS350 and AS355 helicopters. The DGAC advises of the formation of ice in some parts of the hydraulic system during flights in cold weather and when the hydraulic fluid is highly contaminated by water.

ECF has issued Alert Service Bulletin Nos. 05.00.43 and 05.00.45, both dated April 8, 2004, which specify provisions for replacing hydraulic fluid in cold weather. The DGAC classified these service bulletins as mandatory and issued AD Nos. F-2004-055 and F-2004-056, both dated April 28, 2004, to ensure the continued airworthiness of these helicopters in France.

These helicopter models are manufactured in France and are type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, the DGAC has kept us informed of the situation described above. We have examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of these type designs that are certificated for operation in the United States.

The previously described unsafe condition is likely to exist or develop on other helicopters of the same type designs registered in the United States. Therefore, the proposed AD would require, if the outside air temperature in an FAA weather briefing is forecast to be below negative 15 degrees Celsius (5 degrees Fahrenheit) at or below your planned flight altitude and the hydraulic fluid has not been replaced within the past 100 hours time-in-service or within the past 30 days, whichever occurred first, before further flight, replace the hydraulic fluid. The actions would be required to be accomplished following the service bulletins described previously.

We estimate that this proposed AD would affect 556 helicopters of U.S. registry, and the proposed actions would take about:

• 2 work hours to replace the hydraulic fluid per helicopter at an average labor rate of $65 per work hour; and

• $6 for hydraulic fluid each time it is changed.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. Additionally, this proposed AD would 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 proposed 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 draft economic evaluation of the estimated costs to comply with this proposed AD. See the DMS to examine the draft economic evaluation.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

The Commission's Picture Tube Rule, like the other trade regulation rules issued by the Commission, “define[s] with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce. Such rules may include requirements prescribed for the purpose of preventing such acts or practices. A violation of a rule shall constitute an unfair or deceptive act or practice in violation of section 5(a)(1) of the [Federal Trade Commission] Act, unless the Commission otherwise expressly provides in its rule.” 16 CFR 1.8.

The Picture Tube Rule, promulgated in 1966, sets forth the appropriate means for disclosing the method by which the dimensions of television screens are measured, when this measurement is included in any advertisement or promotional material for the television set. The purpose of the Rule is to establish uniformity in measuring television screens, and advise consumers of this method, thereby aiding comparison shopping for televisions. Under the Rule, any representation of the screen size must be based on the horizontal dimension of the actual, viewable picture area. Using any other measurement is unfair and deceptive, unless the method of measurement is clearly and conspicuously disclosed in close proximity to the size designation. The Rule notes that the horizontal measurement must not take into account any curvature of the tube. Further, disclosing the method of measurement in a footnote rather than in the body of the advertisement does not constitute a disclosure in close proximity to the measurement. The Rule includes examples of both proper and improper representations of size descriptions.

In 1994, the Rule was amended to clarify some of the Rule's compliance illustrations, provide metric equivalents for the measurements stated in inches in the Rule's examples, and add a new Note 3 to the Rule to explain that the inclusion of metric figures is for information purposes only and does not impose a requirement on the industry to use metric measurements. 59 FR 54809 (Nov. 2, 1994).

Since the Rule was last subject to regulatory review and amended in 1994, broadcasting and television technology have advanced significantly, and an array of new types of televisions are available in the marketplace for consumers. The technological change with the closest nexus to the Rule is the introduction of digital television, including high definition television, and the advent of new wider screen televisions to display these enhanced digital pictures. New television display technologies available today include thin, flat panel televisions with either liquid crystal displays or plasma display panels. In addition, there have been advances in the quality and popularity of front and rear, big screen, projection televisions. Accordingly, the Commission seeks comment on the effect, if any, that advances in television technology have had on the Rule.

The Commission has determined to review all Commission rules and guides periodically. These reviews seek information about the costs and benefits of the Commission's rules and guides and their regulatory and economic impact. The information obtained assists the Commission in identifying rules and guides that warrant modification or rescission. Therefore, the Commission solicits comment on, among other things, the economic impact of its Picture Tube Rule; possible conflict between the Rule and state, local, or other federal laws; and the effect on the Rule of any technological, economic, or other industry changes.

The Commission solicits written public comment on the following questions:

(1) Is there a continuing need for the Rule as currently promulgated?

(2) Has the television industry adopted the Rule's disclosure requirements as part of its routine business practice? If so, how, and what effect, if any, does this have on the continuing need for the Rule?

(3) What benefits has the Rule provided to purchasers of the products or services affected by the Rule?

(4) Has the Rule imposed costs on purchasers?

(5) What changes, if any, should be made to the Rule to increase the benefits of the Rule to purchasers? How would these changes affect the costs the Rule imposes on firms subject to its requirements? How would these changes affect the benefits to purchasers?

(6) What significant burdens or costs, including costs of compliance, has the Rule imposed on businesses, whether large or small, subject to its requirements? Has the Rule provided benefits to such businesses? If so, what benefits?

(7) What changes, if any, should be made to the Rule to reduce the burdens or costs imposed on firms subject to its requirements? How would these changes affect the benefits provided by the Rule?

(8) Does the Rule overlap or conflict with other federal, state, or local laws or regulations?

(9) Since the Rule was issued, what effects, if any, have changes in relevant television technology, such as the 16:9 aspect ratio for high definition television displays, marketing methods, such as online sales, or economic conditions had on the Rule?

The regulations in title 27, Code of Federal Regulations (CFR), part 479 implement the provisions of the National Firearms Act (NFA), 26 U.S.C. 5801 et seq. Part 479 contains the procedural and substantive requirements relative to the importation, manufacture, making, exportation, transfer, taxing, identification and registration of, and the dealing in, machine guns, destructive devices, and certain other firearms. All NFA firearms that are not in possession or control of the United States government must be registered. Possession of an unregistered NFA firearm is a violation of Federal law and subjects the possessor to criminal prosecution and the seizure and forfeiture of the firearm.

For purposes of the NFA, the term “firearm” includes “any other weapon,” which in turn is defined in the law (26 U.S.C. 5845(e)) and its implementing regulation at 27 CFR 479.11 as follows:

The term “pistol” is defined in 27 CFR 479.11 to mean:

This notice seeks to amend the regulation that defines “pistol” to restore language that was inadvertently removed in 1988 and insert language that more clearly defines exceptions to the “pistol” definition. The language added to the regulation is necessary to clarify that certain weapons, including weapons disguised to look like items other than firearms, are not pistols and are classified as “any other weapon” under the NFA and subject to that Act's requirements.

The current definition of “pistol” in section 479.11 dates back to amendments made in 1988, 53 FR 10480 (Mar. 31, 1988). Prior to amendment, the term was defined to read as follows:

The Department believes that the NFA definition of the term “pistol” should be revised to more accurately reflect the Department's position concerning the weapons subject to regulation under the “any other weapon” category of the NFA. The term “fixed” has been added to paragraph (a)(2) of the regulatory definition to clarify that weapons with a short stock permanently affixed at an angle to the bore can be classified as “pistols.”

In addition, the regulation will now include language which makes it clear that certain weapons that are particularly concealable and difficult to readily identify as firearms are regulated under the NFA. This will allow the Department to regulate certain weapons that pose significant public safety and security risks in this post 9/11 era. The types of weapons covered by this language include, but are not limited to, belt buckle guns, penguns, wallet guns, gadget devices, and devices commonly known as pager guns. These weapons are particularly hazardous, as they may easily pass through airport or other security posts or metal detectors without being recognized as firearms. Furthermore, such highly concealable weapons can be particularly appealing to prohibited persons, terrorists, or others who may misuse firearms because such weapons can be carried and even used without detection. By regulating these specific types of weapons pursuant to the NFA, the Department can more directly address these heightened security concerns and protect the public from the dangers posed by hidden weaponry.

Accordingly, the proposed definition of “pistol” in section 479.11 would read as follows:

Omitted from the proposed regulation is the language: “any gun altered or converted to resemble a pistol.” This language mirrors the statutory provisions in 26 U.S.C. 5845(a)(2) and (4) that refer to weapons made from a shotgun or rifle. The NFA adequately reflects the Department's consistent position that a rifle or shotgun, altered to function as a smaller, pistol-like weapon, maintains its classification as a rifle or shotgun and will not be classified as a pistol. Therefore, the addition of this language into the proposed regulation is unnecessary.

Proposed omissions should not be read as an intention to regulate a narrower category of “any other weapons” than those previously classified by ATF under the NFA and implementing regulations.

If adopted as a final rule, the proposed amendment to the definition of “pistol” will be applied to previous and future classifications of firearms disguised to look like an item other than a firearm. If a firearm previously classified as a pistol is found to be an “any other weapon” pursuant to the proposed definition, manufacturers, current owners, and those persons who wish to purchase such a weapon would be subject to the restrictions and regulations imposed by the NFA, including background checks, registration and making/transfer tax.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. The Attorney General has reviewed this proposed rule and, by approving it, certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. The proposed rule merely restores language in the definition of the term “pistol” that was inadvertently removed due to an administrative oversight.

This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This proposed rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. This proposed rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this proposed rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review. Accordingly, this proposed rule has been submitted to the Office of Management and Budget for review.

This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Department of Justice has determined that this proposed rule does not have sufficient federalism implications to warrant a federalism summary impact statement.

This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

This proposed rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

ATF is requesting comments on the proposed regulations from all interested persons. ATF is also specifically requesting comments on the clarity of this proposed rule and how it could be made easier to understand.

Comments received on or before the closing date will be carefully considered. Comments received after that date will be given the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before the closing date.

ATF will not recognize any material in comments as confidential. Comments may be disclosed to the public. Any material that the commenter considers to be confidential or inappropriate for disclosure to the public should not be included in the comment. The name of the person submitting a comment is not exempt from disclosure.

You may submit written comments by facsimile transmission to (202) 927-0506. Facsimile comments must:

• Be legible;

• Include your mailing address;

• Reference this document number;

• Be 81/2″ x 11″ in size;

• Contain a legible written signature; and

• Be not more than five pages long.

ATF will not acknowledge receipt of facsimile transmissions. ATF will treat facsimile transmissions as originals.

Any interested person who desires an opportunity to comment orally at a public hearing should submit his or her request, in writing, to the Director of ATF within the 30-day comment period. The Director, however, reserves the right to determine, in light of all circumstances, whether a public hearing is necessary.

Copies of this proposed rule and the comments received will be available for public inspection by appointment during normal business hours at: ATF Reference Library, Room 6480, 650 Massachusetts Avenue, NW., Washington, DC 20226, telephone (202) 927-7890.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in the Federal Register in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

The author of this document is James P. Ficaretta; Enforcement Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Accordingly, for the reasons discussed in the preamble, 27 CFR part 479 is proposed to be amended as follows:

On January 26, 2005 (70 FR 3840), we published a proposed rule that would revise our regulations for, and related to, the transfer, assignment, or sale of permit rights. The proposed rule effectuates a settlement agreement we entered into with the National Mining Association (NMA) in connection with NMA's judicial challenge to certain provisions of our December 19, 2000, final ownership and control rule (2000 ownership and control rule or 2000 rule). In the proposed rule, we propose to: (1) Revise the regulatory definitions of transfer, assignment, or sale of permit rights and successor in interest; (2) revise the regulatory provisions relating to transfer, assignment, or sale of permit rights; and (3) create separate rules for successors in interest. The primary purpose of the proposed rule is to distinguish clearly the circumstances that will constitute a transfer, assignment, or sale of permit rights (requiring a regulatory authority's approval and, at a minimum, a permit revision) or result in a successor in interest (requiring the issuance of a new permit) from those that will only require a permittee to provide information updates. The proposed rule also affords us an opportunity to ensure our rules are consistent with recent legal developments. The proposed rule does not suspend or withdraw any of the provisions of our 2000 ownership and control rule, nor does it affect any of our proposed revisions to the 2000 rule published on December 29, 2003. This proposed rule is authorized under the Surface Mining Control and Reclamation Act of 1977, as amended. For a full explanation of the proposed rule, please refer to the rule text and preamble.

The comment period on the proposed rule was originally scheduled to close on March 29, 2005. In response to a telephone request for an extension, we are extending the comment period until April 15, 2005. Written or electronic comments may be submitted in accordance with the instructions provided in DATES and ADDRESSES above and in Part III of the preamble to the January 26, 2005, proposed rule.

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD09-05-005), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Coast Guard Marine Safety Office Cleveland at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

This safety zone is necessary to protect the participants in the Cleveland Triathlon, held annually on the third Sunday of July, from hazards associated with swimming in close proximity to recreational watercraft in Cleveland Harbor off of Voinovich Park in Cleveland, OH. The Captain of the Port has determined that this event poses a threat to the participants as well as spectator vessels due to the hazards associated with these events. The Captain of the Port has determined that swimming in close proximity to watercraft poses a risk to safety and property.

The combination of large numbers of inexperienced recreational boaters, congested waterways, and the use of commercially transited waterways could easily result in serious injuries or fatalities.

Establishing a safety zone by notice and comment rulemaking gives the public an opportunity to comment on the proposed zone and provides better notice than promulgating temporary final rules each year.

The Coast Guard is proposing a safety zone in Cleveland Harbor, Cleveland, Ohio. The Safety would be enforced from 5 a.m. until 11 a.m. each year on the third Sunday in July. The safety zone would encompass all waters in Cleveland Harbor, to include the North Coast Harbor, originating at a line drawn from Pier 32, at position 41°30′36″ N, 081°42′56″ W, extending to position 41°30′43″ N, 081°42′03″ W, thence to Buoy 11 (LLNR 4135) at position 41°30′49″ N, 081°41′53″ W in Cleveland Harbor, thence to the Northeast corner of Municipal Pier at position 41°30′43″ N, 081°41′47″ W. These coordinates are based upon North American Datum 1983 (NAD 83).

The Coast Guard would notify the public in advance by way of Ninth Coast Guard District Local Notice to Mariners, marine information broadcasts, and for those who request it from Marine Safety Office Cleveland, by facsimile.

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

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

This determination is based upon the size and location of the safety zone within the waterway. Commercial vessels will not be hindered by the safety zone, as only a portion of the East Basin channel is restricted. Recreational vessels may transit through the safety zone with permission from the COTP Cleveland or his designated on-scene patrol commander.

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

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

This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the East Basin of Cleveland Harbor.

This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: Although the safety zone restricts the movement of vessels through a navigable channel, commercial vessels will be able to transit along the northern edge of the zone and all other recreational vessels will be able to transit the zone with the permission of the COTP Cleveland or his designated on-scene Patrol Commander. Before the effective period, the Coast Guard will issue maritime advisories to users who may be impacted through notification in the Federal Register, the Ninth District Coast Guard District Local Notice to Mariners, and through Marine Information Broadcasts and when requested by facsimile.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Allen Turner, U.S. Coast Guard Marine Safety Office Cleveland, 1055 East 9th Street, Cleveland, OH 44114.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

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

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

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

The Coast Guard has analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this proposed rule might impact tribal government, even if that impact may not constitute a “tribal implication” under that Order.

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

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.

Event participants swimming in the water pose no inherent risk to the surrounding environment, and a safety zone is needed to protect the participants. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” is not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

This notice proposes changes in the rules of practice in title 37 of the Code of Federal Regulations (CFR) pertaining to the availability of patent application files, persons acting with limited recognition in a patent matter, the filing of the English translation of foreign-language provisional applications, and the submission of evidence ownership when an assignee takes action in a patent matter and for recording in the Office's assignment records. The proposed changes concerning the availability of patent application files relate to § 1.11. The proposed changes concerning persons acting with limited recognition in a patent matter relate to §§ 1.4, 1.17, 1.31, 1.32, 1.33, 1.34, and 1.36. The proposed changes concerning the filing of the English translation of foreign-language provisional applications relate to § 1.78. The proposed changes concerning the submission of evidence ownership when an assignee takes action in a patent matter and for recording in the Office's assignment records relate to §§ 3.28, 3.31, 3.73, and 10.112.

Section 1.4: The title is proposed to be revised to read: “Nature of correspondence and Signature Requirements.” Section 1.4(d)(2) is proposed to be revised to delete “with a signature in permanent dark ink or its equivalent,” because dark ink applies to handwritten signatures, not S-signatures. Section 1.4(d)(2)(ii) is proposed to be revised to change “registered practitioner” to “patent practitioner (§ 1.32(a)(1))” and to insert “or limited recognition number” after “registration number” in two places so that a person acting with limited recognition can use an S-signature. The term “patent practitioner” is defined in § 1.32(a).

Section 1.11: Section 1.11(a) is proposed to be revised for clarity and to reflect the policy regarding availability to the public of papers in the files of applications that have been published. For example, § 1.11(a) is proposed to be revised to remove “abandoned” before “published application.” Published applications are not physically available to the public if the file was maintained in a paper file wrapper, but any electronic file relating to a published application is made available through the Patent Application Information Retrieval (PAIR) system pursuant to § 1.14(a)(1)(iii) and 1.14(b). Since most pending applications are now available through PAIR, the reference to only abandoned published applications in § 1.11 may have been misleading. In addition, § 1.11(a) is proposed to be revised to include: “If an application was published in redacted form pursuant to § 1.217, the complete file wrapper and contents of the patent application will not be available if: The requirements of paragraphs (d)(1), (d)(2), and (d)(3) of § 1.217 have been met in the application; and the application is still pending.”

Section 1.17: Section 1.17(f) is proposed to be revised to add “§ 1.36(a)—for revocation of a power of attorney by fewer than all of the applicants.” See the discussion of the proposed change to § 1.36(a). This proposed change would correct § 1.17 by including § 1.36(a) in the list of petitions for which a fee set forth in § 1.17 can be charged, and also groups the fee for a petition under § 1.36(a) with similar petitions (under § 1.182 and § 1.183).

Section 1.31: Section 1.31 is proposed to be revised to change the title to “Applicants may be represented by one or more patent practitioners or joint inventors” in order to make the title of the rule more descriptive of the proposed revised rule. A definition for “patent practitioner” is proposed to be added to § 1.32(a), as discussed below, and the term “patent practitioner” is proposed to be used in place of “registered patent attorney or agent” in § 1.31, and in other rules. Further, § 1.31 is proposed to be revised to indicate that one or more patent practitioners or joint inventors may be given a power of attorney, to thereby recognize that there may be a single person appointed or an appointment of more than one practitioner or joint inventor to represent the applicant. Section 1.32(c)(1) permits one or more joint inventors to be given power of attorney to represent the other joint inventor or inventors; accordingly, the revision to § 1.31 is necessary for consistency with § 1.32(c)(1). Furthermore, § 1.31 is proposed to be amended to delete the cross references to §§ 11.6 and 11.9, which would no longer be useful in view of the definition of patent practitioner proposed to be added to § 1.32(a).

Section 1.32: Section 1.32(a)(1) is proposed to be revised to set forth the definition of “patent practitioner” and to renumber sections (a)(1) to (a)(4) as (a)(2) through (a)(5), respectively.

Proposed new § 1.32(a)(1) defines the term “patent practitioner” as “a registered patent attorney or registered patent agent under § 11.6, or individual granted limited recognition to file or prosecute a patent application, or other patent proceeding, before the United States Patent and Trademark Office under § 11.9(a) or § 11.9(b).” This definition is consistent with the definition of “practitioner” in § 11.1 as “(1) An attorney or agent registered to practice before the Office in patent matters* * *or (3) An individual authorized to practice before the Office in a patent case or matters under § 11.9(a) or (b).” A person with limited recognition pursuant to § 11.9(a) and § 11.9(b) is not a registered patent practitioner, but is someone who has been given limited recognition to prosecute a patent application. Individuals granted limited recognition pursuant to § 11.9(a) are given such recognition for one or more specified patent applications or other patent proceedings. For example, a parent or spouse may be given limited recognition to represent the inventor where the inventor is competent and 35 U.S.C. 117 and § 1.43 do not apply. Limited recognition pursuant to § 11.9(b) is granted to individuals who have passed the patent examination and are U.S. residents, but are neither citizens of the U.S. nor permanent residents and thus are not eligible to become registered. Because these individuals have a visa to work in the U.S., they are accorded limited recognition consistent with the visa. The term “patent practitioner” is limited to those that are registered or authorized by the Office to act in patent matters.

Section 1.32(a)(1) is proposed to be renumbered as § 1.32(a)(2) and further revised to change “registered patent attorneys or registered patent agents” to “one or more patent practitioners or joint inventors” to reflect that one, or more than one, patent practitioner may be appointed in a power of attorney. Section 1.32(c) permits a power of attorney to be to one or more patent practitioners or joint inventors, and this change is consistent therewith.

Section 1.32(a)(2) is proposed to be renumbered as § 1.32(a)(3) and further revised to add “or, in a reexamination proceeding, the assignee of the entirety of ownership of a patent” to reflect that the assignee of the entire interest in a patent may authorize a patent practitioner to represent the assignee in reexamination proceedings, for example, in addition to patent applications. In addition, § 1.32(a)(3) is proposed to be revised to change “registered patent attorney or registered patent agent” to “patent practitioners” and “joint inventor” to “joint inventors.” As explained above, use of the term “patent practitioner” expands the rule to also apply to individuals granted limited recognition to file (present) or prosecute a patent application or other patent proceeding before the United States Patent and Trademark Office, as well as registered patent attorneys and registered patent agents.

Section 1.32(a)(3) is proposed to be renumbered as § 1.32(a)(4), and further proposed to be revised to change “registered patent attorney or registered patent agent” to “patent practitioner or joint inventor.”

Section 1.32(a)(4) is proposed to be renumbered as § 1.32(a)(5), and the resulting new paragraph § 1.32(a)(5)(i) is proposed to be revised to change “patent application or patent” to “patent application, patent or other patent proceeding” and the resulting new paragraph 1.32(a)(5)(iii) is proposed to be revised to delete “registered.”

Section 1.32(c)(3) is proposed to be revised such that the first sentence reads: “Ten or fewer patent practitioners, stating the name and registration number or limited recognition number of each patent practitioner.” The Office needs the registration number of the patent practitioner to make the practitioner of record. Because the former rules did not require a registration number, registration numbers were sometimes omitted, leading to delays in Office processing of powers of attorney. Accordingly, § 1.32(c)(3) is proposed to be amended to add a requirement for the registration number or limited recognition number of the patent practitioner to assist the Office in making the practitioner of record. Limited recognition numbers recently began to be assigned by the Office of Enrollment and Discipline.

Section § 1.33: Section 1.33(a) is proposed to be revised to use the generic term “patent practitioner” instead of “registered patent attorney or patent agent” so as to also include those acting with limited recognition. Specifically, § 1.33(a) is proposed to be amended to change “registered patent attorney or patent agent” to “patent practitioner” in two places. In addition, § 1.33(a)(1) is proposed to be amended to change “If the application was filed by a registered attorney or agent, any other registered practitioner named in the transmittal papers may also change the correspondence address” to “If the application was filed by a patent practitioner, any other patent practitioner named in the transmittal papers may also change the correspondence address.”

Section 1.33(b)(1) and § 1.33(b)(2) are proposed to be amended to change registered patent attorney or patent agent” to “patent practitioner.”

Section 1.33 is also proposed to be revised to add new paragraph (e) to remind patent practitioners that the attorney roster must be updated separately from individual patent applications. Section 1.33 is proposed to be revised to state: “(e) A change of address filed in a patent application or patent does not change the address for a patent practitioner in the roster of patent attorneys and agents. See § 11.11 of this part.”

Section 1.34: Section 1.34 is proposed to be revised to change “registered patent attorney or patent agent” to “patent practitioner” in two places, and change “must specify his or her registration number and name with his or her signature” to “must set forth his or her registration number, or limited recognition number, and his or her name and signature” in order to provide support for someone accorded limited recognition to act in a representative capacity.

Section 1.36: Section 1.36(a) is proposed to be revised to change § 1.17(h) to § 1.17(f). The fee for a petition to allow a split power of attorney should be the same regardless of whether the split power of attorney results from revocation by fewer than all of the inventors, as provided in § 1.36(a), or from a petition under § 1.183 to waive the provisions of § 1.32(b)(4) requiring that a power of attorney be signed by the applicant for patent (§ 1.41(b)) or the assignee of the entire interest of the applicant. Furthermore, “registered patent attorney or patent agent” is proposed to be changed to “patent practitioner.”

Section 1.78: Section 1.78(a)(2)(i) is proposed to be revised to add “, or international application designating the United States of America,” to require international applications to contain a specific reference to the earlier nonprovisional application.

Section 1.78(a)(5)(iv) is proposed to be revised to require the English translation of a provisional application to be filed in a provisional application, instead of also permitting the translation to be filed in each nonprovisional application that claims the benefit of the filing date of the provisional application. Section 1.78(a)(5)(iv) is also proposed to be revised to provide that applicant must file, in a nonprovisional application, confirmation of the filing of the translation and statement, when a notice is mailed in the nonprovisional application requiring the translation and statement. Currently, § 1.78(a)(5)(iv) provides that when, pursuant to 35 U.S.C. 119(e), benefit is being claimed to a provisional application which was filed in a language other than English, an English language translation of the provisional application, accompanied by a statement that the translation is accurate, must be filed in either: (a) the provisional application or (b) each nonprovisional application that claims the benefit of the provisional application. Thus, if the translation and statement are not filed in the provisional application, they may be filed in each application that claims the benefit of the filing date of the provisional application (to satisfy the requirement of the rule). A provisional application is open to the public if the benefit of the provisional application is claimed in an application that has either been published or patented. Where the translation and statement are not filed in the provisional application because they are filed in each nonprovisional application(s) claiming the benefit of the provisional application, there is a burden on the public in finding the translation and statement, and to the Office in storing possibly duplicate copies of the documents. Further, when a translation of the provisional application is filed in the nonprovisional application, the Office has sometimes confused the translation of the provisional with the specification papers to be used for the application. Since the option is available to file the translation and statement in the nonprovisional application, applicant's counsel may inadvertently choose that option in situations where there are many nonprovisional applications claiming the benefit of a single provisional application, and incur substantial expense for having to file a copy in each nonprovisional application. Having only one copy of the translation (and statement) “centrally” filed in the provisional application, regardless of how many nonprovisional applications claim benefit of that provisional application, would be beneficial for applicants, the public, and the Office. Accordingly, § 1.78(a)(5)(iv) is proposed to be revised to delete from the first sentence “or the later-filed nonprovisional application” to thereby eliminate the option to file the translation and statement in the nonprovisional application. Furthermore, § 1.78(a)(5)(iv) is further proposed to be revised to add “, in the provisional application,” after “a period of time within which to file.” Lastly, the last sentence of § 1.78(a)(5)(iv) is further proposed to be revised to read “If the notice is mailed in a pending nonprovisional application, a timely reply to such a notice must include the filing of a confirmation in the nonprovisional application that the translation and statement were filed in the provisional application or the nonprovisional application will be abandoned.”

Section 3.28: Section 3.28 currently directs that “[o]nly one set of documents and cover sheets to be recorded should be filed” which discourages assignees from submitting one set of documents including a patent cover sheet and the document to be recorded, and another set of documents including a trademark cover sheet and another copy of the document to be recorded. While the Office can process a set of documents that includes a patent cover sheet, trademark cover sheet, and only one copy of the document to be recorded, submitting only one copy of the document can lead to the misconception that a document submitted for recordation has been omitted, or the document submitted only belongs to the second cover sheet, particularly when the documents are submitted by facsimile and there is a break in the transmission. For example, if a submission includes: a trademark sheet on pages 1 and 2, a patent cover sheet on page 3, and a document for recording on pages 4-7, then, if pages 1 and 2 are separated from the remainder of the set of documents, it may not be clear that the trademark cover sheet is missing since the patent cover sheet and the document to be recorded would have themselves made a complete set of documents. To reduce confusion, it is proposed to revise § 3.28 to require that a separate copy of the document to be recorded be submitted with each cover sheet. Note that even if the term “copy of the document to be recorded” is not used in this discussion, the document submitted for recordation must be a copy, and not the original document, and the term “document to be recorded” has been used to emphasize that the document is to be recorded, not to suggest that an original may be submitted.

Section 3.28 is proposed to be revised to state that each document to be recorded must be accompanied by a single cover sheet (and not multiple cover sheets), to put parenthesis around “as specified in § 3.31,” and to delete the statement that at least one cover sheet must be included with each document submitted for recording. Section 3.28 is also proposed to be revised to delete the sentence that states that only one set of documents and cover sheets to be recorded should be filed, and to make it clear that if an assignment includes interests in, or transactions involving, both patents and trademarks, then two copies of each document (each document with its own cover sheet) would have to be submitted. Thus, a patent cover sheet and a copy of the document, and a trademark cover sheet and a copy of the document, would be submitted.

Section 3.31: Section 3.31(a)(7) is proposed to be amended to delete “submission” before “(e.g./Thomas O'Malley III/)” to correct an obvious error.

Section 3.73: Section 3.73(b)(1)(i) is proposed to be revised to require, for patent matters, that the document(s) submitted to establish ownership under § 3.73(b) be recorded pursuant to § 3.11 in the assignment records.

In order to take action in a patent application or a patent, a party must comply with § 3.73 to establish ownership of the rights to a patent application or a patent (i.e., a patent property) by submitting to the Office a signed statement identifying the assignee. The signed statement must be accompanied by either: (i) Documentary evidence of a chain of title from the original owner to the assignment, or (ii) a statement specifying where such documentary evidence is recorded in the Office's assignment records. Where option (i) is chosen, there is no requirement that the document(s) submitted to establish ownership also be recorded pursuant to § 3.11 in the assignment records, unless the Office explicitly requires such recordation on a case-by-case basis. Such a requirement is made only in the rare situation where a question arises as to ownership of the property. It is desirable, however, that the Office's patent assignment records should, as a rule, reflect the assignment of any assignee seeking to take action in a patent application or patent. The current system which permits an assignee to take action by submitting a copy of the assignment in a patent application or patent, but not requiring the assignment to be recorded in the Office's patent assignment records, makes a search of the Office's patent assignment records unreliable. Permitting an assignee to take action in an application or patent without also recording the assignment (in the Office's assignment records) can also serve to discourage an assignee from recording its assignment document(s), and thus lose the right to rely upon recordation pursuant to 35 U.S.C. 261 (”An assignment, grant or conveyance shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the Patent and Trademark Office within three months from its date or prior to the date of such subsequent purchase or mortgage.”)

Section 3.73(b)(1)(i) is proposed to be revised to require that the submission of the documentary evidence to establish ownership must be accompanied by a statement affirming that the documentary evidence of the chain of title from the original owner to the assignee was submitted for recordation pursuant to § 3.11. Thus, when filing a § 3.73(b) statement to establish ownership an applicant or patent owner must also submit the assignment document(s) to the Office for recordation, if such a submission has not been previously made. If the § 3.73(b) statement is not accompanied by a statement affirming that the documentary evidence was submitted for recordation pursuant to § 3.11, then the § 3.73(b) statement will not be accepted, and the assignee(s) will not have established the right to take action in the patent application or the patent for which the § 3.73(b) statement was submitted. For trademark matters, there would continue to be no requirement that the submission of the documentary evidence be accompanied by a statement affirming that the documentary evidence was submitted for recordation. Rather, paragraph (b)(1)(i) would continue to set forth that the Office may require (as deemed appropriate in any individual case) the documents submitted to establish ownership to be recorded pursuant to § 3.11 in the assignment records of the Office as a condition to permitting the assignee to take action in a matter pending before the Office.

Section 10.112: Section 10.112 is proposed to be revised to correct the cross reference, changing “10.6(c)” to “11.6(c).”

Administrative Procedure Act: The changes proposed in this notice (except for the petition fee change for a split power of attorney resulting from revocation of the power of attorney by fewer than all of the applicants or assignees of the applicants) relate solely to the procedures to be followed during the prosecution of a patent application. Specifically, the changes proposed in this notice concern: (1) Providing the proper S-signature by someone acting with limited recognition pursuant to § 11.9(a) and § 11.9(b); (2) providing for a power of attorney to a person acting with limited recognition pursuant to § 11.9(a) and § 11.9(b); (3) providing that the petition fee for a split power of attorney resulting from revocation of the power of attorney by fewer than all of the applicants or assignees of the applicants be the same as the petition fee to waive the rules to appoint a split power of attorney initially; (4) requiring that the translation of a non-English language provisional application and statement that the translation is accurate be filed in a provisional application, rather than either the nonprovisional application claiming the benefit of the provisional application or the provisional application; and (5) requiring that the evidentiary evidence of ownership be recorded under 37 CFR part 3 when an assignee takes action in a patent application. Therefore, these rule changes involve interpretive rules, or 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) (rules governing an application process are “rules of agency organization, procedure, or practice” and are exempt from the Administrative Procedure Act's notice and comment requirement); see also Merck & Co., Inc. v. Kessler, 80 F.3d 1543, 1549-50, 38 USPQ2d 1347, 1351 (Fed. Cir. 1996) (the rules of practice promulgated under the authority of former 35 U.S.C. 6(a) (now in 35 U.S.C. 2(b)(2)) are not substantive rules to which the notice and comment requirements of the Administrative Procedure Act apply), and Fressola v. Manbeck, 36 USPQ2d 1211, 1215 (D.D.C. 1995) (“it is doubtful whether any of the rules formulated to govern patent and trade-mark practice are other than ‘interpretative rules, general statements of policy, * * * procedure, or practice.”’) (quoting C.W. Ooms, The United States Patent Office and the Administrative Procedure Act, 38 Trademark Rep. 149, 153 (1948)).

Regulatory Flexibility Act: Prior notice and an opportunity for public comment were not required pursuant to 5 U.S.C. 553 (or any other law) for the procedural changes proposed in this notice. Therefore, an initial regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is not required for those changes proposed in this notice (with the sole exception of the change to the petition fee for revocation of a power of attorney by fewer than all of the applicants). See 5 U.S.C. 603.

With respect to the petition fee change, the proposed rule will increase the petition fee for revocation of a power of attorney by fewer than all of the applicants. This notice proposes to change the petition fee (from the $130.00 fee specified in § 1.17(h) to the $400.00 fee specified in § 1.17(f)) in situations where a split power of attorney results from revocation of the power of attorney by fewer than all of the applicants or assignees of the applicants. The proposed rule will bring the fees in line with the actual cost of treating such petitions (in view of the special handling required for the split power of attorney resulting from revocation of the power of attorney). This petition fee is established pursuant to the Office's authority under 35 U.S.C. 41(d) to establish fees for all processing, services, or materials relating to patents not otherwise specified in 35 U.S.C. 41 to recover the estimated average cost to the Office of such processing, services, or materials.

The Office received over 376,000 nonprovisional patent applications and over 102,000 provisional patent applications in fiscal year 2004. The Office receives fewer than five petitions for revocation of the power of attorney by fewer than all of the applicants or assignees of the applicants each year. On this basis alone, the fee change will not have an impact on a substantial number of small businesses. While the Office does not track the entity status of such petitions, the small entity patent application filing rate has not been greater than 31.0% during the last five fiscal years. Thus, this proposed change (even if all of the affected patents were by a small entity) would impact no more than two small entities in any calendar year.

Accordingly, for the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that changes proposed in this notice will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

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

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

Paperwork Reduction Act: This notice involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The collection of information involved in this notice has been reviewed and previously approved by OMB under OMB control number 0651-0012, 0651-0027, 0651-0031, 0651-0032, and 0651-0035. The United States Patent and Trademark Office is not resubmitting any information collection package to OMB for its review and approval because the changes in this notice do not affect the information collection requirements associated with the information collection under these OMB control numbers. The principal impacts of the changes proposed in this notice are: (1) Providing for the proper S-signature by someone acting with limited recognition pursuant to § 11.9(a) and § 11.9(b); (2) providing for power of attorney to a person acting with limited recognition pursuant to § 11.9(a) and § 11.9(b); (3) providing that the fee for a split power of attorney resulting from revocation of the power of attorney by fewer than all of the applicants or assignees of the applicants be the same as the fee to waive the rules to appoint a split power of attorney initially; (4) requiring that the translation of a non-English language provisional application and statement that the translation is accurate be filed in a provisional application, rather than either the nonprovisional application claiming the benefit of the provisional application or the provisional application; and (5) requiring that the evidentiary evidence of ownership be recorded under 37 CFR part 3 when an assignee takes action in a patent application.

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, Office of the Deputy Commissioner for Patent Examination Policy, P.O. Box 1450, Alexandria, VA 22313-1450, or to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office.

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.

For the reasons set forth in the preamble, 37 CFR parts 1, 3, and 10 are proposed to be amended as follows:

The Office proposes to offer a reduced fee to TEAS applicants using the Office's Trademark/Servicemark Application, Principal Register form if: (1) The application meets certain additional filing requirements; (2) the applicant responds to Office actions within two months of the mailing date; (3) the applicant files certain communications regarding the application through TEAS; and (4) the applicant agrees to accept communications concerning the application by e-mail. The application will be referred to as a TEAS Plus application. The applicant must pay an additional fee set forth in proposed § 2.6(a)(1)(iv) if, at any time during examination of the TEAS Plus application, the Office determines that: (1) The application does not meet the filing requirements of proposed § 2.22(a); (2) the applicant did not file a complete response to an Office action; (3) the applicant's response to an Office action was not filed within two months of the mailing date; (4) the applicant filed one of the communications listed in proposed § 2.23(a) on paper; or (5) the applicant refused to receive correspondence from the Office by e-mail.

References in this notice to “the Act,” “the Trademark Act,” or “the statute” refer to the Trademark Act of 1946, 15 U.S.C. 1051 et seq., as amended.

This proposed rule is in accordance with the Consolidated Appropriations Act, 2005, Public Law 108-447 (Appropriations Act), enacted on December 8, 2004. The Appropriations Act amends the Trademark Act of 1946 to require that:

[D]uring fiscal years 2005 and 2006, under such conditions as may be prescribed by the Director, the fee under § 31(a) of the Trademark Act for (1) the filing of a paper application for trademark registration shall be $375; (2) the filing of an electronic application shall be $325; and (3) the filing of an electronic application meeting certain additional requirements prescribed by the Director shall be $275.

Effective January 31, 2005, application filing fees were amended in accordance with the provisions of 15 U.S.C. 1113(a) as amended by the Appropriations Act. A notice of final rule making was published at 70 FR 2952 (January 19, 2005). The filing fee for paper applications filed under section 1 or 44 of the Trademark Act is now $375.00 per class, and the filing fee for TEAS applications filed pursuant to section 1 or 44 of the Trademark Act is now $325.00 per class.

This proposed rule sets forth additional requirements for TEAS applications to be eligible for a reduced fee of $275.00 per class. The rule only applies to TEAS applications filed on the Office's Trademark/Servicemark Application, Principal Register form. Under proposed § 2.22, to obtain a reduced filing fee an application must include the following:

(1) The applicant's name and address;

(2) The applicant's legal entity;

(3) The citizenship of an individual applicant, or the state or country of incorporation or organization of a juristic applicant;

(4) If applicant is a partnership, the names and citizenship of applicant's general partners;

(5) A name and address for correspondence;

(6) An e-mail address for correspondence and an authorization for the Office to send correspondence concerning the application to the applicant or applicant's attorney by e-mail;

(7) One or more basis or bases for filing under sections 1 and/or 44 of the Act that satisfy all the requirements of § 2.34;

(8) Correctly classified goods and/or services, with an identification of goods and/or services from the Office's Acceptable Identification of Goods and Services Manual (Goods and Services Manual). In an application based on section 44 of the Act, the scope of goods and/or services covered by the section 44 basis may not exceed the scope of goods and/or services in the foreign application or registration;

(9) If the application contains goods and/or services in more than one class, compliance with § 2.86;

(10) A filing fee for each class of goods and/or services as required by § 2.6(a)(iii);

(11) A verified statement that meets the requirements of § 2.33, dated and signed by a person properly authorized to sign on behalf of the applicant pursuant to § 2.33(a);

(12) A drawing of the mark that meets the requirements of §§ 2.51 and 2.52;

(13) If the mark is in standard characters, a mark comprised of only characters in the USPTO standard character set available at: http://www.uspto.gov/teas/standardCharacterSet.html;

(14) If the mark is not in standard characters, a description of the mark;

(15) If the mark includes non-English wording, an English translation of that wording;

(16) If the mark includes non-Latin characters, a transliteration of those characters;

(17) If the mark includes an individual's name or portrait, either (1) a statement that identifies the living individual whose name and likeness the mark comprises and written consent of the individual, or (2) a statement that the name or portrait does not identify a living individual (see section 2(c) of the Act);

(18) If the applicant owns one or more registrations for the same mark, a claim of ownership of the registration(s) identified by the U.S. registration number(s), pursuant to § 2.36; and

(19) If the application is a concurrent use application, compliance with § 2.42.

In addition to the TEAS Plus filing requirements in proposed § 2.22, an applicant filing a TEAS Plus application must comply with the examination requirements set forth in proposed § 2.23: (1) File response(s) to Office action(s), request(s) to change the correspondence address, appointment, revocation or withdrawal of power of attorney, appointment or revocation of domestic representative, and preliminary amendment(s) through TEAS; (2) respond completely to Office actions within two months of the mailing date (except that a notice of appeal from a final action under section 20 of the Act may be filed within six months of the mailing date of the Office action); (3) agree to receive communications from the Office by e-mail; and (4) for applications with a section 1(b) basis, file any amendment to allege use, statement of use, request for extension of time to file a statement of use, or request to delete the section 1(b) basis through TEAS.

The Office proposes to add § 2.22, and to amend §§ 2.6, 2.23, 2.53, 2.62 and 7.25.

The Office proposes to revise § 2.6(a)(1) to more clearly enumerate the application filing fee options and to add new subsections (iii) and (iv). Proposed § 2.6(a)(1)(iii) adds a new fee for filing a TEAS Plus application under proposed § 2.22.

Proposed § 2.6(a)(1)(iv) adds a new fee in the amount of $50.00 per class for processing a TEAS Plus application filed under proposed § 2.22 that does not meet the requirements of proposed §§ 2.22 and 2.23. The additional fee is the difference between the filing fee for a TEAS application and the reduced fee for a TEAS Plus application.

The Office proposes to add a new § 2.22. Proposed § 2.22(a) sets forth the requirements for filing a TEAS Plus application. To file a TEAS Plus application, an applicant must use the electronic Trademark/Servicemark Application, Principal Register form, accessed from http://teas.uspto.gov, and choose the reduced fee option presented as the TEAS Plus form on the initial screen.

For most of the filing requirements in proposed § 2.22(a), an applicant must enter the information in the appropriate data fields on the TEAS Plus form. To enter the identification of goods and/or services, an applicant will be instructed to enter search terms appropriate for the desired goods and/or services within the identified field on the TEAS Plus form. The system will then retrieve relevant entries from the Goods and Services Manual, and the applicant must select one or more of the entries to add to the TEAS Plus form. The Goods and Services Manual currently available on the Office's Web site at: http://www.uspto.gov, contains more than 20,000 listings of acceptable identifications of goods and services.

Proposed § 2.22(b) provides that if a TEAS Plus application does not meet the filing requirements of paragraph (a), the applicant must pay the fee required by proposed § 2.6(a)(1)(iv). The application will retain its original filing date if the initial application met the minimum application filing requirements of § 2.21. Proposed § 2.22(b) applies where an application is initially designated as a TEAS Plus application, but upon examination, the Office determines that the application did not meet the TEAS Plus filing requirements.

Proposed § 2.22(c) lists the types of TEAS applications that are not eligible for the reduced fee option under paragraph (a). Applications for certification marks, collective marks, collective membership marks and applications for registration on the Supplemental Register cannot be filed as TEAS Plus applications because the Office does not have TEAS Plus forms for these types of applications.

The Office proposes to revise current § 2.23. This section discusses the Office practice of assigning a serial number to applications and informing the applicant of the serial number and filing date. The Office will continue this practice but will delete this administrative information from the rules of practice. Such administrative practices are generally set forth in the Office's Trademark Manual of Examining Procedure.

The Office proposes to add new subsections §§ 2.23(a) and 2.23(b). Proposed § 2.23(a) sets forth additional examination requirements for a TEAS Plus application. Proposed § 2.23(b) requires payment of the additional fee set forth in proposed § 2.6(a)(1)(iv), if a TEAS Plus applicant fails to meet any of the requirements in proposed § 2.23(a) during the pendency of the application.

The Office proposes to redesignate § 2.53(a) as § 2.53(a)(2), and to amend the rule to state that the requirement applies to standard character drawings filed with all TEAS submissions except TEAS Plus applications. The Office proposes to add new paragraph § 2.53(a)(1) to set forth the requirements for standard character drawings filed with TEAS Plus applications. Proposed § 2.53(a)(1) provides that a mark in standard characters in a TEAS Plus application must be entered in the appropriate field on the TEAS Plus form. A TEAS Plus applicant will not have the option of attaching a digitized image of a mark in standard characters. The applicant must enter a mark comprised of only standard characters from the Office's standard character set, currently available at: http://www.uspto.gov/teas/standardCharacterSet.html, and the Office will generate a digitized image of the mark in .jpg format and attach the image to the TEAS Plus form.

The Office proposes to amend § 2.62 by rewording the current language to simplify the rule and by redesignating it as § 2.62(a). The Office also proposes to add § 2.62(b), stating that to maintain a TEAS Plus application, an applicant's response must: (1) address all issues raised in the Office action; and (2) be filed within two months of the mailing date of the Office action. If the applicant does not file a complete response to an Office action within two months of the mailing date, the application will lose its TEAS Plus status and the applicant must pay the additional fee required by proposed § 2.6(a)(1)(iv). This is consistent with proposed § 2.23, discussed above. The applicant must respond to the Office action within six months of the mailing date to avoid abandonment. 37 CFR 2.65.

When issuing an Office action in a TEAS Plus application, the examining attorney will require that the applicant respond to all issues within two months of the mailing date through TEAS or respond within six months and include the additional $50.00 per class fee with the response.

The Office proposes to amend § 7.25(a) to add proposed §§ 2.22 and 2.23 to the list of rules in part 2 of this chapter that do not apply to requests for extension of protection of international registrations to the United States. A request for extension of protection to the United States is not eligible for examination as a TEAS Plus application because it cannot be filed directly through TEAS.

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

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

Regulatory Flexibility Act: The Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule changes will not have a significant impact on a substantial number of small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)).

The current filing fees for trademark applications are $375.00 per class for applications filed on paper and $325.00 per class for trademark applications filed electronically through the Trademark Electronic Application System (TEAS). The sole purpose of the proposed rules is to provide applicants that electronically file trademark applications through TEAS with the added option of filing the application for a reduced fee of $275.00 per class. Applications filed under the reduced fee option will be referred to as TEAS Plus applications.

In fiscal year 2004, the agency received approximately 245,000 trademark applications. Of that total, the Office estimates that 179,000 trademark applications were filed through TEAS and that 66,000 of the TEAS filers were small entities. The Office projects that it will receive approximately 264,000 trademark applications in fiscal year 2005, that an estimated 211,000 will be filed through TEAS, and that approximately 42,000 TEAS filers will take advantage of the reduced fee option. The Office estimates that of the projected 42,000 TEAS Plus applications filed during fiscal year 2005, approximately 15,500 will be filed by small entities.

Because the proposed rule merely provides all trademark applicants, including small businesses, with additional benefits at a reduced cost, the agency certifies that any economic impact on small entities affected by the proposed rule will not be significant.

Paperwork Reduction Act: The proposed rules are in conformity with the requirements of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.).

Notwithstanding any other provision of law, no person is required 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 PRA unless that collection of information displays a currently valid OMB control number.

This proposed rule involves collections of information requirements subject to the PRA. The collections of information involved in this rule have been reviewed and previously approved by OMB under the following control numbers: 0651-0009 and 0651-0050. This rule includes provisions that affect the fee structures for approved information collection activities under 0651-0009 Trademark Processing. Changes to the fee structures, as set forth in this rule, will be submitted to the Office of Management and Budget for review and approval at the time of renewal of 0651-0009.

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.

Send comments regarding any other aspect of this data collection, including suggestions for reducing the burden, to the Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451 (Attn: Ari Leifman), and to the Office of Information and Regulatory Affairs, OMB, 725 17th Street, NW., Washington, DC 20230 (Attn: PTO Desk Officer).

For the reasons given in the preamble and under the authority contained in 35 U.S.C. 2 and 15 U.S.C. 1123, as amended, the Office proposes to amend part 2 and part 7 of title 37 as follows:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

We are proposing to approve portions of revisions to the SIP submitted by the State of Texas in letters dated January 23, 2003, November 7, 2003, March 26, 2004, and December 17, 2004. We are approving the portions of these revisions that pertain to the control of HRVOCs. These rules, which are codified at 30 TAC Chapter 115, Subchapter H, apply to facilities in the Houston/Galveston ozone nonattainment area. We are also proposing to approve the associated revisions to the definitions section of 30 Texas Administrative Code (TAC) 115.10. We are not proposing any action, at this time, regarding the other revisions that were submitted in these letters. We are approving these additional rules pursuant to sections 110, 116 and part D of the Federal Clean Air Act (the Act).

The rules establish improved monitoring requirements for flares, cooling towers, process vents and pressure relief valves. For sources in Harris county, the source monitoring provides the information necessary for sources to demonstrate compliance with annual and short term caps on emissions of HRVOCs from cooling tower, process vents, pressure relief devices and flares. The annual cap for each facility will be established based on processes outlined in 30 TAC chapter 101. The short term cap is 1200 lbs/hr.

Because of the difficulty in their quantification, fugitive emissions are not included in the long and short term cap. Instead, the current work practice rules have been made more comprehensive and more stringent to achieve additional reduction in HRVOCs.

The addition of these rules for the control of HRVOCs will supplement Texas' existing rules controlling volatile organic compounds (VOC) and provide improvements to the Texas SIP's VOC Reasonably Available Control Technology (RACT) rules. These additional controls of HRVOC emissions will help to attain and maintain the national ambient air quality standards (NAAQS) for ozone in HGA. Today's proposal, when finally approved, will make the revised regulations Federally enforceable.

First, Volatile Organic Compounds are a class of compounds that react in the atmosphere with oxides of nitrogen and oxygen in the presence of sunlight to form ozone. HRVOC is a term used to refer to chemicals that because of their very high propensity to form ozone have been targeted for additional control beyond the level of control that has been established for controlling VOCs in general. These HRVOCs have been found to contribute a disproportionate amount to the formation of ozone in the HGA. Further, ambient measurements from both airplanes and ground based monitors have shown that current emissions estimates for HRVOCs are substantially underestimated. Therefore, there is a need to improve the emissions estimates of HRVOCs through better source monitoring.

HRVOCs have been defined in chapter 115.10 as:

In Harris County, one or more of the following volatile organic compounds (VOCs): 1,3-butadiene; all isomers of butene (e.g., isobutene (2-methylpropene or isobutylene), alpha-butylene (ethylethylene), and beta-butylene (dimethylethylene, including both cis- and trans-isomers)); ethylene; and propylene.

In Brazoria, Chambers, Fort Bend, Galveston, Liberty, Montgomery and Waller Counties, one or more of the following VOCs: ethylene and propylene.

TCEQ has targeted the following emission sources with these rules: Flares, process vents, cooling tower heat exchange systems and fugitive emissions. These sources are believed to generate the greatest amount of HRVOC emissions. Also, flares, cooling towers and fugitive emissions are believed to suffer the greatest error in reported emissions. The improved source monitoring requirements included in the rules will greatly enhance the accuracy of the source emissions estimates.

Flares are used in a wide variety of applications both for the control of continuous vent emissions and for the control of intermittent emissions during start up, shutdowns and malfunctions. The ability of flares to safely handle a wide range of flow rates and chemicals makes them a popular choice for vent gas disposal. Because flares are not enclosed combustion devices, it is extremely difficult to measure the exhaust emissions from flares. EPA has established requirements for the proper operation of flares for its New Source Performance Standards at 40 Code of Federal Regulations (CFR) 60.18. Texas has adopted, by reference, these performance requirements for flares in HRVOC service. The requirements establish limits for the minimum heating value for the inlet gas to a flare and for maximum gas velocity at the flare tip.

In addition, the Texas rules establish flow and composition monitoring requirements for flares that facilities will use to show compliance with the flare operation requirements of 40 CFR 60.18. Also, using the flow data and an assumed destruction efficiency for a properly operated flare, a company can estimate the HRVOC emission rate to be used for determining compliance with the short and long term caps. Flares in compliance with 40 CFR 60.18 are allowed to assume a 98% destruction efficiency for most VOCs and a 99% destruction efficiency for ethylene and propylene. Flares not operated in compliance with 40 CFR 60.18 are required to assume a destruction efficiency of 93%. Texas has based these assumed destruction efficiencies on EPA studies of flare destruction efficiencies.

For flares that are used as a continuous control device, the monitoring requirements call for continuous flow and hydrocarbon monitoring of the streams being sent to the flare. For flares that are used more intermittently such as flares for control of loading operations, emergency flares or flares used only for control during start up/shutdown and maintenance, the Texas rules allow various alternative practices that are described in the rule. We have reviewed the monitoring requirements for flares and believe they will be adequate to establish compliance with the requirements of 40 CFR 60.18, the annual cap and the short term cap. For a more complete description of the requirements, see the technical support document for this action available in the RME.

Facilities are required to continuously monitor the flow and concentration of VOCs to cooling towers. The samples must be collected before the water comes in contact with the atmosphere and must be taken in a location that insures the rate all of the HRVOCs going into the cooling tower is measured. Streams containing only non-highly reactive VOCs are not required to be sampled. If the concentration in the stream exceeds 50ppb total VOCs, the company is required to collect an additional sample to determine speciated and total HRVOC. These additional samples must be taken each day until the concentration of strippable VOC is reduced below 50 ppb. Cooling towers with capacities less than 8000 gallons/minute are required to monitor flow continuously, but only have to take samples at least twice per week with an interval of at least 48 hours between samples.

EPA has reviewed the monitoring requirements for cooling tower heat exchange systems and believes them sufficient to demonstrate compliance with the annual and short term cap. For a more complete description of the cooling tower requirements, see the technical support document for this action available in the RME.

For process vents, facilities are required to establish a maximum potential emission rate using a performance test. During the performance test, a process parameter or parameters is to be identified that is affected by the emission rate from the process vent. The performance test must establish an operational limit for the process parameter(s). For every hour the process parameter(s) remains within it its operational limit, a facility would report the maximum potential emission rate for determining compliance with the annual and short term cap. Instead of assuming the maximum potential emission rate, sources have the option of installing continuous emission monitors and flow monitors to directly determine emissions. During time periods when the process parameter is outside the operational limit, companies must use engineering estimates and process information to determine emissions for compliance with the annual and short term caps. Texas has made clear that time periods outside the operational limits are violations of the rule. We have reviewed the monitoring requirements for vents and believe that they will provide sufficient information to determine compliance with the annual and short term caps. For a more complete description of the process vent requirements, see the technical support document for this action available in the RME.

As mentioned previously, these rules establish a limit of 1200 lbs/hr of HRVOCs in Harris County. This limit has been established because recent modeling information indicates that releases of this magnitude in the right place at the right time can impact peak ozone levels 1-2 parts per billion.

TCEQ, for a number of years, has implemented a leak detection and repair program as part of its program to control volatile organic compounds. When TCEQ determined that additional reductions of HRVOCs were needed, they established a number of new requirements for their leak detection and repair. These include among other things:

• Inclusion of connectors in the program.

• Inclusion of other non-traditional potential leak sources such as heat exchanger heads and man way covers.

• Elimination of allowances for skipping leak detection periods for valves.

• Requirement for third party audits to help insure that effective leak survey and repairs are conducted.

• Requirement that “extra-ordinary” efforts be used to repair valves before putting them on the delay of repair list.

EPA has reviewed the additional requirements for control of HRVOC fugitive emissions and determined these measures will result in additional emission reductions of HRVOCs.

Final Action: EPA is proposing to approve for inclusion in the federally enforceable State Implementation Plan the rules contained in 30 TAC Chapter 115, Subchapter H for the control of HRVOCs, first submitted in a letter dated January 23, 2003 and revised in letters dated November 7, 2003, March 26, 2004 and December 17, 2004. We are also approving revisions to the definition section in the State Rules 30 TAC 115.10 as the definitions are necessary for the implementation of the rules. We are proposing to approve these rules because they strengthen the State Implementation Plan by improving monitoring requirements and reducing emissions of HRVOCs in the Houston area. EPA is proposing to approve these revisions to the HGA SIP under part D of the Act because they supplement and improve the existing SIP-approved VOC rules and they are consistent with the RACT requirements and guidance for ozone nonattainment areas. Reductions achieved by these rules will contribute to attainment of the ozone standard.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposes to approve 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 proposed 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 proposes to approve 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 proposed 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 proposed 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.).