On April 2, 2008, we published in the Federal Register (73 FR 17930-17935, Docket No. APHIS-2006-0189) a proposal 1 to relieve certain restrictions regarding the movement of Hass variety avocados. Specifically, we proposed to amend our domestic quarantine regulations to provide for the interstate movement of Hass avocados from Mexican fruit fly and sapote fruit fly quarantined areas in the United States with a certificate if the fruit is safeguarded after harvest in accordance with specific measures. We also proposed to amend our foreign quarantine regulations to remove trapping and bait spray treatment requirements related to Anastrepha spp. fruit flies for imported Hass avocados from Michoacan, Mexico.

Comments on the proposed rule were required to be received on or before June 2, 2008. We are reopening the comment period on Docket No. APHIS-2006-0189 for an additional 2 weeks. We will also consider all comments received between June 3, 2008, and the date of this notice. This action will allow interested persons additional time to prepare and submit comments.

The MMS has conducted a thorough review of the Eleventh Edition of the American Petroleum Institute's Specification for Subsurface Safety Valve Equipment, 14A (API Spec 14A) and has determined that the new edition should be incorporated into the regulations to ensure the use of the best available and safest technologies for downhole safety valves. We also propose adding a new section (30 CFR 250.807) to the regulations that identify additional safety valve information requirements for high pressure high temperature (HPHT) environments.

The Eleventh Edition contains significant technological and design changes that will increase the safety of downhole operations in the Outer Continental Shelf (OCS). The updated API Spec 14A is an improvement over the current API Spec 14A, Tenth Edition incorporated in the regulations for the following reasons:

• Strengthens the guidelines for preparation of a functional specification by the user/purchaser to submit to the manufacturer/supplier when ordering equipment addressed by this standard. Functional characteristics in the specification must include, but are not limited to, well parameters, operational parameters, environmental compatibility, and compatibility with related well equipment.

• Adds new design verification and validation guidelines.

• Clarifies procedures in areas such as design methodology and verification.

• Introduces state-of-the-art technological advances to improve downhole performance.

When Hurricanes Katrina and Rita caused catastrophic damage to equipment in the Gulf of Mexico, most of the subsurface safety valves (SSSV) performed exactly according to design; however, there were recorded minor incidents. Incorporating the revised API Spec 14A should lead to improved performance of downhole safety valves.

While the API Spec 14A Eleventh Edition contains many improvements that we support, MMS does not fully agree with the revision that allows a reduced safety factor for the higher pressure valve body test. This reduced safety factor for the design of downhole safety valves installed in wells drilled in HPHT environments is a concern that MMS cannot overlook. Therefore, MMS proposes through this rulemaking that lessees and operators provide supporting design verification information for SSSVs planned for use in HPHT environments. This supporting information must show that the design of the SSSV to be installed in an HPHT environment provides the same level of safety and environmental protection that was previously provided by the design standards contained in API Spec 14A Tenth Edition.

The design qualification testing requirements in the API Spec 14A, Tenth Edition requires that a SSSV be pressure tested to 150 percent of the rated working pressure of the valve (e.g., a 10,000 psig SSSV would be tested to 15,000 psig of the rated working pressure regardless of the magnitude of the rated working pressure). The API Spec 14A, Eleventh Edition pressure testing methodology results in a decreasing test pressure factor from 150 percent at 10,000 psig, to 133 percent at 15,000 psig, to 125 percent at 20,000 psig rated working pressure. Wells and related equipment with a rated working pressure of 15,000 psig or greater are subjected to a hydrostatic test pressure of 5,000 psig greater than the rated working pressure. As a well becomes more critical, the margin of safety decreases as a result of the decreasing test pressure factor. Therefore, this proposed rule would address this safety issue by requiring the lessee or operator to provide additional information when SSSVs and related equipment are planned to be installed in a HPHT environment. These additional informational requirements are found in new 30 CFR 250.807 titled “Additional requirements for subsurface safety valves installed in high pressure high temperature environments.” Wells and related equipment with a rated working pressure less than or equal to 15,000 psig would not be affected by the new requirements in 30 CFR 250.807.

The new 30 CFR 250.807 provisions would require the lessee or operator to provide additional information when SSSVs and related equipment are intended to be installed in a HPHT environment. The lessee or operator would be required to include such information in an Application for Permit to Drill (APD), Application for Permit to Modify (APM), or Deepwater Operations Plans (DWOP) and must demonstrate that the SSSV and related equipment are fit-for-purpose for performing in HPHT environments. For the purpose of this rulemaking, HPHT is considered a pressure rating greater than 15,000 psig, or a temperature rating equal to or greater than 350 degrees Fahrenheit under one of the following well conditions:

1. A maximum anticipated surface pressure greater than 15,000 psig on the seafloor for a well with a subsea wellhead or at the surface for a well with a surface wellhead.

2. A shut-in tubing pressure greater than 15,000 psig on the seafloor for a well with a subsea wellhead or at the surface for a well with a surface wellhead, or

3. A flowing temperature equal to or greater than 350 degrees Fahrenheit on the seafloor for a well with a subsea wellhead or the surface for a well with a surface wellhead.

Related equipment refers to wellheads, tubing heads, tubulars, packers, SSSVs, threaded connections, seals, seal assemblies, production trees, equipment associated with coiled tubing, snubbing, operations, chokes, well control equipment and any other equipment that will be exposed to the reservoir pressure and/or temperature with rated working pressures greater than 15,000 psig, or temperatures greater than 350 degrees Fahrenheit.

This proposed rule is not a significant rule as determined by the Office of Management and Budget (OMB) and is not subject to review under E.O. 12866.

(1) The proposed rule (incorporation of the new API Spec 14A and the new 30 CFR 250.807) would not have an annual effect of $100 million or more on the economy. It would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The primary purpose for this proposed rule is to establish minimum acceptable requirements for SSSVs. The requirements apply to SSSVs as well as all components that establish tolerance and/or clearances which may affect performance or interchangeability of SSSVs. This rule also would set minimum requirements for SSSVs and related equipment to conform to international standards and would require compliance by supplier/manufacturers. Finally, this rule would establish minimum fit-for-purpose criteria for HPHT equipment operating over 15,000 psig or 350 degrees Fahrenheit; and, would require lessees and operators to provide information that demonstrates to the MMS that their SSSVs are properly designed to operate in HPHT environments.

The oil and gas industry took the lead in revising API Spec 14A, Eleventh Edition. The industry and API have encouraged the promulgation of the proposed rule incorporating API Spec 14A. The API Spec 14A standard is now accepted as an industry standard both domestically and internationally; and, consequently, the impact of this proposed rule on the oil and gas industry is expected to be negligible.

The impact of the new requirements of 30 CFR 250.807 will also be negligible. A review of drilling activity indicates that, if the current trend continues, there may not be any HPHT wells that exceed 15,000 psig at the wellhead drilled and completed in the next 3 years. However, there is activity in the Mobile Bay region and in the western Gulf of Mexico where the working environment for SSSVs and related equipment may reach over 350 degrees Fahrenheit, flowing tubing temperature. The MMS estimates that approximately 10 to 20 APD's or APM's may be submitted by lessees or operators over the next 3 years which could be subject to the proposed rule. These submittals would be required to provide additional information on SSSVs and related equipment for wells to be drilled and completed that may be classified as HPHT completions.

The proposed provisions of 30 CFR 250.807 would require lessees and operators to provide supporting design verification information. The information that the proposed rule would require is engineering data and analytical analysis for HPHT equipment. This is the kind of information that a prudent operator should have available for operating in HPHT environments. The MMS estimates the cost to comply with this proposed rule would be $4,000 per well. Companies will be required to gather and present well data that should be readily available if requested by MMS for review. We estimate that the hourly burden to produce this data would be approximately 40 hours for each well at an hourly rate of $100 per hour and would cost $4,000 per well. (40 hours at $100 per hour × 1 well = $4,000).

The estimated cost to industry over the next 3 years, based on the high estimate of 20 APD's or APM's per year, would be approximately $80,000 ($4,000 per well × 20 wells = $80,000). As a result, additional costs associated with implementing these new requirements would be negligible given the overall costs of off-shore oil and gas production. Additional costs could be incurred if a lessee engages an independent consultant to prepare the fitness-for-purpose report for HPHT application with readily available information. However, these costs are very small when compared to the cost of drilling a well in an HPHT environment, which can cost over $150 million.

(2) The proposed rule (incorporation of the new API Spec 14A and the new 30 CFR 250.807) would not create a serious inconsistency or otherwise interfere with action taken or planned by another agency.

(3) This proposed rule (incorporation of the new API Spec 14A and the new 30 CFR 250.807) does not alter the budgetary effects of entitlements, grants, user fees or loan programs, or the rights or obligations of their recipients.

(4) This proposed rule (incorporation of the new API Spec 14A and the new 30 CFR 250.807) does not raise novel legal or policy issues. The proposed rule simply seeks to improve MMS safety regulations by maintaining them current with improved oil and gas industry standards and requires lessees and operators to meet additional criteria for safety reasons to demonstrate fitness-for-purpose for HPHT applications.

The Department of the Interior (DOI) certifies that this proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The new API Spec 14A would affect lessees and operators of oil and gas leases on the OCS. This may include approximately 130 active Federal oil and gas lessees. Lessees that conduct business under this rule are coded under the Small Business Administration's (SBA) North American Industry Classification System (NAICS) with the following: 1. No. 211111 (Crude Petroleum and Natural Gas Extraction); and, 2. No. 213111 (Drilling Oil and Gas Wells). For these NAICS code classifications, a small company is defined as one with fewer than 500 employees. Based on these criteria, an estimated 70 percent of these companies (91) are considered small. Therefore, this proposed rule would affect a substantial number of small entities.

However, with respect to the new 30 CFR 250.807, the MMS has determined that it is unlikely that a substantial number of small companies are currently involved with HPHT wells on the OCS due to the expense and the advanced technical expertise needed for drilling, completing, and producing HPHT wells. While it is possible that the operations of small companies may involve HPHT wells on the OCS, the MMS believes that any company, regardless of size, attempting to complete a HPHT well must do the engineering evaluations proposed in this rulemaking to insure the safe operation of such activities and to avoid a catastrophic failure that could result in loss of life or serious environmental damage.

The costs of the additional requirements for HPHT wells would not have a significant economic effect on a substantial number of small companies because very few, if any, would be involved in the activities that would require compliance with these additional requirements. As mentioned previously, the costs of complying with these proposed requirements are very small when compared to the cost of drilling a HPHT well, which can cost over $150 million. The proposed rule incorporating the new API Spec 14A would not have a significant economic effect on a substantial number of small companies because the revised API Spec 14A will not impose significant costs or burdens on any lessees or operators.

Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small business about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of the MMS, call toll-free 1-888-734-3247. You may submit comments to the Small Business Administration without concern for retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the DOI.

The proposed rule (incorporation of the new API Spec 14A and the new 30 CFR 250.807) is not a major rule under 5 U.S.C. 804(2) of the Small Business Regulatory Enforcement Act. This proposed rule:

a. Would not have an annual effect on the economy of $100 million or more. The proposed rule would not impose any significant costs to lessees or operators. The costs associated with the proposed rule would involve the cost of the new document (API Spec 14A), and any cost associated with gathering and presenting the well data to MMS. As mentioned previously, the costs of complying with these proposed requirements are very small when compared to the cost of drilling a HPHT well, which can cost over $150 million.

b. Would not impose significant increases in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Under the criteria in E.O. 12630, this proposed rule does not have takings implications. The proposed rule is not a governmental action capable of interference with constitutionally protected property rights. A takings implication assessment is not required.

Under the criteria in E.O. 13132, this proposed rule does not have federalism implications to warrant the preparation of a Federalism Assessment. This proposed rule would not affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this proposed rule would not affect that role. A Federalism Assessment is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Under the criteria in E.O. 13175, we have evaluated this proposed rule and determined that it has no potential effects on federally recognized Indian tribes. There are no Indian or tribal lands on the OCS.

The proposed revisions to 30 CFR 250, subpart H regulations (30 CFR 250.807) will specify that lessees and operators must submit a brief description in their APD, APM, or DWOP when SSSVs and related equipment are intended to perform in HPHT environments. The information that would be required by the proposed rule should be readily available since a prudent operator would already possess this information for daily operations. Lessees and operators must then provide this existing information as part of their APM, APD, or DWOP submissions. The MMS has determined that the number of hours for paperwork burdens currently approved for preparation of APD's (3,135 annual burden hours) and APM's (9,900 annual burden hours) pursuant to the requirements set forth in 30 CFR 250, subpart D (1010-0141) and for DWOP's (51,000 annual burden hours) in 30 CFR 250, subpart B (1010-0151), are more than enough to accommodate this minor addition to existing submissions. Therefore, due to the fact that the burden hours are effectively included under currently approved OMB information collections, the proposed rule does not require a submission to OMB for review and approval under section 3507(d) of the PRA.

The PRA provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information and assigns a control number, you are not required to respond. The OMB approved the referenced information collection requirements for 30 CFR 250, subparts B, D, and H under OMB Control Numbers 1010-0151 (321,817 hours; expiration 7/31/08), 1010-0141 (163,954 hours; expiration 8/31/08) and 1010-0059 (17,598 hours; expiration 2/28/09).

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. The MMS has analyzed this proposed rule under the criteria of the National Environmental Policy Act and 516 Departmental Manual 15. This proposed rule meets the criteria set forth in 516 Departmental Manual 2 (Appendix 1.10) for a Departmental “Categorical Exclusion” in that this proposed rule is “* * * of an administrative, financial, legal, technical, or procedural nature and whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis * * *.” This proposed rule also meets the criteria set forth in 516 Departmental Manual 15.4(C)(1) for a MMS “Categorical Exclusion” in that its impacts are limited to administration, economic or technological effects. Further, the MMS has analyzed this proposed rule to determine if it meets any of the extraordinary circumstances that would require an environmental assessment or an environmental impact statement as set forth in 516 Departmental Manual 2.3, and Appendix 2. The MMS concluded that this rule does not meet any of the criteria for extraordinary circumstances as set forth in 516 Departmental Manual 2 (Appendix 2).

In developing this proposed rule we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554).

This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

We are required by E.O. 12866, E.O. 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you believe that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section above. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made available to the public. While you request in your comment that your personal identifying information be withheld from public review, we cannot guarantee that we will be able to do so.

For the reasons stated in the preamble, the MMS proposes to amend 30 CFR part 250 as follows:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0470), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name, mailing address, and an e-mail address or other contact information in the body of your document to ensure that you can be identified as the submitter. This also allows us to contact you in the event further information is needed or if there are questions. For example, if we cannot read your submission due to technical difficulties and you cannot be contacted; your submission may not be considered. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov at any time. Enter the docket number for this rulemaking (USCG-2008-0470) in the Search box, and click “Go>>.” You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

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

The electrodes on the demonstration electrical dispersal barrier I located between mile markers 296.1 and 296.7 of the Chicago Sanitary and Ship Canal are beginning to fail. This barrier was constructed to prevent Asian Carp from entering Lake Michigan through the Illinois River system by generating a low-voltage electric field across the canal. The Army Corps of Engineers intends to shut down barrier I and begin the process of replacing the barrier electrodes which run across the bottom of the canal. Divers will be in the water and a barge-mounted crane will be operating during maintenance operations to barrier I. Electrical dispersal barrier IIA located on the Chicago Sanitary and Ship Canal 270 feet south of mile marker 296.1 to mile marker 296.7 will be in operation while repairs are being made to demonstration electrical dispersal barrier I. Barrier IIA will operate continuously for a two week period before taking barrier I off line for electrode replacement. Electrical dispersal barrier IIA generates a more powerful electric field than barrier I over a larger area within the Chicago Sanitary and Ship Canal.

The Coast Guard and U.S. Army Corps of Engineers conducted field tests to ensure the continued safe navigation of commercial and recreational traffic across the barrier; however, results indicated an arcing risk and hazardous electrical discharges as vessels transited the barrier posing a serious risk to navigation through the barrier. To mitigate these risks, navigational and operational restrictions will be placed on all vessels transiting through the vicinity. Until the potential electrical hazards can be rectified, the Coast Guard will require vessels transiting the regulated navigation area to adhere to specified operational and navigational requirements.

This proposed rule will suspend 33 CFR 165.923 and place additional restrictions on all vessels transiting through electrical dispersal barrier IIA located on the Chicago Sanitary and Ship Canal from June 30, 2008 until August 15, 2008. The regulated navigation area encompasses all waters of the Chicago Sanitary and Ship Canal 270 feet south of the Romeo Road Bridge Mile Marker 296.1 to the south side of the Aerial Pipeline Mile Marker 296.7. The requirements placed on all vessels include: All up-bound and down-bound barge tows that contain one or more red flag barges transiting through the restricted navigation area must be assisted by a bow boat at least one mile above the restricted navigation area to at least one mile below the restricted navigation area. Red flag barges are barges containing hazardous materials as identified by commodity codes:

The U.S. Army Corps of Engineers will contract bow boat assistance for barge tows containing one or more red flag barges. Information on how to contact the contractor for bow boat assistance will be provided to the public in a Broadcast Notice to Mariners. Towing assistance will be provided from at least one mile above the restricted navigation area to at least one mile below the restricted navigation area.

This proposed rule prohibits all vessels from loitering in the regulated navigation area; vessels may enter the regulated navigation area for the sole purpose of transiting to the other side and must maintain headway throughout the transit. The rule also requires all personnel on open decks to wear a Coast Guard approved Type I personal flotation device while in the regulated navigation area. In addition, vessels may not moor or lay up on the right or left descending banks in the regulated navigation area; towboats may not make or break tows in the regulated navigation area; vessels may not pass (meet or overtake) in the regulated navigation area. All vessels must make a SECURITE call when approaching the barrier to announce intentions and work out passing arrangements on either side. Finally, commercial tows transiting the regulated navigation area must be made up with wire rope to ensure electrical connectivity between all segments of the tow.

These restrictions are necessary for safe navigation of the regulated navigation area and to ensure the safety of vessels and their personnel as well as the public's safety due to the electrical discharges noted during safety tests conducted by the U.S. Army Corps of Engineers. Deviation from this proposed rule is prohibited unless specifically authorized by the Commander, Ninth Coast Guard District or his designated representative. The Commander, Ninth Coast Guard District will designate Captain of the Port, Lake Michigan as his designated representative for the purposes of this proposed rule.

A temporary safety zone will be in place while repairs are being made to barrier I. This temporary safety zone is necessary to ensure the safety of workers and vessels during maintenance operations to barrier I on the Chicago and Sanitary Ship Canal.

The maintenance on barrier I will occur between 7 a.m., July 14, 2008 and 5 p.m., August 9, 2008. The safety zone will be enforced from 7 a.m. to 12 p.m. and 1 p.m. to 5 p.m. on July 14, 2008 through August 9, 2008. The safety zone will encompass all waters of the Chicago Sanitary Ship Canal from mile marker 296.1 to mile marker 296.7.

The Captain of the Port will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public. Such means of notification will include, but is not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port will issue a broadcast Notice to Mariners notifying the public when enforcement of the safety zone is terminated.

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.

This determination is based on the fact that traffic will still be able to transit through the regulated navigation area and the minimal time that vessels will be restricted from the safety zone. The safety zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.

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

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

This proposed rule would affect the following entities, some of which might be small: The owners and operators of vessels intending to transit or anchor in a portion of the Chicago Sanitary Ship Canal from June 30, 2008 to August 15, 2008.

This regulated navigation area and safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Vessel traffic will be able to transit through the regulated navigation area. The U.S. Army Corps of Engineers will contract bow boat assistance for barge tows containing one or more Red Flag barges. Vessel traffic will only be limited for one five hour period and one four hour period each day the safety zone is in effect. In the event this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Lake Michigan to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.

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 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they could 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 CDR Tim Cummins, Deputy Prevention Division, Ninth Coast Guard District, 1240 East Ninth Street, Cleveland, OH 44199; 216-902-6049. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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 rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these regulations and fishing rights protections need not be incompatible. We have also determined that this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this proposed rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT.

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedure; and related management system practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0264), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov at any time. Enter the docket number for this rulemaking (USCG-2008-0264) in the Search box, and click “Go >>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or the Prevention Department at Coast Guard Sector Long Island Sound, 120 Woodward Ave, New Haven, CT 06512 between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

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

OPA Racing LLC of Brick, NJ is sponsoring a power boat race in Patchogue Bay, Patchogue, NY on the 22nd, 23rd and 24th of August, 2008. A safety zone is necessary to protect the maritime community from the hazards associated with a power boat race. The safety zone would be enforced from 11 a.m. to 5 p.m on each day of the three-day event to accommodate the practice sessions and the race. The Coast Guard proposes to permanently establish this safety zone and enforce it in future years on particular days and times specified via announcement in the Federal Register.

Patchogue Bay is located on the south shore of Long Island, New York. The boat race consists of approximately 40 power boats performing at high rates of speed in close proximity to other power boats over a specified area of Patchogue Bay, Patchogue, NY. The Coast Guard is proposing this safety zone in order to provide for the safety of the maritime community and spectators viewing the power boat race from the water should an accident, such as a collision of the competing power boats, occur during the race.

The permanent safety zone would be enforced during the testing of the powerboats on days prior to the race as well as during the race itself. For 2008, the safety zone would be enforced on August 22 and 23, 2008 and the day of the race, August 24, 2008. In 2008, the safety zone would be enforced from 11 a.m. until 5 p.m. during the event and testing sessions. This will provide for sufficient time to clear the safety zone area prior to the testing session and the start of the race, as well as additional time should testing or the race run over the scheduled period. Dates and times for future occurrences of the race and the enforcement of the safety zone will be announced in the Federal Register. Prior to enforcement of the safety zone, Coast Guard Sector Long Island Sound will cause notice of the enforcement of the safety zone to be made by all appropriate means to ensure the widest publicity among the affected segments of the public and will include publication in the local notice to mariners, marine information broadcasts, and facsimile. The safety zone would be established on the navigable waters of Patchogue Bay as bounded by the following geographic coordinates: Beginning at a point on land in Patchogue, NY at approximate position 40°44′56″ N, 073°00′49″ W, then running south to a point in Patchogue Bay at approximate position 40°44′29″ N, 073°00′49″ W; then running south east to a point in Great South Bay at approximate position 40°43′47″ N, 072°59′54″ W; then running east to approximate position 40°43′53″ N, 072°58′46″ W; then to approximate position 40°43′57″ N, 072°57′06″ W, then north to a point on land at approximate position 40°44′29″ N, 072°57′09″ W. All coordinates are North American Datum 1983.

The Captain of the Port anticipates minimal negative impact on vessel traffic because of this safety zone due to the limited area covered by this safety zone and the short enforcement period. Any violation of the proposed temporary safety zone described herein would be punishable by, among others, civil and criminal penalties, in rem liability against the offending vessel, and license sanctions.

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.

This regulation may have some impact on the public, but the potential impact will be minimized for the following reasons: the zone would only be enforced for a maximum of eight hours on three specific days, and vessels may transit in all areas around the zone at all times.

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 may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in those portions of Patchogue Bay, Patchogue, New York and marinas located within Patchogue Bay covered by the safety zone that temporarily may not be able to receive customers. The economic impact on these small entities is not significant as vessels will be able to transit around the safety zone and in all other navigable portions of Patchogue Bay while the safety zone is being enforced and vessels desiring to transit to marinas located within the vicinity of the safety zone may request permission from the Captain of the Port to enter and transit the zone.

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 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Kristen Schroeder, Prevention Department, Coast Guard Sector Long Island Sound at 203-468-4459. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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.

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

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 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.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

The Supervisor of Shipbuilding, Conversion and Repair (SUPERVISOR), located in Bath, Maine is responsible for United States Navy shipbuilding activities at AUSTAL, USA located in Mobile, Alabama. In accordance with Department of Defense and Department of the Navy guidance, the SUPERVISOR is responsible for the antiterrorism efforts and force protection of Department of the Navy assets under his charge. The SUPERVISOR established SUPSHIP Bath Detachment Mobile, Alabama to assist to that end by managing a portion of the activities at the AUSTAL, USA shipbuilding facility in Mobile, Alabama. The first ship launch occurred in late April 2008. Until the final rule goes into effect, the Mobile District has imposed a temporary restricted area pursuant to the procedures at 33 CFR 334.3(c). The temporary restricted area will be identified by marker buoys.

In response to a request by the United States Navy, and pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat 892; 33 U.S.C. 3), the Corps is proposing to amend the regulations in 33 CFR Part 334 by establishing a new restricted area.

a. Review Under Executive Order 12866. This proposed rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply.

b. Review Under the Regulatory Flexibility Act. This proposed rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). Unless information is obtained to the contrary during the public notice comment period, the Corps expects that the economic impact of the proposed restricted area would have practically no impact on the public, any anticipated navigational hazard or interference with existing waterway traffic. This proposed rule, if adopted, will have no significant economic impact on small entities.

c. Review Under the National Environmental Policy Act. The Corps expects that the proposed rule will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered. After it is prepared, it may be reviewed at the District office listed at the end of the FOR FURTHER INFORMATION CONTACT, above.

d. Unfunded Mandates Act. The proposed rule does not impose an enforceable duty among the private sector and, therefore, are not a Federal private sector mandate and are not subject to the requirements of Section 202 or 205 of the Unfunded Mandates Reform Act (Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1501 et seq.). We have also found under Section 203 of the Act, that small governments will not be significantly or uniquely affected by this rulemaking.

For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:

The Office proposes to revise the Trademark Rules of Practice (37 CFR Part 2) to set forth the requirements for signature of documents filed in the Office, recognition of representatives, and establishing and changing the correspondence address in trademark cases. The purpose of the rule is to codify and clarify current practice.

References below 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. References to “TMEP” or “Trademark Manual of Examining Procedure” refer to the 5th edition, September 2007. References to a “party to a proceeding” refer to a party to a proceeding before the Trademark Trial and Appeal Board, e.g., an opposer, cancellation petitioner, or a party to an interference or concurrent use proceeding.

Under 37 CFR 10.14, only the following individuals may represent an applicant, registrant, or party to a proceeding before the Office in a trademark case:

• An attorney as defined in § 10.1(c), i.e., an attorney who is a member in good standing of the bar of the highest court of a state in the United States;

• A Canadian patent agent who is registered and in good standing as a patent agent under § 11.6(c) for the limited purpose of representing parties located in Canada;

• A Canadian attorney or agent who has been granted recognition by the Director of the Office of Enrollment and Discipline of the United States Patent and Trademark Office (“OED Director”) to represent parties located in Canada; or

• An individual who is not an attorney but was recognized to practice before the Office in trademark cases under this chapter prior to January 1, 1957.

An individual who does not meet the requirements of § 10.14 cannot: Prepare documents to be filed in the Office; sign amendments, responses to Office actions, petitions to the Director under § 2.146, or letters of express abandonment; authorize examiner's amendments, priority actions, or changes of correspondence address; or otherwise represent an applicant, registrant, or party to a proceeding in the Office. 5 U.S.C. 500(d); 37 CFR 10.14(e); TMEP sections 602.03 and 605.02.

To be recognized as a representative, a practitioner who meets the requirements of § 10.14 (“qualified practitioner”) may:

• File a power of attorney signed by the applicant, registrant, or party to a proceeding in a trademark case, or by someone with legal authority to bind the applicant, registrant, or party (e.g., a corporate officer or general partner of a partnership);

• Sign a document on behalf of an applicant, registrant, or party to a proceeding who is not already represented by a qualified practitioner from a different firm; or

• Appear in person on behalf of an applicant, registrant, or party to a proceeding who is not already represented by a qualified practitioner from a different firm.

Once the Office has recognized a qualified practitioner as the representative of an applicant or registrant, the Office will communicate and conduct business only with that practitioner, or with another qualified practitioner from the same firm. The Office will not conduct business directly with the applicant or registrant, or with another qualified practitioner from a different firm, unless the applicant or registrant files a new power of attorney or revocation of the previous power. TMEP sections 601.02, 602.07, and 603.02(a).

For purposes of recognition as a representative, the Office considers a power of attorney to end when the mark is registered, when ownership changes, or when the application is abandoned. TMEP section 602.01.

After a change in ownership has been recorded, if a new qualified practitioner appears on behalf of the new owner, the Office will communicate and conduct business with that practitioner even if no new power of attorney or revocation of the previous power is filed. On the other hand, if the previously recognized practitioner appears on behalf of the new owner (which might occur when the new owner is a related company), the Office will continue to conduct business and correspond with that practitioner.

Upon receipt of an application, the Office enters the correspondence address in accordance with the following guidelines:

• If the application is transmitted by a qualified practitioner, or includes a power of attorney designating a qualified practitioner, the Office will send correspondence to the practitioner.

• If an application is not being prosecuted by a qualified practitioner and the applicant has not designated a correspondence address, but a domestic representative has been appointed, the Office will send correspondence to the domestic representative.

• If an application is not being prosecuted by a qualified practitioner but the applicant designates in writing a correspondence address other than its own address, the Office will send correspondence to that address.

• If the application is not being prosecuted by a qualified practitioner, no domestic representative has been appointed, and the applicant has not designated a different address for correspondence, the Office will send correspondence directly to the applicant at its address of record.

The Office reestablishes the correspondence address in accordance with these same guidelines upon the examination of an affidavit of use or excusable nonuse under section 8 of the Trademark Act, affidavit or declaration of incontestability under section 15 of the Act, renewal application under section 9 of the Act, or request for amendment or correction of a registration under section 7 of the Act. TMEP section 603.02(c). Due to the length of time that elapses between registration and filings under sections 7, 8, 9, 15 and 71 of the Act (which can be 10 years or more), the Office will recognize a qualified practitioner who transmits such a filing even if there is no new power of attorney or revocation of a previous power.

Once the correspondence address is established as discussed above, the Office will send correspondence to that address unless there is a written request to change the address, signed by the practitioner who has been recognized by the Office, or by the applicant or registrant or someone with legal authority to bind the applicant or registrant (e.g., a corporate officer or general partner of a partnership) if the applicant or registrant is not represented by a qualified practitioner. 37 CFR 2.18(b); TMEP sections 601.02, 602.07, and 603.02(a).

Once the Office has recognized a qualified practitioner as the representative of an applicant or registrant, only that practitioner, or another qualified practitioner from the same firm, can sign a request to change the address, unless the applicant or registrant files a new power of attorney or revocation of the previous power, or the recognized practitioner files a request to withdraw. TMEP sections 603.02(a) and 605.02.

If a qualified practitioner transmits documents on behalf of an applicant or registrant who is not already represented by another qualified practitioner from a different firm, the Office will construe this as including a request to change the correspondence address to that of the practitioner. TMEP section 603.02(a).

Because an individual who is not authorized under § 10.14 cannot represent an applicant, registrant, or party to a proceeding before the Office, the Office will not act on documents that are not properly signed. TMEP sections 602.03 and 605.02. When it is unclear whether a response to an Office action is signed by a proper person, the Office will notify the applicant or registrant that the response is incomplete. See TMEP sections 605.05(a) and 712.03 regarding notices of incomplete response. When it is unclear whether a document other than a response to an Office action is signed by a proper person, the Office will notify the applicant or registrant that no action will be taken on the document, unless the applicant or registrant either establishes the signatory's authority or submits a properly signed document. See TMEP section 605.05.

When the Office learns that a person who is not qualified under § 10.14 is acting as the representative of an applicant, registrant, or party to a proceeding, the Office will notify the affected applicant, registrant, or party that the individual is not entitled to practice before the Office in trademark matters, and therefore, may not represent the applicant, registrant, or party; that any power of attorney is void ab initio; that the individual may not sign responses to Office actions; and that all correspondence will be sent to the domestic representative if one has been designated, or alternatively, to the applicant, registrant, or party to a proceeding at its address of record. If the Office receives a response signed by such an unqualified person, the response will be treated as incomplete. This same practice is followed when the Office learns that a practitioner has been suspended or excluded from practice before the Office.

Where appropriate, the Office proposes to reword or reorganize the rules for clarity, and to add headings to make it easier to navigate through the rules.

The Office proposes to redesignate § 2.17(a) as § 2.17(b)(2).

The Office proposes to redesignate § 2.17(b) as § 2.17(f).

The Office proposes to redesignate § 2.17(c) as § 2.17(b), and to revise it to provide that the Office will recognize a qualified practitioner who signs a document or appears in person in a trademark case only if the applicant, registrant, or party to a proceeding is not already represented by a qualified practitioner from a different firm. This is consistent with TMEP sections 602.01 and 602.07.

The Office proposes to set forth the requirements for powers of attorney in § 2.17(c). A power must: (1) Designate by name at least one practitioner who meets the requirements of 37 CFR 10.14; and (2) be signed by the individual applicant, registrant, or party to a proceeding pending before the Office, or by someone with legal authority to bind the applicant, registrant, or party (e.g., a corporate officer or general partner of a partnership). Once the applicant, registrant, or party to a proceeding has designated a qualified practitioner(s), that practitioner may sign an associate power of attorney appointing another qualified practitioner(s) as an additional person(s) authorized to represent the applicant, registrant, or party to a proceeding. This is consistent with TMEP sections 602.01 and 602.01(b).

The Office proposes to amend § 2.17(d) to add a provision that the owner of an application or registration may appoint an attorney through TEAS for up to 20 applications or registrations that have the identical owner and attorney. This is consistent with TMEP section 602.01(a).

The Office proposes to add § 2.17(e) to set forth the circumstances under which a Canadian attorney or agent may represent parties located in Canada. A Canadian patent agent who is registered with the Office and in good standing as a patent agent under § 11.6(c) may represent parties located in Canada before the Office in trademark matters. A Canadian attorney or agent who is registered or in good standing with the Canadian Intellectual Property Office, but not registered as a patent agent under § 11.6(c), may represent parties located in Canada if he or she has been authorized to do so by the OED Director. Before undertaking to represent an applicant, registrant, or party before the Office, and before filing a paper with the Office, a Canadian attorney or agent who is not registered with the Office and in good standing as a patent agent under § 11.6(c) must both file a request for and be granted recognition to practice before the Office in trademark cases. The request for recognition must be filed with OED. The request must be granted by the OED Director before representation is undertaken and before any application or other document is filed in the Office. The request for recognition must include proof that he/she satisfies the requirements of 35 U.S.C. 32 and 37 CFR § 10.14(c). This is consistent with TMEP section 602.06(a). The Office has separately proposed to replace 37 CFR 10.14(c) with 37 CFR 11.14(c) and add 37 CFR 11.14(f). Under 37 CFR 11.14(c), a Canadian attorney or agent will be required to file a written application for reciprocal recognition under 37 CFR 11.14(f), provide evidence satisfying § 11.14(c), and pay an application fee that will be required by 37 CFR 1.21(a)(1)(i).

Once recognized by OED, the Canadian attorney or agent can only represent parties who are located in Canada. He or she cannot represent Canadian nationals who are not located in Canada. Thus, a Canadian attorney or agent could not represent a Canadian national who resides in California and has access to a mailing address in Canada.

The Office proposes to add § 2.17(g)(1), to provide that the Office considers a power of attorney to end with respect to a pending application when the mark is registered, when ownership changes, or when the application is abandoned. This is consistent with TMEP section 602.01.

The Office proposes to add § 2.17(g)(2), to provide that the Office considers a power of attorney filed after registration to end when the mark is cancelled or expired, or when ownership changes. If the power was filed in connection with an affidavit of use or excusable nonuse under section 8 or 71 of the Trademark Act, affidavit or declaration of incontestability under section 15 of the Act, renewal application under section 9 of the Act, or request for amendment or correction under section 7 of the Act, the power is deemed to end upon acceptance or final rejection of the filing.

Current § 2.18 sets forth the procedures for establishing the correspondence address. The Office proposes to revise and reorganize § 2.18 to clarify the procedures for establishing and changing a correspondence address.

Proposed § 2.18(a)(2) provides that if a qualified practitioner transmits a document(s) on behalf of an applicant, registrant, or party to a proceeding in a trademark case, the Office will send correspondence to the practitioner transmitting the documents only if the applicant, registrant, or party to a proceeding is not already represented by another qualified practitioner. This is consistent with TMEP sections 602.07, 603.01, and 603.02(a).

Proposed § 2.18(a)(6) provides that the Office will send correspondence to only one address. This is consistent with current § 2.18(b).

Proposed § 2.18(a)(7) provides that once the Office has recognized a qualified practitioner as the representative of an applicant, registrant, or party to a proceeding, the Office will communicate and conduct business only with that practitioner, or with another qualified practitioner from the same firm. The Office will not conduct business directly with the applicant, registrant, or party to a proceeding, or with another qualified practitioner from a different firm, unless the applicant, registrant, or party to a proceeding files a revocation of the power of attorney under § 2.19(a), and/or a new power of attorney that meets the requirements of § 2.17(c). The proposed rule further provides that a written request to change the correspondence address does not revoke a power of attorney. This is consistent with TMEP sections 601.02, 602.07, and 603.02(a).

Proposed § 2.18(b)(1) provides that when a physical or e-mail correspondence address changes, the applicant, registrant, or party to a proceeding must file a written request to change the correspondence address. The request should be promptly filed. This is consistent with TMEP section 603.03.

Proposed § 2.18(b)(2) provides that a request to change the correspondence address must be made in writing, signed by the applicant, registrant, or party to a proceeding, someone with legal authority to bind the applicant, registrant, or party (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner, in accordance with § 2.193(e)(2). This is consistent with current § 2.18(b) and TMEP sections 603.02 and 603.02(a).

Proposed § 2.18(b)(3) provides that if an applicant or registrant files a new power of attorney that meets the requirements of § 2.17(c), the Office will change the correspondence address to that of the practitioner named in the power.

Proposed § 2.18(b)(4) provides that if a qualified practitioner transmits a document(s) on behalf of an applicant, registrant, or party to a proceeding who is not already represented by another qualified practitioner, the Office will construe this as including a request to change the correspondence address to that of the practitioner, and will send correspondence to the practitioner. This is consistent with TMEP section 603.02(a).

The Office proposes to add § 2.18(c)(1), to provide that even if there is no new power of attorney or written request to change the correspondence address, the Office will change the correspondence address upon the examination of an affidavit of use or excusable nonuse under section 8 or 71 of the Trademark Act, affidavit or declaration of incontestability under section 15 of the Act, renewal application under section 9 of the Act, or request for amendment or correction under section 7 of the Act. This is consistent with TMEP section 603.02(c). Due to the length of time that elapses between filings under sections 7, 8, 9, 15 and 71 of the Act (which can be 10 years or more), the Office automatically enters a new correspondence address upon examination of each filing.

The Office proposes to add § 2.18(c)(2), to provide that once the Office establishes a correspondence address upon examination of an affidavit, renewal application or section 7 request, a written request to change the address is required to change the address during the pendency of that filing.

The Office proposes to revise § 2.19(a) to clarify the requirements for revocation of a power of attorney. Proposed § 2.19(a)(1) provides that a request to revoke a power of attorney must be signed by the applicant, registrant, or party to a proceeding, or by someone with legal authority to bind the applicant, registrant, or party. This is consistent with TMEP section 602.04.

The Office proposes to add § 2.19(a)(3), stating that a request to change the correspondence address does not revoke a power of attorney.

The Office proposes to add § 2.19(a)(4), stating that a new power of attorney that meets the requirements of § 2.17(c) will be treated as a revocation of the previous power.

The Office proposes to remove the provision in the current § 2.19(a) that the Office will notify the affected person of the revocation of his or her authorization. The Office no longer issues such notices. Anyone who wants to know whether the revocation of a power of attorney has been entered can check the TARR database on the Office's Web site at http://tarr.uspto.gov.

The Office proposes to revise § 2.19(b) to set forth the requirements for filing a request to withdraw as attorney. This is consistent with TMEP section 602.05. The request should be filed soon after the practitioner notifies the client of his/her intent to withdraw, and must include the application serial number, registration number, or proceeding number; a statement of the reason(s) for the request to withdraw; and either (1) a statement that the practitioner has given due notice to the client that the practitioner is withdrawing from employment and will be filing the necessary documents with the Office; that the client was given notice of the withdrawal at least two months before the expiration of the response period, if applicable; that the practitioner has delivered to the client all documents and property in the practitioner's file concerning the application or registration to which the client is entitled; and that the practitioner has notified the client of any responses that may be due, and of the deadline for response; or (2) if there is more than one attorney of record, a statement that representation by co-counsel is ongoing.

The Office proposes to amend § 2.22(a)(11) to change a cross-reference.

The Office proposes to amend § 2.23(a)(2), which requires that a TEAS Plus applicant continue to receive communications from the Office by electronic mail during the pendency of the application, to add a requirement that a TEAS Plus applicant maintain a valid e-mail correspondence address in order to maintain TEAS Plus status. If the e-mail address changes, the applicant must notify the Office of the change.

The Office proposes to redesignate § 2.24 as § 2.24(a), and amend it to provide that if an applicant is not domiciled in the United States, the applicant may designate the name and address of some person resident in the United States on whom may be served notices or process in proceedings affecting the mark by: (1) Setting forth the name of the domestic representative in the initial application, or (2) filing a separate designation signed by the applicant, someone with legal authority to bind the applicant (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner.

Where the designation of domestic representative is set forth in the initial application, the designation may be signed by a person authorized to sign the application on behalf of applicant, pursuant to proposed § 2.193(e)(1). The Office does not question the authority of the signatory, unless there is an inconsistency in the record as to the signatory's authority to sign. TMEP section 804.04.

The Office proposes to add new § 2.24(b), to provide that a request to change or revoke a designation of domestic representative must be signed by the applicant, someone with legal authority to bind the applicant, or a qualified practitioner.

The Office proposes to amend § 2.33(a) to remove the definition of “person properly authorized to sign” a verification on behalf of applicant, and replace it with a cross-reference to proposed § 2.193(e)(1). The substance of this definition is unchanged.

The Office proposes to remove § 2.33(d), which provided for signature of verifications in applications filed through TEAS, because it is unnecessary. The procedure for signing a TEAS document is set forth in proposed § 2.193(c). This procedure is unchanged.

The Office proposes to amend § 2.62 and its heading to add a requirement that a response to an Office action be signed by the applicant, someone with legal authority to bind the applicant, or a qualified practitioner, in accordance with the requirements of proposed § 2.193(e)(2). This includes responses to suspension inquiries or letters of suspension. This is consistent with TMEP section 712.01.

The Office proposes to amend § 2.64(b) to add a requirement that a request for reconsideration of a final action be signed by the applicant, someone with legal authority to bind the applicant, or a qualified practitioner, in accordance with the requirements of proposed § 2.193(e)(2). This is consistent with current practice.

The Office proposes to amend § 2.68 to add a requirement that a request for express abandonment of an application be signed by the applicant, someone with legal authority to bind the applicant, or a qualified practitioner, in accordance with the requirements of proposed § 2.193(e)(2). This is consistent with TMEP section 718.01.

The Office proposes to revise § 2.74 to add a new paragraph (c), requiring that such an amendment be signed by the applicant, someone with legal authority to bind the applicant, or a qualified practitioner, in accordance with the requirements of proposed § 2.193(e)(2). This is consistent with TMEP section 605.02.

The Office proposes to amend § 2.76(b)(1) to change a cross-reference.

The Office proposes to amend § 2.87(d) to add a provision that a request to divide be signed by the applicant, someone with legal authority to bind the applicant (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner, in accordance with the requirements of proposed § 2.193(e)(2). This is consistent with TMEP section 1110.

The Office proposes to amend § 2.88(b)(1) to change a cross-reference.

The Office proposes to amend §§ 2.89 (a)(3) and (b)(3) to change cross-references.

The Office proposes to amend § 2.146(c) to add a provision that a petition to the Director be signed by the petitioner, someone with legal authority to bind the petitioner, or a qualified practitioner, in accordance with the requirements of proposed § 2.193(e)(2). This is consistent with TMEP section 1705.07. The proposed rule further provides that when facts are to be proved on petition, the petitioner must submit proof in the form of affidavits or declarations in accordance with § 2.20, signed by someone with firsthand knowledge of the facts to be proved. TMEP section 1705.03.

The Office proposes to amend § 2.161(b) to remove the definition of “person properly authorized to sign” an affidavit or declaration of use or excusable nonuse under section 8 of the Trademark Act (“section 8 affidavit”) and replace it with a cross-reference to proposed § 2.193(e)(1). The substance of this definition is unchanged.

The Office proposes to amend § 2.163(b) to add a provision that a response to an Office action issued in connection with a section 8 affidavit be signed by the owner, someone with legal authority to bind the owner, or a qualified practitioner, in accordance with the requirements of proposed § 2.193(e)(2). This is consistent with TMEP section 1604.16.

The Office proposes to amend § 2.167 to add a provision that an affidavit or declaration of incontestability under section 15 of the Trademark Act be filed in the name of the owner of the registration, and verified by the owner or a person properly authorized to sign on behalf of the owner under proposed § 2.193(e)(1). This is consistent with TMEP section 1605.04.

The Office proposes to amend § 2.171(a) to add a provision that a request for a new certificate of registration upon change of ownership be signed by the owner of the registration, someone with legal authority to bind the owner, or a qualified practitioner.

The Office proposes to remove the requirement in § 2.171(a) that the original certificate of registration be included with a request for a new certificate of registration upon change of ownership. This is consistent with current practice, and with Office practice in connection with requests to amend or correct registrations under section 7 of the Trademark Act. See notice at 69 FR 51362 (Aug. 29, 2004), removing the requirement that the original certificate be included with a section 7 request.

The Office proposes to amend § 2.171(b) to add a provision that a request to divide a registration upon change of ownership with respect to some but not all of the goods/services be signed by the owner of the registration, someone with legal authority to bind the owner (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner. This is consistent with current practice.

The Office proposes to amend § 2.172 to add a provision that a request for surrender of a registration be filed in the name of the owner of the registration, and signed by the owner, a person with legal authority to bind the owner, or a qualified practitioner. This is consistent with current practice.

The Office proposes to amend §§ 2.173(a) and 2.175(b)(2) to add a provision that a request to amend a registration or to correct the owner's error in a registration be filed by the owner and signed by the owner, someone with legal authority to bind the owner (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner. The requirement for filing in the name of the owner is consistent with current practice. However, the requirement for signature by someone with legal authority to bind the owner or a qualified practitioner changes current practice slightly. TMEP sections 1609.01(b) and 1609.10(b) now permit signature by a person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the owner, which could include someone without legal authority to bind the owner. The Office believes that the better practice would be to require that requests to amend or correct a registration be signed by someone with legal authority to bind the owner or by a qualified practitioner.

The Office proposes to amend § 2.184(b) to add a provision that a response to an Office action issued in connection with a renewal application be signed by the registrant, someone with legal authority to bind the registrant (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner, in accordance with the requirements of proposed § 2.193(e)(2). This is consistent with TMEP section 1606.12.

The Office proposes to redesignate § 2.193(a) as § 2.193(g).

The Office proposes to redesignate § 2.193(b) as § 2.193(h).

The Office proposes to move and reorganize the current § 2.193(c)(1) in proposed §§ 2.193 (a), (b) and (c).

Proposed § 2.193(a) provides that each piece of correspondence that requires a signature must bear: (1) A handwritten signature personally signed in permanent ink by the person named as the signatory, or a true copy thereof; or (2) an electronic signature that meets the requirements of paragraph (c). The proposed rule makes it clear that a handwritten signature must be personally signed by the person named as the signatory, and an electronic signature must be personally entered by the person named as the signatory.

Proposed § 2.193(a)(2) provides that the Office will accept a signature that meets the requirements of paragraph (c) on all correspondence, whether filed on paper, by facsimile transmission, or through TEAS or ESTTA. This is consistent with TMEP section 804.05.

Proposed § 2.193(c) sets forth the requirements for signing a document electronically, previously set forth in § 2.193(c)(1)(iii).

The Office proposes to redesignate § 2.193(c)(2) as § 2.193(f).

The Office proposes to add new § 2.193(d), to require that the name of the person who signs a document in connection with a trademark application or registration must be set forth in printed or typed form immediately below or adjacent to the signature, or identified elsewhere in the filing (e.g., in a cover letter or other document that accompanies the filing).

The Office proposes to redesignate § 2.193(d) as § 2.193(i).

The Office proposes to add new § 2.193(e), setting forth the proper person to sign various types of documents that are commonly filed in connection with trademark applications and registrations.

Proposed § 2.193(e)(1) sets forth the definition of a person who is properly authorized to sign a verification in support of an application for registration, amendment to an application for registration, allegation of use under § 2.76 or § 2.78, request for extension of time to file a statement of use under § 2.89, or an affidavit under section 8, 15 or 71 of the Trademark Act. This is consistent with current §§ 2.33(a) and 2.161(b).

Proposed § 2.193(e)(2) provides that the applicant or registrant, someone with legal authority to bind the applicant or registrant (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner must sign responses to Office actions, amendments to applications, requests for reconsideration of final actions, requests for express abandonment, requests to divide, notices of change of address, and petitions under § 2.146. This is consistent with proposed §§ 2.62(b), 2.64(b), 2.68(a), 2.74(c), 2.87(d), 2.146(c), 2.163(b), and 2.184(b), discussed above.

Proposed § 2.193(e)(2)(i) provides that if the applicant or registrant is represented by a qualified practitioner, the practitioner must sign, except where correspondence is required to be signed by the applicant or registrant. This is consistent with current § 10.18(a). This applies to both in-house and outside counsel.

Proposed § 2.193(e)(2)(ii) provides that if the applicant or registrant is not represented by a qualified practitioner, the individual applicant or registrant, or someone with legal authority to bind the applicant or registrant (e.g., a corporate officer or general partner of a partnership) must sign. In the case of joint applicants or joint registrants who are not represented by a qualified practitioner, all must sign. This is consistent with TMEP sections 605.02, 712.01 and 712.01(a)(i).

Proposed § 2.193(e)(3) provides that the individual applicant or registrant or someone with legal authority to bind the applicant or registrant (e.g., a corporate officer or general partner of a partnership) must sign powers of attorney and revocations of powers of attorney; that in the case of joint applicants or joint registrants, all must sign; that once the applicant or registrant has designated a qualified practitioner(s), the named practitioner may sign an associate power of attorney appointing another qualified practitioner(s) as an additional person(s) authorized to prosecute the application or registration; and that if the applicant or registrant revokes the original power of attorney, this revocation also discharges any associate power signed by the practitioner whose power has been revoked. This is consistent with proposed §§ 2.17(c) and 2.19(a), discussed above.

Proposed § 2.193(e)(4) provides that someone with firsthand knowledge of the facts regarding unintentional delay must sign a petition to revive under § 2.66. This is consistent with current §§ 2.66(b)(2) and (c)(2).

Proposed § 2.193(e)(5) provides that the registrant or the registrant's representative must sign a renewal application. This is consistent with current § 2.183(a).

Proposed § 2.193(e)(6) provides that the owner of the registration, someone with legal authority to bind the owner (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner must sign a request for correction, amendment or surrender of a registration; and that in the case of joint owners who are not represented by a practitioner authorized to practice before the Office under 37 CFR 10.14, all must sign. This is consistent with proposed §§ 2.172, 2.173(a) and 2.175(b)(2).

Proposed § 2.193(e)(7) provides that a designation or revocation of a domestic representative must be signed by applicant or registrant, someone with legal authority to bind the applicant or registrant (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner.

Proposed § 2.193(e)(8) provides that a person transmitting documents to the Office may sign a cover letter or transmittal letter; and that the Office neither requires cover letters nor questions the authority of a person who signs a communication that merely transmits documents. This is consistent with TMEP section 605.03.

Executive Order 12866: This rule has been determined not to be significant for purposes of Executive Order 12866.

Administrative Procedure Act: This rule merely involves rules of agency practice and procedure within the meaning of 5 U.S.C. 553(b)(A). Therefore, this rule may be adopted without prior notice and opportunity for public comment under 5 U.S.C. 553(b) and (c), or thirty-day advance publication under 5 U.S.C. 553(d). However, the Office has chosen to seek public comment before implementing the rule.

Regulatory Flexibility Act: The Deputy General Counsel for General Law of the United States Patent and Trademark Office hereby certifies to the Chief Counsel for Advocacy of the Small Business Administration that this notice of proposed rule making, Changes in Requirements for Signature of Documents, Recognition of Representatives, and Establishing and Changing the Correspondence Address in Trademark Cases (RIN 0651-AC26), will not have a significant impact on a substantial number of small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)).

As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 (or any other law), neither a regulatory flexibility analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is required. See 5 U.S.C. 603.

The proposed rules clarify certain requirements for signature of documents filed in the Office, recognition of representatives, and establishing and changing the correspondence address in trademark cases. In large part, the proposed rule changes are intended to codify existing practice. Although the proposed rules may affect trademark applicants or registrants, because they codify the existing practice of the Office, the changes proposed in this notice will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates: The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments or the private sector.

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

Paperwork Reduction Act: This proposed rule involves information collection requirements which are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The collection of information in this proposed rule have been reviewed and previously approved by the OMB under OMB control numbers: 0651-0054, 0651-0027 and 0651-0040.

The United States Patent and Trademark Office is not resubmitting an information collection package to OMB for its review and approval because the changes in this proposed rule would not affect the information collection requirements associated with the information collections under OMB control numbers 0651-0054, 0651-0027 and 0651-0040. The changes in this notice are limited to amending the rules of practice to codify current practice with respect to the proper party to sign various documents and current procedures for appointment, revocation or withdrawal of attorneys and domestic representatives.

Interested persons are requested to send comments regarding these information collections, including suggestions for reduction of this burden to: (1) The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and (2) Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451 (Attn: Mary Hannon).

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

References below 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. References to “TMEP” or “Trademark Manual of Examining Procedure” refer to the 5th edition, September 2007. References to the Trademark Trial and Appeal Board Manual of Procedure refer to the 2nd edition, Rev. 1, March 12, 2004.

Where appropriate, the Office proposes to reword or reorganize the rules for clarity, and to add headings to make it easier to navigate through the rules.

The Office proposes to amend § 2.21(a) to require that an application must be in the English language to receive a filing date.

The Office proposes to amend § 2.23(a)(2), which requires that a TEAS Plus applicant continue to receive communications from the Office by electronic mail during the pendency of the application, to add a requirement that a TEAS Plus applicant maintain a valid e-mail correspondence address in order to maintain TEAS Plus status. If the e-mail address changes, the applicant must notify the Office of the new e-mail address. If applicant chooses to receive correspondence on paper, applicant will have to pay the processing fee required by §§ 2.6(a)(1)(iv) and 2.23(b).

The Office proposes to amend § 2.32(a)(3)(iii) to indicate that the requirement for inclusion of the names and citizenship of the general partners in an application by a partnership applies only to domestic partnerships. Because the Office does not track the varying legal effects of partnership status in foreign countries, and the relevance of this additional information has not been established, this requirement does not apply to foreign partnerships. This is consistent with TMEP section 803.03(b).

The Office proposes to add new § 2.32(a)(3)(iv) to provide that if the applicant is a domestic joint venture, the application must include the names and citizenship of all active members of the joint venture. This is consistent with TMEP section 803.03(b).

The Office proposes to amend §§ 2.32(a)(7) and (a)(8) to change periods to semi-colons.

The Office proposes to add new § 2.32(a)(9), providing that if a mark includes non-English wording, the applicant must submit an English translation of that wording; and new § 2.32(a)(10), providing that if the mark includes non-Latin characters, the applicant must submit a transliteration of those characters and either a translation of the corresponding non-English word(s) or a statement that the transliterated term has no meaning in English. This is consistent with the long-standing practice of the Office. TMEP sections 809 et seq.

The Office proposes to amend § 2.33(b)(1) to remove the requirement that an application include a verified statement that the applicant “has adopted” the mark. This language is not required by statute and is deemed unnecessary.

The Office proposes to amend §§ 2.34(a)(1)(i), (a)(2), (a)(3)(i), and (a)(4)(ii) to change “must allege” to “must also allege.” This makes it clear that the requirement for an allegation of current use or bona fide intention to use the mark in commerce, applies to verifications filed after the application filing date.

The Office proposes to add new § 2.34(a)(1)(v) to provide that if more than one item of goods or services is specified in a section 1(a) application, the dates of use need be for only one of the items specified in each class, provided that the particular item to which the dates apply is designated. This requirement for section 1(a) applications previously appeared in § 2.33(a)(2), but was inadvertently removed effective October 30, 1999, by the final rule published at 64 FR 48900 (Sept. 8, 1999). This requirement is consistent with the requirements for allegations of use under §§ 2.76(c) and 2.88(c).

The Office proposes to amend §§ 2.44(b) and 2.45(b), which pertain to collective and certification marks, to add a reference to section 66(a) applications. This corrects an oversight.

The Office proposes to amend § 2.47(a) to remove the requirement for a specific allegation that a mark has been in “lawful” use in commerce in an application for registration on the Supplemental Register. Because the definition of “commerce” in section 45 of the Trademark Act is “all commerce which may lawfully be regulated by Congress,” the Office presumes that an applicant who alleges that “the mark is in use in commerce,” is claiming lawful use. The Office generally questions the lawfulness of the alleged use in commerce only where the record shows a clear violation of law, such as the sale or transportation of a controlled substance. TMEP section 907.

The Office proposes to add new § 2.48 to provide that the Office does not issue duplicate registrations. If two applications on the same register would result in registrations that are exact duplicates, the Office will permit only one application to mature into registration, and will refuse registration in the other application. This codifies the long-standing practice of the Office. TMEP section 703. The Office will normally refuse registration in the later-filed application. The applicant may overcome the refusal by abandoning the earlier-filed application or surrendering the registration.

The Office proposes to amend § 2.52(b) to provide that special form drawings of marks that do not include color “should” show the mark in black on a white background, rather than that the drawing “must” show the mark in black on a white background. This gives examining attorneys discretion to accept a drawing that shows the mark in white on a black background, if this will more accurately depict the mark.

The Office proposes to amend § 2.52(b)(1) to change the heading “Color marks” to “Marks that include color.” This corrects an error. Color marks are marks that consist solely of one or more colors used on particular objects, and § 2.52(b)(1) applies to all marks that include color.

The Office proposes to amend § 2.53(a) to remove the reference to submission of a digitized image of a standard character mark as a drawing in an application filed via the Trademark Electronic Application System (“TEAS”). This is no longer an option. An applicant who wants to apply for a standard character mark through TEAS must enter the mark in the appropriate field on the TEAS form, and check the box to claim that the mark consists of standard characters. TEAS generates the drawing. The Office also proposes to combine §§ 2.53(a)(1) and (2), because the requirements for standard character drawings in TEAS and TEAS Plus applications are now the same.

The Office proposes to amend § 2.56(b)(1) to add a reference to “displays associated with the goods.” This makes the rule consistent with the definition of “use in commerce” in section 45 of the Act.

The Office proposes to amend § 2.56(d)(2) to add a provision that where an applicant files a paper specimen that exceeds the size requirements of paragraph (d)(1), and the Office creates a digital facsimile copy of the specimen, the Office will destroy the original bulky specimen. This is consistent with current practice. TMEP section 904.02(b).

The Office proposes to amend § 2.56(d)(4) to provide that specimens filed through TEAS may be in .pdf format. This provides TEAS filers with an additional option for filing specimens, and is consistent with current practice.

The Office proposes to amend § 2.62 and its heading to add a requirement that a response to an Office action be signed by the applicant, someone with legal authority to bind the applicant (e.g., a corporate officer or general partner of a partnership), or a practitioner who meets the requirements of § 10.14 (“qualified practitioner”). This is consistent with TMEP section 712.01.

The Office proposes to amend § 2.64(c)(1) to state that the filing of an amendment to allege use does not extend the deadline for filing a response to an outstanding Office action, appeal to the Trademark Trial and Appeal Board, or petition to the Director. This is consistent with current practice. TMEP section 1104.

The Office proposes to amend § 2.65(a) to add a reference to a notice of appeal as a response that avoids abandonment of an application. This is consistent with section 12(b) of the Act.

The Office proposes to revise § 2.73 to provide that only an application that includes section 1(a) of the Trademark Act as a filing basis, or for which an acceptable allegation of use under § 2.76 or § 2.88 has been filed, may be amended to seek concurrent use registration. The rule currently provides that applications under section 44 or section 66(a) of the Act may be amended to recite concurrent use. However, because section 2(d) of the Act requires concurrent lawful use in commerce by the parties to a concurrent use proceeding, the Office deems it inappropriate to allow amendment to seek concurrent use absent allegations and evidence of use in commerce. The Office also proposes to add a statement to § 2.99(g) that applications based solely on section 44 or section 66(a) are not subject to concurrent use registration proceedings.

The Office proposes to revise § 2.74 to modernize the language, and to add a provision that an amendment to an application must be signed by the applicant, someone with legal authority to bind the applicant (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner. This is consistent with TMEP section 605.02.

The Office proposes to amend § 2.76(d) to provide that an amendment to allege use (“AAU”) should be captioned “Allegation of Use” rather than “amendment to allege use.” This is consistent with the language on the Office's TEAS form. The term “allegation of use” encompasses both AAUs under § 2.76 and statements of use (“SOUs”) under § 2.88. The principal difference between AAUs and SOUs is the time of filing, and the same TEAS form is used for both filings. The proposed rule merely sets forth the preferred title. The Office will still accept documents titled “amendment to allege use” or “statement of use.”

The Office proposes to amend § 2.77 to add a provision that amendments deleting a basis in a multiple-basis application, notices of change of attorney, and notices of change of address can be entered in a section 1(b) application during the period between the issuance of the notice of allowance and the submission of a statement of use. This is consistent with current practice. TMEP section 1107.

The Office proposes to amend § 2.88(b)(1)(ii) to make it clearer that the dates of use specified in a statement of use must pertain to the goods or services identified in the notice of allowance.

The Office proposes to amend § 2.88(b)(3) to provide that the applicant must pay a filing fee sufficient to cover at least one class within the statutory time for filing the statement of use, or the application will be abandoned. If the applicant submits a fee insufficient to cover all the classes in a multiple-class application, the applicant must specify the classes to be abandoned. If the applicant submits a fee sufficient to pay for at least one class, but insufficient to cover all the classes, and the applicant has not specified the class(es) to which the fee applies, the Office will issue a notice granting the applicant additional time to submit the fee(s) for the remaining classes, or specify the class(es) to be abandoned. If the applicant does not submit the required fee(s) or specify the class(es) to be abandoned within the set time period, the Office will apply the fees paid to the lowest numbered class(es) in ascending order, and will delete the goods/services in the higher class(es) from the application. This is consistent with current practice.

The Office proposes to amend § 2.88(d) to provide that an SOU should be captioned “Allegation of Use” rather than “statement of use.” This is consistent with the proposed amendment to § 2.76(d), discussed above.

The Office proposes to amend § 2.88(i)(2) to remove the provision that if any goods or services specified in the notice of allowance are omitted from the identification of goods or services in the SOU, the examining attorney will inquire about the discrepancy and permit the applicant to reinsert the omitted goods/services, and substitute a provision that the Office will delete the omitted goods/services from the application and will not permit the applicant to reinsert them. Currently, if goods/services identified in the application are omitted from a paper SOU, but the applicant has not indicated an intention to delete those goods/services from the application or filed a request to divide the application, the examining attorney will contact the applicant to confirm that the applicant intends to delete the omitted goods/services, and will permit the applicant to amend the SOU to claim use on or in connection with the omitted goods/services. However, when an SOU is filed electronically, the TEAS form requires the applicant to expressly indicate an intention to delete a class, or to delete goods/services within a class. Therefore, if any of the goods/services identified in the application do not appear in the identification of goods/services in a TEAS SOU, the examining attorney does not inquire about the discrepancy and the applicant may not reinsert the omitted goods/services. TMEP section 1109.13. There have been cases in which these inquiries concerning paper SOUs caused unnecessary delay in applications after the applicant intentionally omitted goods/services. Therefore, the Office is changing its practice with paper SOUs, and will discontinue issuing inquiries about omitted goods/services. Under the proposed rule, the practice with paper SOUs would be consistent with the current practice for electronically filed SOUs. Applicants are responsible for setting forth (or incorporating by reference) the goods/services on or in connection with which the mark is in use. This is consistent with the Office's long-standing practice with respect to requests for extensions of time to file a statement of use, set forth in § 2.89(f).

The Office proposes to revise §§ 2.89(a)(2) and (b)(2) to add a provision that if an applicant timely submits a fee sufficient to pay for at least one class, but insufficient to cover all the classes, and the applicant has not specified the class(es) to which the fee applies, the Office will issue a notice granting the applicant additional time to submit the fee(s) for the remaining classes, or specify the class(es) to be abandoned. If the applicant does not submit the required fee(s) or specify the class(es) to be abandoned within the set time period, the Office will apply the fees paid to the lowest numbered class(es) in ascending order, and will delete the goods/services in the higher class(es) from the application. This is consistent with current practice. TMEP section 1108.02(c).

The Office proposes to amend § 2.85(a) to add a reference to amendments to adopt international classification.

The Office proposes to combine §§ 2.85(b) and (c), pertaining to the United States classification, and to add a reference to amendments to adopt international classification.

The Office proposes to redesignate § 2.85(f), pertaining to certification marks and collective membership marks, as § 2.85(c), and to add a statement that the classes set forth in §§ 6.3 and 6.4 do not apply to applications based on section 66(a) of the Trademark Act and registered extensions of protection. This is consistent with current practice. TMEP section 1904.02(b). Classes A, B, & 200 are classes from the old United States classification system that are still used in the United States to classify certification and collective membership marks, but are not included in the international classes under the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (“Nice Agreement”). Therefore, they do not apply to section 66(a) applications and registered extensions of protection, in which classification is determined by the International Bureau of the World Intellectual Property Organization (“IB”). The Office proposes to make conforming amendments to §§ 6.3 and 6.4, indicating that these sections apply only to applications based on sections 1 and 44 of the Trademark Act and registrations resulting from such applications.

The Office proposes to redesignate § 2.85(d), which now provides that renewals filed on registrations issued under a prior classification system will be processed on the basis of that system, as § 2.183(f), and amend it to add an exception for registrations that have been amended to adopt international classification pursuant to § 2.85(e)(3).

Proposed § 2.85(d) provides that in an application under section 66(a) of the Act or registered extension of protection, the classification cannot be changed from the classification assigned by the IB; classes cannot be added; and goods or services cannot be transferred from one class to another in a multiple-class application. This is consistent with current practice. TMEP sections 1401.03(d) and 1904.02(b). Under Article 3(2) of the Madrid Protocol, the IB controls classification. A section 66(a) application and any resulting registration remains part of the international registration, and a change of classification in the United States would have no effect on the international registration.

The Office proposes to remove § 2.85(e), which now pertains to appeal and renewal fee deficiencies in multiple-class applications and registrations, and move the provisions on appeal fees to § 2.141(b). Procedures for processing renewal fee deficiencies in multiple-class registrations are already covered in § 2.183(e).

Proposed § 2.85(e) provides for changes in classification pursuant to the Nice Agreement. The international classification changes periodically, and these changes are listed in the International Classification of Goods and Services for the Purposes of the Registration of Marks, which is published by the World Intellectual Property Organization. The Nice Agreement edition currently in effect is the 9th edition, 2006, which became effective January 1, 2007.

Proposed § 2.85(e)(1) provides that when international classification changes, the new requirements apply only to applications filed on or after the effective date of the change.

Proposed § 2.85(e)(2) provides that in section 1 and 44 applications filed before the effective date of a change in classification, and registrations resulting from such applications, the applicant or registrant may reclassify the goods or services in accordance with the current edition, upon payment of the required fees. Proposed § 2.85(e)(3) sets forth the requirements for amendment of a pending application, and proposed § 2.85(e)(4) sets forth the requirements for amendment of a registration to reclassify the goods or services in accordance with the current edition of the Nice Agreement. This is consistent with current practice, set forth in TMEP sections 1401.11 and 1609.04.

The Office proposes to redesignate § 2.85(g), which provides that classification schedules shall not limit or extend the applicant's rights, as § 2.85(f), and amend it to note an exception that in section 66(a) applications, the scope of the identification of goods or services for purposes of permissible amendments is limited by the class, because the classification assigned by the IB cannot be changed. This is consistent with TMEP section 1402.07(a).

The Office proposes to break the current § 2.87(c) into subsections 2.87(c)(1) and (c)(2).

The Office proposes to add new § 2.87(c)(3) to provide that an applicant may file a request to divide out one or more bases of a multiple-basis application during the period between the issuance of the notice of allowance under section 13(b)(2) of the Act and the filing of a statement of use under § 2.88. This is consistent with current practice.

The Office proposes to add § 2.87(e) to provide that any outstanding time period for action by the applicant in the original application at the time of the division will be applicable to each new separate application created by the division. This provision appeared in § 2.87(a) when the rule was first enacted in 1989, but was inadvertently removed when the rules were amended to adjust application filing fees on January 19, 2005. See notices at 54 FR 37562 (Sept. 11, 1989) and 70 FR 2952 (Jan. 19, 2005). The Office proposes to add certain specified exceptions, consistent with current practice, as set forth in TMEP sections 1110.04 and 1110.05.

The Office proposes to add new § 2.87(f) to add a requirement that a request to divide be signed by the applicant, someone with legal authority to bind the applicant (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner. This is consistent with TMEP section 1110.

The Office proposes to add new § 2.87(g), setting forth the procedures for division of a section 66(a) application after a change in ownership with respect to some, but not all, of the goods or services. This incorporates existing practice, set forth in TMEP section 1110.08.

The Office proposes to add § 2.171(b)(2), providing for division of registered extensions of protection upon notification by the IB that ownership of an international registration has changed with respect to some, but not all, of the goods or services. This reflects current practice. TMEP section 1615.02.

The Office proposes to amend § 2.153 to remove the requirement for specification of the type of commerce in an affidavit claiming the benefits of section 12(c) of the Trademark Act of 1946 for a registration issued under the Trademark Acts of 1881 or 1905. Because the definition of “commerce” in section 45 of the Act is “all commerce which may lawfully be regulated by Congress,” the Office presumes that a registrant who alleges that the mark is in use in commerce is alleging that the mark is in use in a type of commerce that Congress can regulate. The Office amended the Trademark Rules of Practice to remove the requirement for a specification of the type of commerce in applications for registration under section 1(a) of the Act, allegations of use in applications under section 1(b) of the Act, and affidavits under sections 8 and 15 of the Act, effective October 30, 1999 (see notice at 64 FR 48900 (Sept. 8, 1999)), but inadvertently overlooked § 2.153.

The Office proposes to amend the center heading immediately after § 2.158 to delete the wording “DURING SIXTH YEAR.” This corrects an oversight. The heading covers rules pertaining to affidavits or declarations under section 8 of the Act (“section 8 affidavits”). Effective October 30, 1999, such affidavits must be filed every tenth year after registration as well as during the sixth year.

The Office proposes to amend § 2.161(g)(3) to provide that specimens filed through TEAS may be in .pdf format. This provides TEAS filers with an additional option for filing specimens, and is consistent with current practice.

The Office proposes to amend § 2.163(b) to provide that a registration will be cancelled for failure to respond to an Office action issued in connection with a section 8 affidavit only if there is no time remaining in the grace period under section 8(c)(1) of the Act. This corrects an oversight in the current rule. It would be inappropriate to cancel a registration under section 8 before expiration of the grace period. If there is time remaining in the grace period, the owner may file a complete new affidavit.

The Office proposes to amend § 2.167 to provide that an affidavit or declaration of incontestability under section 15 of the Trademark Act must be filed in the name of the owner of the registration, and verified by the owner or a person properly authorized to sign on behalf of the owner (§ 2.161(b)). This is consistent with TMEP section 1605.04.

The Office proposes to amend § 2.171(a) to remove the requirement that a request for a new certificate of registration upon change of ownership include the original certificate of registration. This is consistent with current practice, and with Office practice in connection with requests to amend or correct registrations under section 7 of the Trademark Act. See notice at 69 FR 51362 (Aug. 29, 2004), removing the requirement that the original certificate be included with a section 7 request.

The Office further proposes to add a statement to § 2.171(a) that in a registered extension of protection, the assignment must be recorded with the IB before it can be recorded in the Office. This is consistent with current § 7.22.

The Office proposes to redesignate § 2.171(b) as (b)(1), and amend it to indicate that it applies only to registrations resulting from applications based on section 1 or 44 of the Act.

The Office proposes to add § 2.171(b)(2), providing for division of registered extensions of protection upon notification by the IB that ownership of an international registration has changed with respect to some, but not all, of the goods or services. This reflects current practice. TMEP section 1615.02.

The Office proposes to reorganize § 2.173, pertaining to amendment of registrations. The current paragraph (a) is broken into proposed paragraphs (a) through (d).

Proposed § 2.173(a) provides that the owner of a registration may file a written request to amend a registration or to disclaim part of the mark in the registration; and that if the registration is involved in an inter partes proceeding before the Trademark Trial and Appeal Board (“TTAB”), the request must be filed by appropriate motion to the Board. This is consistent with the current § 2.173(a) and TMEP section 1609.01(b).

The current paragraph (b) is broken into proposed paragraphs (e) and (g).

Proposed § 2.173(b) sets forth the requirements for the request for amendment.

Proposed § 2.173(b)(2) requires that the request be filed by the owner and signed by the owner, someone with legal authority to bind the owner (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner. The requirement for filing in the name of the owner is consistent with current practice. However, the requirement for signature by someone with legal authority to bind the owner or by a qualified practitioner changes current practice slightly. TMEP section 1609.01(b) now permits signature by a person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the owner, which could include someone without legal authority to bind the owner. The Office believes that the better practice would be to require that a request to amend a registration be signed by someone with legal authority to bind the owner or by a qualified practitioner.

Proposed § 2.173(b)(3) provides that an amendment to change the mark include: A specimen showing the mark as used on or in connection with the goods or services; an affidavit or a declaration under § 2.20 stating that the specimen was in use in commerce at least as early as the filing date of the amendment; and a new drawing of the amended mark. This is consistent with current § 2.173(a) and TMEP section 1609.02(c).

Proposed § 2.173(c) provides that the registration must still contain registrable matter, and proposed § 2.173(d) provides that the amendment may not materially alter the mark. This is consistent with current § 2.173(a).

Proposed § 2.173(e) provides that no amendment to the identification of goods or services in a registration will be permitted, except to restrict the identification or change it in ways that would not require republication of the mark. This is consistent with current § 2.173(b).

The Office proposes to add new § 2.173(f) to provide that if the registration includes a disclaimer, description of the mark, or miscellaneous statement, any amendment must include a request to make any necessary conforming amendments to the disclaimer, description, or other miscellaneous statements. For example, if the mark is XYZ INC., with a disclaimer of the entity designator “INC.,” and the owner of the registration proposes to amend the mark to remove “INC.,” the proposed amendment should also request that the disclaimer be deleted. If an amendment is filed that does not include all necessary conforming amendments, the examiner will issue an Office action requiring the amendments.

Proposed § 2.173(g) provides that an amendment seeking the elimination of a disclaimer will not be permitted, unless deletion of the disclaimed portion of the mark is also sought. The proposed rule provides an exception to the general prohibition against amendments to delete disclaimers, currently set forth in § 2.173(b), in the limited situation where the mark is amended to delete the disclaimer.

The Office proposes to amend § 2.175(b)(2) to require that a request to correct the owner's error in a registration be filed by the owner and signed by the owner, someone with legal authority to bind the owner (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner. This is consistent with proposed § 2.173(b)(2), discussed above.

The Office proposes to redesignate § 2.184(b) as § 2.184(b)(1), and amend it to provide that a registration will expire for failure to respond to an Office action issued in connection with a renewal application only if there is no time remaining in the grace period under section 9(a) of the Act. This corrects an oversight in the current rule. It would be inappropriate to cancel a registration for failure to renew prior to expiration of the renewal grace period. If there is time remaining in the grace period, the registrant may file a complete new renewal application.

The Office proposes to add new § 2.183(f) to provide that applications for renewal of registrations issued under a prior classification system will be processed on the basis of that system, except where the registration has been amended to adopt international classification. The provision that applications for renewal of registrations issued under a prior classification system are processed on the basis of that system is currently set forth in § 2.85(d). The reference to amendment of classification is consistent with proposed § 2.85(e)(3), discussed above.

The Office proposes to add § 2.184(b)(2), requiring that a response to an Office action issued in connection with a renewal application be signed by the registrant, someone with legal authority to bind the registrant (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner. This is consistent with TMEP section 1606.12.

The Office proposes to amend § 7.11(a)(2) to provide that the applicant's entity in an application for international registration must be identical to the entity listed as owner of the basic application or registration. This is consistent with current practice. TMEP section 1902.02(c). Under section 61(a) of the Trademark Act, only the owner of the basic application or registration can file an international application.

The Office proposes to amend the last sentence of § 7.14(e) to change “submitted to” to “received in,” for clarity.

The Office proposes to amend § 7.25(a) to remove §§ 2.175 and 2.197 from the list of rules in part 2 that do not apply to an extension of protection of an international registration to the United States. Section 2.175 pertains to correction of mistakes by a registrant. Generally, all requests to record changes to an international registration must be filed at the IB, because an extension of protection of an international registration remains part of the international registration even after registration in the United States. However, in the limited circumstance where the holder of an international registration makes a mistake in a document filed during prosecution in the Office that affects only the extension of protection to the United States, the registrant may request correction of the error pursuant to § 2.175. For example, if there were a minor typographical error in an amendment to the identification of goods in a section 66(a) application, and the mark registered, the owner of the registration could request correction under § 2.175. If the Office grants the request, the Office will notify the IB of the change to the extension of protection to the United States.

Section § 2.197 provides a “certificate of mailing or transmission” procedure to avoid lateness due to mail delay. This procedure may currently be used by section 66(a) applicants during prosecution of applications. The procedure may also be available to owners of registered extensions of protection who file affidavits of use or excusable nonuse under section 71 of the Trademark Act. Therefore, its inclusion in § 7.25(a) was an error. Under §§ 2.197(a)(2)(ii) and 7.4(e), the certificate of mailing or transmission procedure remains inapplicable to international applications under § 7.11, responses to notices of irregularity under § 7.14, subsequent designations under § 7.21, requests to record changes of ownership under § 7.23, requests to record restrictions of the holder's right of disposal (or the release of such restrictions) under § 7.24, and requests for transformation under § 7.31. Note: On February 29, 2008, the Office published a notice of proposed rulemaking that would prohibit the use of certificates of mailing or transmission for certain specified documents for which an electronic form is available in the Trademark Electronic Application System (“TEAS”). See notice at 73 FR 11079. The Office is currently reviewing the comments received in response to this proposal.

The Office proposes to amend § 3.31 to add a new paragraph (a)(8), requiring that a cover sheet submitted with a request to record a change of ownership of a trademark application or registration must include the citizenship of the party receiving the interest; and that if the party receiving the interest is a domestic partnership or domestic joint venture, the cover sheet must include the names, legal entities, and national citizenship (or state or country of organization) of all general partners or active members that compose the partnership or joint venture. Currently, § 3.31(f) provides that the cover sheet “should” include this information, but the Office proposes to make it mandatory. This will allow for more efficient processing of trademark applications and registrations.

The applicant's entity and citizenship is required in an application for registration under § 2.32(a)(3)(iii) and must be submitted before the Office can issue a registration certificate in the name of the new owner. It is also required when the new owner of a registration wants to change ownership in the trademark database and/or obtain a new certificate of registration in the name of the new owner. Requiring the information whenever a change of ownership is recorded will eliminate the need for the examining attorney or the Post Registration examiner to issue an Office action requiring that it be submitted, which can cause substantial delay. Furthermore, in many cases, having complete information about the receiving party will ensure that the trademark database is automatically updated at the time of recordation or shortly thereafter. See TMEP sections 504 et seq. regarding automatic updating of the trademark database upon recordation of a change of ownership. This will often ensure that the original certificate of registration issues in the name of the new owner.

The Office proposes to amend §§ 2.6(b)(6), 2.21(b), 2.21(c), 2.27(d), 2.87(d), 2.146(e)(1), 2.146(e)(2), and 2.146(i) to delete references to “papers” and substitute “documents” where appropriate, in order to encompass documents filed or issued electronically.

The Office proposes to amend §§ 2.6(a)(19), 2.6(b)(3), and 2.56(d)(2) to delete references to “file wrapper” and substitute “record” or “official record.” The Office now maintains electronic records of applications and registrations.

The Office proposes to amend §§ 2.62, 2.65(a), 2.66(a)(1), 2.66(d), 2.66(f)(1), 2.81(b), 2.89(a), 2.89(a)(3), 2.89(g), 2.93, 2.99(d)(2), 2.146(d), 2.146(e)(1), 2.146(e)(2), 2.146(j)(1), 2.163(b), 2.165(b), 2.176, 2.184(b), 2.186(b), 7.39(b) and 7.40(b) to change references to “mailing” to “issuance,” to encompass Office actions and communications that are issued electronically.

The Office proposes to amend § 2.81(b) to remove the sentence stating that “The mailing date that appears on the notice of allowance will be the issue date of the notice of allowance,” because it is unnecessary. The rule already states that the notice of allowance will include the issue date.

The Office proposes to amend §§ 2.84(b), 2.173, 2.174, and 2.175 to delete references to “printed,” and substitute “issued” where appropriate, in order to encompass documents issued electronically.

The Office proposes to amend §§ 2.87(d), 2.146(e)(i), and 2.146(i) to delete references to “paper” and to substitute “document,” to encompass documents filed through TEAS.

The Office proposes to remove the references in § 2.173(c), 2.174, and 2.175(c) to printed copies of amendments and corrections under section 7 of the Act.

The Office proposes to reorganize § 2.141 to move the provisions pertaining to appeal fees, some of which were previously set forth in § 2.85(e), to § 2.141(b). The proposed rule is consistent with current practice, set forth in Trademark Trial and Appeal Board Manual of Procedure section 1202.04.

The Office proposes to amend §§ 2.6(a)(12) and (13), 2.38(b), 2.41(a), 2.44(a) and (b), 2.46, 2.47, 2.61(a), 2.64(c)(1), 2.65(c), 2.75(a) and (b), 2.81(a) and (b), 2.85(b), 2.88(a), 2.99(g), 2.146(b), and 2.167, to replace section symbols with the word “section.” This is consistent with references to the statute in other rules, and with the format recommended in the Federal Register Document Drafting Handbook, National Archives and Records Administration, Office of the Federal Register (Oct. 1998). Section symbols are used in rules and Federal Register notices only to refer to other sections of the CFR.

The Office proposes to amend § 2.6(a)(8) to delete “assignee” and substitute “registrant.” This makes it clear that any registrant can request a new certificate of registration, upon payment of the required fee.

The Office proposes to revise § 2.25 to provide that documents filed in the Office by the applicant or registrant become part of the official record and will not be returned or removed. The rule currently provides only for applications, and the Office proposes to revise it to encompass all documents filed in connection with an application or registration. This is consistent with current practice. See TMEP section 404. The Office proposes to make an exception for documents ordered to be filed under seal pursuant to a protective order issued by a court or by the TTAB.

The Office proposes to remove § 2.26, which provides that a drawing from an abandoned application may be transferred to and used in a new application, if the file has not been destroyed. This rule is no longer in use and is deemed unnecessary.

The Office proposes to amend § 2.32(a)(6) to delete the word “and” after the semicolon, and to amend § 2.32(a)(7) to change a period to a semicolon.

The Office proposes to amend § 2.86(a)(2) to delete the period and substitute a semicolon, followed by the word “and” (“; and”).

The Office proposes to amend § 2.146(c) to add a provision that a petition to the Director be signed by the petitioner, someone with legal authority to bind the petitioner (e.g., a corporate officer or general partner of a partnership), or a qualified practitioner. The proposed rule further provides that when facts are to be proved on petition, the petitioner must submit proof in the form of affidavits or declarations in accordance with § 2.20, signed by someone with firsthand knowledge of the facts to be proved. This is consistent with TMEP sections 1705.03 and 1705.07.

The Office proposes to amend § 2.195(b) to delete the phrase, “In addition to being mailed,” because it is unnecessary.

The Office proposes to amend § 2.195(e) to clarify the procedures for filing a petition to the Director to consider correspondence filed on the date of attempted filing by Express Mail during a postal service interruption or emergency within the meaning of 35 U.S.C. 21(a). Proposed § 2.195(e)(1) provides that a person who attempted to file correspondence by Express Mail, but was unable to deposit the correspondence with the United States Postal Service due to the interruption or emergency, may petition the Director to consider the correspondence to have been filed on the date of attempted filing. Proposed § 2.195(e)(2) sets forth the requirements for the petition. Proposed § 2.195(e)(3) notes that this procedure does not apply to correspondence that is excluded from the Express Mail procedure pursuant to § 2.198(a)(1). This is consistent with current practice.

Executive Order 12866: This rule has been determined not to be significant for purposes of Executive Order 12866.

Administrative Procedure Act: This rule merely involves rules of agency practice and procedure within the meaning of 5 U.S.C. 553(b)(A). Therefore, this rule may be adopted without prior notice and opportunity for public comment under 5 U.S.C. 553(b) and (c), or thirty-day advance publication under 5 U.S.C. 553(d). However, the Office has chosen to seek public comment before implementing the rule.

Regulatory Flexibility Act: As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 (or any other law), neither a regulatory flexibility analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is required. See 5 U.S.C. 603.

The proposed rules clarify certain requirements for trademark applications and other trademark-related documents, modernize the language of the rules, and make some other miscellaneous procedural changes. In large part, the proposed rule changes are intended to codify existing practice. Although the proposed rules may affect any trademark applicant or registrant, because they would merely codify the existing practice of the Office, or concern relatively minor procedural matters, the changes proposed in this notice will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates: The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments or the private sector.

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

Paperwork Reduction Act: This proposed rule involves information collection requirements which are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The collections of information in this proposed rule have been reviewed and previously approved by OMB under control numbers 0651-0009, 0651-0050, 0651-0051, 0651-0054, 0651-0055, and 0651-0056.

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 proposed rule would not affect the information collection requirements associated with the information collections under the OMB control numbers listed above. The changes in this notice are limited to amending the rules of practice to simplify and clarify the requirements for amendments to applications and registrations, reword and reorganize the rules for clarity purposes, and codify current practices and procedures.

Interested persons are requested to send comments regarding these information collections, including suggestions for reduction of this burden to: (1) The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and (2) Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451 (Attn: Mary Hannon).

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 given in the preamble and under the authority contained in 15 U.S.C. 1123 and 35 U.S.C. 2, as amended, the Office proposes to amend parts 2, 3, 6, and 7 of title 37 as follows:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

Administrative Procedure Act Statement. This matter is not a rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C. 553. FEMA publishes flood elevation determinations for notice and comment; however, they are governed by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and do not fall under the APA.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

A. Background

This rule proposes to amend the Federal Acquisition Regulation (FAR) to require that certain contracts contain a clause requiring that the contractor and certain subcontractors utilize the E-Verify System to verify employment eligibility of all newly hired employees of the contractor or subcontractor and all employees directly engaged in the performance of work in the United States under those contracts.

The Government awards numerous contracts each fiscal year worth hundreds of billions of dollars. At the same time, one of the Government's primary responsibilities is the enforcement of the immigration laws of the United States. It is appropriate to ensure that Government contractors and subcontractors abide by the immigration laws that the Government enforces. In 1986, Congress amended the Immigration and Nationality Act (INA) to prohibit the hiring or continued employment of aliens, knowing that the aliens are unauthorized to work in the United States. Public Law 99-603, Title I, § 101(a)(1), 100 Stat. 3360, codified at 8 U.S.C. 1324a(a). Congress also established an employment verification system in 8 U.S.C. 1324a(b), and directed the President to evaluate that system's security and efficacy and implement necessary changes, subject to congressional oversight. 8 U.S.C. 1324a(d). To assist in the development of such changes and additions to the system, Congress also authorized the President to establish demonstration projects designed to strengthen the employment verification system. 8 U.S.C. 1324a(d)(4). In 1992 the Immigration and Naturalization Service (INS) launched the Telephone Verification System (TVS) pilot program—an early form of what is now the E-Verify system—as a demonstration project. 69 Interpreter Releases 702 (June 8, 1992); 515 (Apr. 27, 1992). In 1996, Congress established the Basic Pilot program (now E-Verify) as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Public Law No. 104-208, §§ 401-405, 110 Stat. 3009-655—3009-665 (1996) (8 U.S.C. 1324a note). The Basic Pilot statute instructs all departments of the Executive Branch to participate in E-Verify as part of their hiring process. IIRIRA § 402(e)(1).

This rule is authorized by an exercise of the President's authority under the Federal Property and Administrative Services Act of 1949 (FPASA), to “prescribe policies and directives” governing procurement policy “that the President considers necessary to carry out” that Act and that are “consistent” with the Act's aim of “provid[ing] the Federal Government with an economical and efficient” procurement system. 40 U.S.C. 121, 101. The “economy and efficiency” benefits to Federal contracting that flow from ensuring that the Federal Government does not do business with contractors that hire or employ unauthorized aliens were first set forth in Executive Order 12989 (see 61 FR 6091, February 15, 1996). That order, which pre-dated Congress's creation of the Basic Pilot program (now E-Verify), noted that the presence of unauthorized aliens on a contractor's workforce rendered that contractor's workforce less stable and reliable than the workforces of contractors who do not employ unauthorized aliens. The executive order entitled “Economy and Efficiency in Government Procurement Through Compliance with Certain Immigration and Nationality Act Provisions and Use of an Electronic Employment Eligibility Verification System” of June 6, 2008, amends Executive Order 12989 and, together with the Designation by the Secretary of Homeland Security, directs Federal agencies, in light of the recent advances in the reliability, convenience, and accuracy of the E-Verify system, to use this powerful tool to avoid both the general inefficiencies that flow from contracting with employers burdened with unstable workforces as well as the direct costs of disruptions to Federal contract performance that result when unauthorized aliens are found in, and must be subsequently removed from, the Federal contract workforce.

This proposed rule inserts a clause into Federal contracts committing Government contractors to use the United States Citizenship and Immigration Service (USCIS) E-Verify System to verify that all of the contractors' new hires, and all employees (existing and new) directly engaged in the performance of work under Federal contracts, are authorized to work in the United States. The E-Verify System is expected to help contractors avoid employment of unauthorized aliens and will assist Federal agencies to avoid contracting with companies that knowingly hire unauthorized aliens. This enhances the Government's ability to protect national security and ensure compliance with the nation's immigration laws—core aspects of the Government's mission that otherwise could be compromised by the presence of unauthorized aliens in Government facilities or by the employment of unauthorized aliens in the Government's supply chain. It also protects U.S. workers by creating another disincentive for companies to hire unauthorized aliens who may command lower wages.

In summary, the proposed rule—

1. Requires insertion of a clause into Government prime contracts that include work in the United States, other than those that do not exceed the micro-purchase threshold (generally $3,000), or that are for commercially available off-the-shelf (COTS) items or items that would be COTS items but for minor modifications (the rule adopts the statutory definition of COTS).

2. Requires inclusion of the clause in subcontracts over $3,000 for services or for construction.

3. Requires a contractor or subcontractor to enroll in the E-Verify program within 30 days of contract award, begin verifying the employment eligibility of all new employees of the contractor or subcontractor that are hired after enrollment in E-Verify, and continue to use the E-Verify program for the life of the contract.

4. Requires contractors and subcontractors to use E-Verify to confirm the employment eligibility of all existing employees who are directly engaged in the performance of work under the covered contract.

5. Applies to solicitations issued and contracts awarded after the effective date of the final rule in accordance with FAR 1.108(d). Under the final rule, Departments and agencies should, in accordance with FAR 1.108(d)(3), amend existing indefinite-delivery/indefinite-quantity contracts to include the clause for future orders if the remaining period of performance extends at least six months after the effective date of the final rule and the amount of work or number of orders expected under the remaining performance period is substantial.

6. In exceptional circumstances, allows a head of the contracting activity to waive the requirement to include the clause. This authority is not delegable.

The proposed rule applies only to employment in the United States as defined at section 101(a)(38) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. “United States” includes the fifty States and the District of Columbia, Guam, Puerto Rico, and the United States Virgin Islands. It does not currently include the United States territories of American Samoa and the Commonwealth of the Northern Mariana Islands. Under the Consolidated Natural Resources Act of 2008, Federal immigration law will begin to apply—through a phased process—to the Commonwealth of the Northern Mariana Islands starting in mid-2009. At this time, however, these two territories have their own immigration laws and are not covered by the employment verification requirements of INA section 274A, 8 U.S.C. 1324a (see Form I-9). The proposed rule also does not apply to any employment outside the United States, including work on United States embassies or military bases in foreign countries. Finally, the proposed rule does not apply to any employee hired prior to November 6, 1986, as these employees are not subject to employment verification under INA section 274A, 8 U.S.C. 1324a.

The Councils are attempting to balance competing needs in drafting this rule. It was written to apply the requirements in a manner to ensure effective compliance by the contractor community, but it exempts certain prime contracts and subcontracts when the cost of compliance would likely outweigh the benefits, e.g., COTS items. Comments are solicited with regard to how well this balance has been achieved.

The E-Verify program is an internet-based system operated by USCIS, in partnership with the Social Security Administration (SSA), and requirements for obtaining access to E-Verify and procedures for the use of E-Verify are established by the Department of Homeland Security (DHS), USCIS's parent agency. Before an employer can participate in the E-Verify program, the employer must enter into a Memorandum of Understanding (MOU) with DHS and SSA. This MOU requires employers to agree to abide by current legal hiring procedures and to ensure that no employee will be unfairly discriminated against as a result of the E-Verify program. Violation of the terms of this agreement by the employer is grounds for immediate termination of its participation in the program. Employers participating in E-Verify must still complete an Employment Eligibility Verification Form (Form I-9) for each newly hired employee, as required under current law. Following completion of the Form I-9, the employer must enter the worker's information into the E-Verify website, and that information is then checked against information contained in SSA and USCIS databases.

SSA first verifies that the name, SSN, and date of birth are correct and, if the employee has stated that he or she is a U.S. citizen, confirms whether this is in fact the case through its databases. If the employee is a U.S. citizen, SSA establishes that the employee is employment-eligible. USCIS also verifies through database checks that any non-U.S. citizen employee is in an employment-authorized immigration status.

If the information provided by the worker matches the information in the SSA and USCIS records, no further action will generally be required, and the worker may continue employment. E-Verify procedures require only that the employer record on the I-9 form the verification ID number and result obtained from the E-Verify query, or print a copy of the transaction record and retain it with the I-9 form.

If SSA is unable to verify information presented by the worker, the employer will receive an “SSA Tentative Nonconfirmation” notice. Similarly, if USCIS is unable to verify information presented by the worker, the employer will receive a “DHS Tentative Nonconfirmation” notice. Employers can receive a tentative nonconfirmation notice for a variety of reasons, including inaccurate entry of information into the E-Verify Web site, name changes, or changes in immigration status that are not reflected in the database. If the individual's information does not match the SSA or USCIS records, the employer must provide the employee with a written notice of the fact, called a “Notice to Employee of Tentative Nonconfirmation.” The worker must then indicate on the notice whether he or she contests or does not contest the tentative nonconfirmation, and both the worker and the employer must sign the notice.

If the worker chooses to contest the tentative nonconfirmation, the employer must print a second notice, called a “Referral Letter,” which contains information about resolving the tentative nonconfirmation, as well as the contact information for SSA or USCIS, depending on which agency was the source of the tentative nonconfirmation. The worker then has eight Federal Government work days to visit an SSA office or call USCIS to try to resolve the discrepancy. Under the E-Verify MOU, if the worker contests the tentative nonconfirmation, the employer is prohibited from terminating or otherwise taking adverse action against the worker while he or she awaits a final resolution from the Federal Government agency. If the worker fails to contest the tentative nonconfirmation, or if SSA or USCIS was unable to resolve the discrepancy the employer will receive a notice of final nonconfirmation and the employee may be terminated.

Participation in E-Verify does not exempt the employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees, or from other requirements of applicable regulations or laws; however, the following modified requirements apply by reason of the employer's participation in E-Verify: (1) Identity documents used for verification purposes must have photos; (2) if an employer obtains confirmation of the identity and employment eligibility of an individual in compliance with the terms and conditions of E-Verify, a rebuttable presumption is established that the employer has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act (INA) with respect to the hiring of the individual; (3) the employer must notify DHS if it continues to employ any employee after receiving a final nonconfirmation, and is subject to a civil money penalty between $500 and $1,000 for each failure to notify DHS of continued employment following a final nonconfirmation; (4) if an employer continues to employ an employee after receiving a final nonconfirmation and that employee is subsequently found to be an unauthorized alien, the employer is subject to a rebuttable presumption that it has knowingly employed an unauthorized alien in violation of section 274A(a); and (5) no person or entity participating in E-Verify is civilly or criminally liable under any law for any action taken in good faith based on information provided through the confirmation system.

Further information on registration for and use of E-Verify can be obtained via the internet at http://www.dhs.gov/E-Verify.

This proposed rule differs in one significant respect from the requirements generally applicable to employers participating in E-Verify; that is, current employees of Federal contractors that are assigned to work in the United States on a covered Federal contract, as well as the contractor's new hires in the United States, must be verified under this rule. In the initial contract start-up phase, employees assigned to the contract must be verified within 30 days; thereafter, the proposed rule requires newly hired and newly assigned employees to be verified within 3 days. Requiring employment eligibility confirmation of all workers assigned to a new Government contract is mandated by the June 6, 2008, Executive Order amending Executive Order 12989, is most consistent with the Federal Government's own obligation to use E-Verify when hiring Federal employees, and will most effectively ensure that the Federal Government does not indirectly exploit an illegal labor force.

USCIS is in the process of revising its MOU, program manual, training materials, Web site, and other E-Verify System materials to reflect the duties that Federal contractors will take on when they sign a contract containing the clause promulgated by this proposed rule. Those E-Verify System accommodations will make this proposed FAR amendment and the E-Verify System consistent for Federal contractors, but will not apply to E-Verify users who are not required to comply with the contract clause promulgated by this rule. Federal contractors' compliance with that revised MOU will be a performance requirement under the terms of the Federal contract or subcontract, and the contractor must consent to the release of information relating to compliance with its verification responsibilities to contracting officers or other officials authorized to review the Employer's compliance with Federal contracting requirements. A revised MOU reflecting the program participation requirements for Federal contractors has been placed in the docket for this rulemaking and will be available online at http://www.regulations.gov.

This is a significant regulatory action and, therefore, was subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is a major rule under 5 U.S.C. 804.

A Regulatory Impact Analysis that more thoroughly explains the assumptions used to estimate the cost of this proposed rule is available in the docket. For access to the docket to read background documents or comments received, go to http://www.regulations.gov. A summary of the cost and benefits of the proposed rule follows:

The Councils expect this rule to impact nearly every small entity in the Federal contractor base. However, the direct cost this rule imposes does not appear to have a significant economic impact on a substantial number of small entities, within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. An Initial Regulatory Flexibility Analysis has been prepared and the results of the analysis show that the direct cost of this rule on an average cost per contractor basis does not appear to rise to the level of being economically significant; however, the Councils request comments on this finding. The Councils expect this rule to carry certain benefits to employers in that it provides an economical, Web-based method for performing verification of employment eligibility of employees, improving the reliability of the employment verification procedures employers are already required to perform. Federal contractors' participation in E-Verify is also expected to reduce the likelihood that contractors will discover long after the fact that they have hired unauthorized aliens, thereby sparing contractors the cost of terminating and replacing employees not authorized to work under Federal immigration law after resources have been expended on the training of those employees. An Initial Regulatory Flexibility Analysis has been prepared for public comment and is summarized as follows:

The FAR Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the FAR Secretariat. The Councils will consider comments from small entities concerning the affected Subpart FAR 22.18 in accordance with 5 U.S.C. 610. Comments must be submitted separately and should cite 5 U.S.C 601, et seq. (FAR case 2007-013), in correspondence.

The Paperwork Reduction Act (Pub. L. 104-13) applies because the proposed rule contains information collection requirements over and above the burden hours already approved for the E-Verify System. The OMB control number for the currently approved Information Collection Request is 1615-0092. The Privacy Impact Assessments and the System of Records Notice for the E-Verify program may be found at http://www.dhs.gov/xinfoshare/publications/editorial_0511.shtm#4 and at 73 FR 10793. Although the E-Verify System has a currently approved Paperwork Reduction Act clearance, we are seeking an additional approval for this proposed amendment to the FAR because the proposed FAR rule will increase the number of E-Verify users. The OMB control number for the currently approved Information Collection Request is 1615-0092. This additional burden is created by the requirement in this rule to verify employment eligibility of certain current employees in each contractor's existing workforce. Also included in the additional burden estimate is the number of employers and employees that would not have utilized E-Verify but for the issuance of this rule. Accordingly, the Councils will forward a request for approval of a new information collection requirement concerning this burden to the Office of Management and Budget under 44 U.S.C. 3501, et seq. Public comments concerning this request will be invited through a subsequent Federal Register notice.

Annual Reporting Burden: The number of Respondents estimated below is the average number of covered contractors and subcontractors per year for the first three years the rule is in effect. The number of total annual responses is the sum of the MOUs that must be signed by each employer, the number of employer registrations, the number of employees that undergo training, and the average number of E-Verify queries per year for the first three years the rule is in effect. Public reporting burden for this collection of information is estimated to average .40 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

The annual reporting burden is estimated as follows:

Respondents: 177,196.

Responses per respondent: 21.05.

Total annual responses: 3,729,406.

Preparation hours per response: .40 hrs.

Total response burden hours: 1,500,357.

Submit comments, including suggestions for reducing this burden, not later than August 11, 2008 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (VPR), 1800 F Street, NW., Room 4035, Washington, DC 20405.

Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR and will have practical utility; whether the above estimate of the public burden of this collection of information is accurate and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which the burden of the collection of information can be minimized on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

Requester may obtain a copy of the justification from the General Services Administration, FAR Secretariat (VR), Room 4035, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control Number 9000-XXXX in all correspondence.

Government procurement.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 12, 22, and 52 as set forth below:

1. The authority citation for 48 CFR parts 2, 12, 22, and 52 continues to read as follows:

This proposed rule is accessible via the Internet at the Office of the Federal Register's Web site at http://www.access.gpo.gov/su_docs/. Background information and documents are available at the NMFS Office of Science and Technology Web site athttp://www.st.nmfs.noaa.gov/mrii/index.html.

In 2004, NMFS contracted with the National Research Council (NRC) of the National Academy of Sciences to review the current marine recreational fishery survey methods used by NMFS and its partners to monitor fishing effort and catch. NMFS asked the NRC to: (1) assess current survey methods for their suitability in monitoring fishing effort and catch in the shoreline, private boat, and for-hire boat recreational fisheries; (2) assess the adequacy of the methods for providing the quality of information needed to support accurate stock assessments and responsible fisheries management decisions; and (3) make recommendations for possible methodological improvements that would ensure more accurate and precise estimates of recreational effort and catch.

The NRC's Ocean Studies Board formed a 10-member committee to conduct the requested review, held a series of five public meetings in 2005 to gather information about the current survey programs in each region, and published a final report in April 2006 [http://fermat.nap.edu/catalog/11616.html]. The NRC report identified a number of potential problems with the sampling and estimation designs employed in the current surveys and questioned the adequacy of the existing surveys in providing the statistics needed to support accurate stock assessments and appropriate fishery management decisions. The report recommended that current surveys be redesigned to improve their effectiveness, the appropriateness of their sampling procedures, their applicability to various kinds of management decisions, and their usefulness for social and economic analyses. The NRC review deferred to NMFS to develop a process to determine the highest priority changes given the costs and benefits of any specific improvement.

NMFS is proposing the National Saltwater Angler Registry Program (“Registry Program”) to implement the recommendations of the NRC review. Among its findings, the NRC review found that current recreational survey approaches, which rely on random telephone contacts with residents of coastal county households to collect marine recreational fishing effort data, result in significant survey over-coverage since relatively few households include active anglers, and under-coverage since some anglers do not live in coastal counties or they live in coastal counties but do not have landline telephones. The review advised that over-coverage results in severe sampling inefficiency, and that under-coverage may lead to serious bias in the resultant effort estimates since anglers from non-coastal counties are likely to have different effort characteristics than those from coastal counties. To resolve these problems, the NRC Panel recommended the development of and subsequent sampling from a comprehensive national saltwater angler registry. The panel further recommended that the registry be established either by implementing a federal registration requirement or by expanding current state saltwater licenses to include all saltwater anglers.

Partially in response to the NRC Panel's findings and recommendations, Congress passed section 401(g) of the MSA, which requires the Secretary of Commerce to establish a program to improve the quality and accuracy of current estimates of marine recreational fishing catch and effort by January 1, 2009, in a manner that considers and, to the extent feasible, incorporates the NRC Panel's recommendations. As part of the program, section 401(g)(1) of the MSA requires the Secretary to register, and collect identification and contact information for, anglers and for-hire vessels if they fish in the EEZ, for Continental Shelf fishery resources beyond the EEZ or for anadromous species throughout their range, including state waters. Further, the Secretary is to exempt from the federal registration requirement those anglers and vessels that are licensed or registered by a state if the state provides sufficient identification and contact information for use in recreational surveys. The resultant federal Registry must address both the qualifications and procedures for registering anglers and vessels and for exempting qualified states' anglers and vessels from the federal registration requirement.

The program must also recognize and balance two important provisions of the NRC recommendations and the provisions of section 401(g) of the MSA. First, the NRC Panel's scientific advice is clear that a universal registry or license-based list of all saltwater anglers, without exceptions based on exemptions to state or federal registration requirements, is essential. Second, the federal registration requirements of section 401(g) of the MSA apply to saltwater anglers fishing in state waters (territorial sea or internal waters) when they are taking anadromous fish. Therefore, some salt water anglers fishing in state waters would not be required to register under this section, although they may be subject to permitting and other requirements under other sections of the MSA. Accordingly, it is necessary for states and NMFS to work in collaboration to build registries of saltwater anglers that include anglers currently exempted or not covered by state license or registration requirements and that also include anglers who are fishing for non-anadromous marine fish in state waters.

The proposed rule was developed consistent with the foregoing program requirements. It is intended to facilitate the development of a national registry or data base of identification and contact information for marine recreational anglers and for-hire fishing vessels. The registry data will be compiled in a series of regional directories to be used to support surveys of anglers and vessel operators to determine their angling effort and related data, as recommended by the NRC Panel and as required by section 401(g)(1) of the MSA.

The proposed rule would require persons who are angling or spear fishing or in possession of fish or operating a vessel that carries recreational fishing passengers for-hire in the EEZ, or who are angling or spear fishing or operating a vessel that carries recreational fishing passengers for-hire and who are in possession of anadromous species, to register annually with NMFS. The registration requirement would become effective January 1, 2009. Section 401(g) of the MSA provides that the Secretary may not charge a fee for anglers or vessels to register with NMFS until January 1, 2011. The proposed rule would implement a registration fee to be specified at the time of implementation, currently estimated to be in the range of $15 to $25 per year, beginning in calendar year 2011.

Anglers and for-hire vessel operators would be exempt from the requirement to register annually if they held a license issued by, or were registered by, a state which had qualified as an exempted state as described below. Persons who hold a state or federal commercial fishing license or permit, and who are lawfully fishing or in possession of fish pursuant to such license or permit, would not be required to register; however, holders of commercial licenses or permits who are angling or spear fishing recreationally, outside the terms and conditions of the commercial license or permit, would be required to register. Anglers under the age of 16 would be exempt from the mandatory registration requirement, although they could register voluntarily, at no cost. This exception is proposed, in part, due to the practical difficulty of conducting telephone surveys of, and of enforcing a registration requirement for, minors. Furthermore, in most cases, adult anglers reside in households in which minor anglers reside; such adults would need to register and, if contacted by surveys, would be able to provide the angling effort information for minors residing in the same household. Anglers fishing on registered for-hire fishing vessels also would be exempt from the registration requirement.

The fee for registering would be waived for non-commercial fishing by indigenous people, but the requirement to register would not. The proposed fee waiver recognizes that, for many indigenous people, fishing is motivated primarily by a desire to gather food for family or community use and/or for cultural reasons. Although it is necessary to require indigenous fishers to register in order to assure that the registration requirement is enforceable and to ensure complete data collection, it is appropriate to waive the registration fee in consideration of the cultural nature of non-commercial fishing by many indigenous people.

The proposed rule also would establish the procedures and guidelines by which states may be designated as exempted states. A state would apply for designation by submitting a proposal that addresses the requirements as noted below. A Memorandum of Agreement (“MOA”) between NMFS and each state would be executed to establish the terms of designation. States would be eligible to be designated as exempted states in two ways: (1) by submitting state angler and for-hire vessel license holder data to NMFS for inclusion in a national or regional registry data base; or (2) by participating in regional surveys of recreational catch and effort and making the resultant data available to NMFS. The proposed regulations for exempted state designation are designed to assure that the license holder data submitted by states includes all anglers and for-hire vessels necessary to meet survey requirements.

This proposed rule is published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. At this time, NMFS has preliminarily determined that the proposed rule is consistent with the applicable provisions of the Magnuson-Stevens Act and other applicable law.

This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. Public burden for complying with the registration requirement is estimated to average two minutes per individual annual registration and three minutes for each for-hire vessel annual registration. Based on the current estimate of the initial number of potential registrants (see RIR/RFAA discussion below), the analysis estimates the total burden hours for compliance with registration requirements as 67,410 for individuals and 120 for small entities. The associated total labor costs are $1,685,250 for individuals ($0.83 per person) and $3000 for small entities ($ 1.25 per for-hire vessel). The PRA submission also states that, apart from the labor cost associated with submitting the information required to register, there are no other annual reporting and recordkeeping costs associated with the registration requirement.

An individual registrant would provide name, address, telephone number and regions of the country in which they fish. A for-hire vessel registrant would provide owner and operator (if different) name, address, telephone number, vessel name and state registration or U.S. Coast Guard documentation number, and home port or principal operating area.

Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of NMFS, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility and clarity of information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to Gordon Colvin, Office of Science and Technology (see ADDRESSES), and by e-mail to David_Rostker@omb.eop.gov or by fax to (202) 395-7285.

NMFS has determined that implementation of the rule is categorically excluded from the requirement for a NEPA review. The proposed action constitutes a regulation of an administrative and procedural nature and will not result in direct or indirect changes to the human environment.

The Office of Management and Budget has determined the proposed rule to be significant for purposes of Executive Order 12866 (“E.O. 12866”).

The Regulatory Flexibility Act (“RFA”) requires the examination of impacts of proposed and existing rules on small businesses, small organizations, and small governmental jurisdictions. In reviewing the potential impacts of proposed regulations, the agency must either: (1) certify that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities; or (2) prepare an Initial Regulatory Flexibility Analysis. The Small Business Administration (“SBA”) defines a small business engaged in recreational fishing activities as a firm with receipts (gross revenues) of up to $6.5 million.

The objectives and legal basis of this rule can be found in the SUMMARY and SUPPLEMENTARY sections of the proposed rule. There are no reporting or recordkeeping requirements associated with the rule. There are no disproportionate impacts among the impacted universe of vessels or between small and large vessels as defined by the Small Business Administration.

The small entities affected by the proposed rule are fishing vessels that carry passengers for a fee to conduct recreational fishing. These “for-hire” fishing vessels are classified as follows:

Head boats include fishing boats on which fishing space and privileges are provided for a fee. Head boats are generally large, they may carry from 7 passengers up to 150 paying passengers, and anglers usually pay on a per-head basis for the opportunity to fish on them. The vessel is operated by a licensed captain (guide or skipper) and crew.In some areas of the country head boats are called party boats or open boats. These boats are usually not launched until a specified number of anglers have paid and boarded. Anglers on these full or half day trips usually do not know all of the other anglers on the boat. Head boats usually engage predominantly in bottom fishing. The length of head boat trips may vary from a half-day to multiple days.

Charter boats include fishing boats operating under charter for a specific price, time, etc. Charter boats are smaller in size than head boats, they usually carry fewer than 7 paying passengers, and they are usually hired, or “chartered”, by a group of anglers. They are operated by a licensed captain and crew, and the participants are usually part of a pre-formed group. Thus, charters are usually closed parties (all anglers know each other), as opposed to the open status of party boats. A subset of charter boats are also called guide boats, which are small boats fishing inland waters with two to three clients. Charter boats can engage in a full range of fishing techniques, including trolling, bottom fishing, and drift fishing. The length of charter boat trips may vary from a half-day to multiple days.

11,953 for-hire vessels are currently operating nationwide. A detailed description of the number of vessels currently operating, by state of operation, is presented in section 2.2 of the RIR/RFAA.

The small entities that will be required to comply with the rule will be required to register annually by submitting the following information via either a web-based or telephone-based portal: vessel name and home port/principal operating area; vessel's state registration or USCG documentation number; name, address and telephone contact information for owner and operator(s). The registrant will be provided with a registration number and documentation of registration which must be kept available to provide to law enforcement officers upon request. The proposed rule will not include any other reporting or record-keeping requirements.

All for-hire vessels, both head boats and charter boats, will be required to register annually unless they are exempted from the registration requirement under either of two exemption provisions in the proposed rule: (1) the vessel is licensed or registered by an Exempted State, or (2) the vessel holds a NMFS license or permit to engage in for-hire fishing activities in compliance with another applicable regulation. Exempted States will agree to provide complete lists of for-hire vessels and the required identification and contact information to NMFS and will enter into Memoranda of Agreement to formalize the agreements. Since all states except New Jersey currently license for-hire fishing, it is expected that most states will be designated as Exempted States for for-hire fisheries under the proposed rule. In New Jersey, a state which does not issue state commercial permits to individual vessels, the preponderance of for-hire vessels are permitted with NMFS with the State adopting Federal for-hire regulations in their waters. Between the exemptions available to vessels from Exempted States and those remaining that will have another NMFS-issued license or permit, it is expected that very few for-hire vessels will need to comply with the registration requirement under the proposed rule.

It is expected that for-hire vessel information currently collected by most states will be sufficient to fulfill the data collection requirements of the preferred alternative. It is anticipated that most states which currently license for-hire vessels will be granted Exempted State status. Therefore, no additional cost burden or changes in gross revenues is anticipated for for-hire vessels operating in states granted Exempted State status.

To address the likelihood that some vessels will not be exempt from the federal registration requirement proposed by this rule, NMFS conservatively estimated that 20% of for-hire vessels nationwide would not be exempt. This is a very conservative estimate because it is anticipated that only New Jersey, which does not license for-hire vessels, but, based on voluntary registration information, is estimated to currently include approximately 8% of U.S. for-hire vessels, will not be granted Exempted State status.

Therefore, of the 11,953 for-hire vessels operating in the U.S., NMFS estimated that 2,390 vessels will not be exempt from the proposed federal registration requirement. The cost per vessel to comply with this proposed rule is anticipated to range between $15 and $25.

To determine the economic impact of the administrative fee on individual vessels, the for-hire vessels in NY, NJ, MD, DE, and VA were examined. It was estimated that each individual for-hire vessel earned $ 95,700 in revenues based on an angler fee of $41.09 and the assumption that 590 vessels or 1.20 x 491 (the known number of permitted vessels from those states) operated as for-hire vessels. Based on these assumptions the adverse economic impact of a $25 administrative fee would be a reduction in the revenue of the average individual vessel of 0.03 percent. Therefore, NMFS has concluded that implementation of this rule would not have a significant economic impact on a substantial number of small entities.

For the reasons set out in the preamble, NMFS proposes to add subpart P to 50 CFR part 600 to read as follows: