COURTHOUSE NEWS SERVICE

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COURTHOUSE NEWS SERVICE

  1. 1. COURTHOUSE NEWS SERVICE Federal Regulation Brief Sept. 12, 2008 b COMMERCE Today’s Brief Includes (Aug 28-Sept 3): Commerce (DOC) – Proposed regulations included Consumer Product Safety (CPSC) - Proposed regulations only Federal Trade Commission (FTC) Postal Regulatory Commission (PRC) - Proposed regulations only (Aug 26) Postal Service (USPS) - Proposed regulations only (Aug 27) Securities and Exchange (SEC) – No newly published regulations this week U.S. Trade Representative (USTR) – No newly published regulations this week COMMERCE (DOC) NEWLY PUBLISHED REGULATIONS INDUSTRY AND SECURITY BUREAU (BIS) Addition of Kosovo in Export Administration Regulations: Addition of Kosovo in the Export Administration Regulations, Federal Register, September 2, 2008, Volume 73, Number 170, Rules and Regulations, Page 51217, 15 CFR Parts 738 and 740, Docket No. 080717846-8879-01, RIN 0694-AE34, Final rule. [TEXT] [PDF] (This final rule is effective September 2, 2008.) SUMMARY: The Bureau of Industry and Security (BIS) amends the Export Administration Regulations to establish export licensing requirements for Kosovo. DETAILS: This final rule adds Kosovo to the Export Administration Regulations (EAR) for export licensing purposes. The United States recognized Kosovo as a sovereign state February 18, 2008. Specifically, this rule amends the EAR as follows: 1. In Supplement No. 1 to Part 738 of the EAR, the Commerce Country Chart is amended by adding “Kosovo.” 2. In Supplement No. 1 to Part 740 of the EAR (Country Groups), Country Group B is amended by adding “Kosovo.” 3. Section 740.7(d)(1) of the EAR (Computer Tier 3 destinations) is amended by adding “Kosovo.” NATIONAL MARINE FISHERIES SERVICE (NMFS) AND NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA) Atlantic highly migratory species, Atlantic bluefin tuna fisheries: Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries, Federal Register, August 29, 2008, Volume 73, Number 169, Rules and Regulations, Page 50885, 50 CFR Part 635, RIN 0648-XJ69, Temporary rule, inseason retention limit adjustment. [TEXT] [PDF]
  2. 2. (This temporary rule, inseason retention limit adjustment, is effective September 1, 2008 through December 31, 2008.) SUMMARY: The National Marine Fisheries Service (NMFS) adjusts the Atlantic tunas General category daily Atlantic bluefin tuna retention limit for the September, October-November, and December time periods of the 2008 fishing year, based on consideration of the determination criteria regarding inseason adjustments. RETENTION LIMIT ADJUSTMENT: NMFS increased the retention limit from the default limits effective September 1, 2008, through December 31, 2008 to three large medium or giant blue fin tuna, measuring 73 inches (185 cm) CFL or greater, per vessel per day/trip. This retention limit is in effect in all areas, except for the Gulf of Mexico, and applies to vessel permitted in the General category as well as to those HMS Charter/Headboat permitted vessels fishing commercially for blue fin tuna. Fisheries of the exclusive economic zone off Alaska, Atka mackerel in the Bering Sea and Aleutian Islands management area: Fisheries of the Exclusive Economic Zone Off Alaska; Atka Mackerel in the Bering Sea and Aleutian Islands Management Area, Federal Register, September 2, 2008, Volume 73, Number 170, Rules and Regulations, Page 51242, 50 CFR Part 679, Docket No. 071106673-8011-02, RIN 0648-XK14, Temporary rule, closures and openings. [TEXT] [PDF] (The effective dates for these closures and openings are provided in Table 1 below under the DETAILS section of this temporary rule.) SUMMARY: The National Marine Fisheries Service (NMFS) prohibits directed fishing for Atka mackerel in the Eastern Aleutian District and the Bering Sea subarea of the Bering Sea and Aleutian Islands management area (BSAI) by vessels participating in the BSAI trawl limited access fishery. This temporary rule is to prevent exceeding the 2008 total allowable catch of Atka mackerel in these areas by vessels participating in the BSAI trawl limited access fishery. The NMFS also announces the opening and closing dates of the first and second directed fisheries within the harvest limit area (HLA) in areas 542 and 543. These closure and opening dates are to conduct directed fishing for Atka mackerel in the HLA in areas 542 and 543. DETAILS: 50 CFR Part 679 closure and opening dates are shown in the following table: Table 1. Effective dates and times, Alaska local time Action Area Effective Date Effective Date From To Prohibiting Atka Eastern Aleutian 1200 hrs. 1200 hrs. mackerel by vessels District and the September 1, November 1, participating in the Bering Sea 2008 2008 BSAI trawl limited subarea access fishery
  3. 3. Opening the first 542 and 543 1200 hrs. 1200 hrs. and second September 3, September 13, directed fisheries in 2008 2008 the HLA for the Amendment 80 cooperative 542 and 543 1200 hrs. 1200 hrs. September 15, September 25, 2008 2008 Opening the first 542 and 543 1200 hrs. 1200 hrs. and second September 3, September 11, directed 2008 2008 fisheries in the HLA for vessels participating in 542 and 543 1200 hrs. 1200 hrs. the Amendment 80 September 13, September 21, limited access 2008 2008 sector Opening the directed 542 1200 hrs. 1200 hrs. fishery September 3, September 13, in the HLA for 2008 2008 vessels participating in the BSAI trawl limited access sector Fisheries of the exclusive economic zone off Alaska, improved retention/improved utilization: Fisheries of the Exclusive Economic Zone Off Alaska; Improved Retention/Improved Utilization, Federal Register, August 29, 2008, Volume 73, Number 169, Rules and Regulations, Page 50888, 50 CFR Part 679, RIN 0648-AR72, Final rule, agency decision. [TEXT] [PDF] (This final rule, agency decision, is effective August 25, 2008.) SUMMARY: The National Marine Fisheries Service (NMFS) approves Amendment 72 to the Fishery Management Plan (FMP) for Groundfish of the Gulf of Alaska, which states that the regional fishery management council (council) annually will review information on the discard of shallow-water flatfish in Gulf of Alaska groundfish fisheries. After review of this annual information, the council may recommend revisions to retention and utilization requirements if the discard rate for shallow- water flatfish falls above or below a specified threshold. This final rule, agency decision, is to support the council's initiatives to monitor and reduce bycatch in the Gulf of Alaska groundfish fisheries. Fisheries of the exclusive economic zone off Alaska, Pacific cod by catcher vessels 60 ft length overall (LOA) and longer using hook-and-line gear in the Bering Sea and Aleutian Islands management area: Fisheries of the
  4. 4. Exclusive Economic Zone Off Alaska; Pacific Cod by Catcher Vessels 60 ft (18.3 m) LOA and Longer Using Hook-and-Line Gear in the Bering Sea and Aleutian Islands Management Area, Federal Register, September 2, 2008, Volume 73, Number 170, Rules and Regulations, Page 51243, 50 CFR Part 679, Docket No. 071106673-8011-02, RIN 0648-XK13, Temporary rule, closure. [TEXT] [PDF] (This temporary rule, closure, is effective 1200 hrs. Alaska local time (A.l.t.) August 28, 2008, through 2400 hrs. A.l.t. December 31, 2008.) SUMMARY: The National Marine Fisheries Service (NMFS) prohibits directed fishing for Pacific cod by catcher vessels greater than or equal to 60 ft (18.3 meters (m)) length overall (LOA) using hook-and-line gear in the Bering Sea and Aleutian Islands management area (BSAI). This temporary rule, closure, is to prevent exceeding the 2008 Pacific cod total allowable catch allocated to catcher vessels 60 ft (18.3 m) LOA using hook-and-line gear in the BSAI. Fisheries of the exclusive economic zone off Alaska, pollock in Statistical Area 630 in the Gulf of Alaska: Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 630 in the Gulf of Alaska, Federal Register, August 29, 2008, Volume 73, Number 169, Rules and Regulations, Page 50887, 50 CFR Part 679, Docket No. 071106671-8010-02, RIN 0648-XK11, Temporary rule, closure. [TEXT] [PDF] (This temporary rule, closure, is effective 1200 hrs. Alaska local time (A.l.t.) August 26, 2008, through 1200 hrs. A.l.t. October 1, 2008.) SUMMARY: The National Marine Fisheries Service (NMFS) prohibits directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska (GOA). This temporary rule, closure, is to prevent exceeding the C season allowance of the 2008 total allowable catch of pollock for Statistical Area 630 in the GOA. Taking of marine mammals incidental to commercial fishing operations, Atlantic Large Whale Take Reduction Plan regulations: Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations, Federal Register, September 2, 2008, Volume 73, Number 170, Rules and Regulations, Page 51228, 50 CFR Part 229, Docket No. 080509647-81084-02, RIN 0648-AW84, Final rule. [TEXT] [PDF] (This final rule is effective October 2, 2008.) SUMMARY: The National Marine Fisheries Service (NMFS) amends the regulations implementing the Atlantic Large Whale Take Reduction Plan (ALWTRP), and delays the effective date of a broad-based gear modification and removes one of the gear- related definitions required in the recent amendment to the ALWTRP. Specifically, the NMFS delays the broad-based sinking groundline requirement for trap/pot fishermen along the Atlantic coast for an additional six months, from October 5, 2008, to April 5, 2009. Additionally, this final rule deletes the term “neutrally buoyant line” and its associated definition from the ALWTRP regulations. REASONS FOR THE DELAY: The NMFS determined that this delay is necessary because the current implementation deadline falls during the most profitable fishing period; requiring lobstermen to remove and reconfigure gear would cause a
  5. 5. substantial loss in financial revenue. NMFS also found that there might not be enough alternative rigging and sinking line to allow the entire fleet to be compliant by the deadline. EFFECT ON WHALES: The NMFS determined that delay of the compliance deadline will delay the benefit to large whales, of switching to sinking ground lines, but will not itself damage any mammals listed under the Endangered Species Act. The NMFS recognized the critical importance of removing fishing gear from entangled whales but noted it is faced with decreasing budgets and implementing other pressing priorities. PROPOSED REGULATIONS NATIONAL MARINE FISHERIES SERVICE (NMFS) AND NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA) Endangered and threatened species, proposed endangered status for the Gulf of Maine distinct population segment of Atlantic salmon: Endangered and Threatened Species; Proposed Endangered Status for the Gulf of Maine Distinct Population Segment of Atlantic Salmon, Federal Register, September 3, 2008, Volume 73, Number 171, Proposed Rules, Page 51415, DEPARTMENT OF INTERIOR, United States Fish and Wildlife Service, 50 CFR Part 17, DEPARTMENT OF COMMERCE, National Oceanic and Atmospheric Administration, 50 CFR Part 224, Docket No. 0808191116-81126-01, RIN 0648-XJ93, Proposed rule, 12-month petition finding, request for comments. [TEXT] [PDF] (Any comments on this proposal must be received by December 2, 2008. Any public hearing requests must be received by November 17, 2008.) SUMMARY: The National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service (USFWS) have determined that naturally spawned and conservation hatchery populations of Atlantic salmon within the range of the Gulf of Maine (GOM) distinct population segment (DPS), including those that already were listed in November 2000, constitute a new GOM DPS and hence a “species” for listing as endangered or threatened consideration under the Endangered Species Act (ESA). This also constitutes a 12-month finding on a petition to list Atlantic salmon in the Kennebec River as endangered. The NMFS and the USFWS will propose to designate critical habitat for the GOM DPS in a later Federal Register notice. SUBJECTS: Public comment is sought on the following subjects; 1. The effects of conservation hatchery supplementation in reducing the risk of extinction of the GOM DPS. Do the high numbers of fish stocked through the conservation hatchery program reduce the risk of extinction for the GOM DPS, given that the numbers of naturally-reared spawning adults in the GOM DPS are extremely low (less than 150)? 2. Information concerning the viability of and/or threats to Atlantic salmon in the GOM DPS; and 3. Efforts to protect Atlantic salmon in the GOM DPS.
  6. 6. Fisheries in the western Pacific, pelagic fisheries, squid jig fisheries: Fisheries in the Western Pacific; Pelagic Fisheries; Squid Jig Fisheries, Federal Register, August 28, 2008, Volume 73, Number 168, Proposed Rules, Page 50751, 50 CFR Part 665, Docket No. 0612242967-7394-01, RIN 0648-AS71, Proposed rule, request for comments. [TEXT] [PDF] (Any comments on this proposed rule must be received by October 14, 2008.) SUMMARY: The National Marine Fisheries Service (NMFS) proposes a rule which would include three species of pelagic squid under federal management, and establish permitting and reporting requirements for squid jig fishing vessels over 50 feet (15.4 meters) in length. These vessels also would be required to carry federal observers if requested by the NMFS. This proposed rule is intended to improve monitoring and management of U.S. domestic pelagic squid fisheries in the western Pacific. HIGHLIGHTS: The proposed rule would do the following; 1. Add three pelagic squid species to the pelagic management unit (neon flyingsquid, Ommastrephes bartramii, diamondback squid, Thysanoteuthis rhombus, and purple flying squid, Sthenoteuthis oualaniensis); and 2. Require operators of U.S. vessels longer than 50 feet (15.4 meters) that fish for pelagic squid in waters of the U.S. Exclusive Economic Zone (EEZ) of the western Pacific to: a. Obtain federal permits; b. Carry federal observers if requested by NMFS; and c. Report any western Pacific pelagic squid catch and effort either in federal squid logbooks or existing local reporting systems. --------------- --------------- --------------- CONSUMER PRODUCT SAFETY (CPSC) PROPOSED REGULATIONS Exemption from classification as banned hazardous substance, proposed exemption for Boston Billow Nursing Pillow and substantially similar nursing pillows: Exemption From Classification as Banned Hazardous Substance; Proposed Exemption for Boston Billow Nursing Pillow and Substantially Similar Nursing Pillows, Federal Register, September 3, 2008, Volume 73, Number 171, Proposed Rules, Page 51384, 16 CFR Part 1500, Notice of proposed rulemaking. [TEXT] [PDF] (Any written comments in response to this notice must be received by October 3, 2008.)
  7. 7. SUMMARY: The Consumer Product Safety Commission (CPSC or Commission) proposes to exempt the Boston Billow Nursing Pillow and substantially similar nursing pillows from the Commission's regulations banning infant cushions/pillows in the Commission's regulations at 16 CFR 1500.18(a)(16)(i). Infant cushions/pillows, termination of rulemaking, other than with respect to Boston Billow Nursing Pillow and substantially similar nursing pillows: Infant Cushions/Pillows; Termination of Rulemaking Other Than With Respect to Boston Billow Nursing Pillow and Substantially Similar Nursing Pillows, Federal Register, September 3, 2008, Volume 73, Number 171, Proposed Rules, Page 51386, 16 CFR Part 1500, Advance notice of proposed rulemaking, partial withdrawal. [TEXT] [PDF] (This partial termination of the advance notice of proposed rulemaking published in the Federal Register September 27, 2006 (71 FR 56418) is effective September 3, 2008.) SUMMARY: The Consumer Product Safety Commission (CPSC or Commission) issued an advance notice of proposed rulemaking (ANPR) September 27, 2006 to assess whether a rulemaking was necessary to address any unreasonable risk of injury or death which may be associated with the proliferation of infant cushions/pillows and pillow-like products intended for infants in the marketplace, including the Boston Billow Nursing Pillow. 71 FR 56418. After review of the comments, incident reports and other available information, the Commission has determined there is insufficient data or product information on infant cushions/pillows or pillow-like products, other than the Boston Billow Nursing Pillow and substantially similar nursing pillows, to proceed with further rulemaking on those products at this time. Based on these findings, the Commission terminates the infant cushion/pillow rulemaking other than with respect to the Boston Billow Nursing Pillow and substantially similar nursing pillows. --------------- --------------- --------------- FEDERAL TRADE COMMISSION (FTC) NEWLY PUBLISHED REGULATIONS Telemarketing sales rule: Telemarketing Sales Rule (TSR), Federal Register, August 29, 2008, Volume 73, Number 169, Rules and Regulations, Page 51163, 16 CFR Part 310, RIN 3084-AA98, Final Rule Amendments. [TEXT] [PDF] (These final rule amendments are effective October 1, 2008. Compliance with 16 CFR 310.4(b)(4)(i) is required October 1, 2008. Compliance with 16 CFR 310.4(b)(1) (v) is required December 1, 2008, except that compliance with 16 CFR 310.4(b)(1) (v)(A) is not required until September 1, 2009.) SUMMARY: The Federal Trade Commission (FTC or Commission) amends the Telemarketing Sales Rule (TSR). The first amendment makes explicit a prohibition in the TSR on telemarketing calls that deliver prerecorded messages without a consumer's express written agreement to receive such calls. This amendment also requires that all prerecorded telemarketing calls provide specified opt-out mechanisms so that consumers can opt out of future calls. This amendment is
  8. 8. because the reasonable consumer would consider prerecorded telemarketing messages to be coercive or abusive of such consumer's right to privacy. The second amendment modifies the method for measuring the maximum call abandonment rate prescribed by the TSR's call abandonment safe harbor. This new method permits sellers and telemarketers to calculate call abandonment rates for a live calling campaign over a thirty-day period, or any part thereof. This amendment is because the current “per day” standard effectively precludes the use of predictive dialers with small calling lists. IMPLEMENTATION DATES: The prerecorded call amendment (PCS) will be implemented in two stages: 1. December 1, 2008: a. All prerecorded calls must provide an automated interactive keypress or voice-activated opt-out mechanism, this applies to calls delivering prerecorded messages, answered by the recipient, or an answering machine or voicemail service. b. The Commission will enforce prohibitions on calls to recipients who have an established business relationship (EBR) with the telemarketer or seller unless such calls conform to the opt-out mechanism. 2. September 1, 2009: a. All calls that deliver prerecorded messages must have the prior express written agreement of the recipient to receive such calls. b. Calls that deliver prerecorded messages will no longer be allowed based solely on the existence of an established business relationship, and calls that deliver prerecorded messages may only be made to consumers who have given their prior express written agreement. In addition, October 1, 2008, safe harbor provisions for terminated or abandoned calls will change from 3 percent of calls a person could answer in a day to 3 percent of calls a person could answer over successive 30 day periods. This allows organizations using smaller call lists to avoid exhausting their list in a short period of time. ALL PERMITED PRERECORDED MESSAGES: This amendment will require that all permitted calls delivering prerecorded messages must: 1. Allow the consumer's telephone to ring for at least 15 seconds or 4 rings before an unanswered call is disconnected; 2. Begin the prerecorded message within 2 seconds of the completed greeting of the person called; 3. Disclose promptly at the outset of the call the means by which the person called may assert a Do Not Call request at any time during the message; 4. If the call could be answered in person, promptly make an automated interactive voice and/or keypress-activated opt-out mechanism available at all times during the message that automatically adds the telephone number called to the seller's entity-specific Do Not Call list and that thereafter immediately terminates the call;
  9. 9. 5. If the call could be answered by an answering machine or voicemail service, promptly provide a toll-free telephone number that also allows the person called to connect directly to an automated voice and/or keypress-activated opt-out mechanism that is accessible at any time after receipt of the message; and 6. Comply with all other requirements of the TSR and applicable federal and state laws. CALL TERMINATIONS: Sellers and telemarketers use predictive dialers which dial several numbers simultaneously to reduce the amount of time their agents wait between call connections. As a result calls will be initiated that agents will not be able to take and these calls are automatically terminated if an agent does not connect to the call within a certain amount of time. This practice will be allowed only if the seller or telemarketer abides by the following “safe harbor” conditions: 1. Abandons no more than 3 percent of all calls answered by a person (as opposed to an answering machine); 2. Allows the telephone to ring for 15 seconds or four rings; 3. Plays a prerecorded message stating the name and telephone number of the seller on whose behalf the call was placed whenever a sales representative is unavailable within two seconds of the completed greeting of the person answering the call; and 4. Maintains records documenting compliance. Because consumers who receive a prerecorded message would never be connected to a sales representative, a telemarketing campaign that consists solely of prerecorded messages would not meet the safe harbor requirements and are therefore prohibited. 5. In addition, the final amendment will change the existing safe harbor limitation on the percentage of calls which may be terminated or abandoned from a “per day” percentage to no more than 3 percent of all calls answered by a person, measured over the duration of a single calling campaign, if less than 30 days, or separately over each successive 30-day period or portion of a 30 day period the campaign continues. This change in allowable abandonment begins October 1, 2008. EXEMPTIONS: 1. Healthcare-related prerecorded message calls subject to HIPAA, include calls by medical providers and their third-party telemarketers, but also calls by DME suppliers and by Medicare Part D providers and their third-party telemarketers. 2. Charitable fundraising calls made by for-profit telemarketers to members of, or previous donors to, a non-profit charitable organization on whose behalf the calls are placed will not have to obtain prior consent, but will be required to provide an automated keypress or voice-activated opt-out mechanism and are prohibited from calling consumers who use the mechanism to opt out.
  10. 10. ---------------- ---------------- ---------------- POSTAL REGULATORY COMMISSION (PRC) PROPOSED REGULATIONS Administrative practice and procedure, confidential business information, postal service: Administrative Practice and Procedure, Confidential Business Information, Postal Service, Federal Register, August 26, 2008, Volume 73, Number 166, Proposed Rule, Page 50531, Part V, 39 CFR 3007, Docket No. RM2008-1, Order No. 96, Proposed rule. [TEXT] [PDF] (Any initial comments are due September 25, 2008; ant reply comments are due October 10, 2008.) SUMMARY: The Postal Regulatory Commission (PRC or Commission) proposes rules on the treatment of non-public material submitted by the Postal Service. Issuance of this proposal would allow interested parties to comment on the Commission's approach to implementing a new statutory requirement. HIGHLIGHTS: NON-PUBLIC INFORMATION: The proposed rule would allow information given to the Commission from the Postal Service to be free from public-disclosure: 1. To make information non-public the Postal Service must file a specific statement including the following details: a. Why the material is non-public, including a specific statement as to whether the Postal Service considers the materials commercially sensitive, or otherwise to be exempt from disclosure and to qualify for a particular evidentiary privilege recognized by federal civil courts; b. A detailed description of the materials claimed to be non-public in a manner that, without revealing the materials at issue, allows thorough evaluation of the basis for the claim that they are non-public; c. In cases of allegations of commercial harm, particular identification of the nature and extent of commercial harm alleged and the likelihood of such harm; 1. At least one specific hypothetical, illustrative example of each alleged harm; d. The extent of protection from public disclosure deemed to be necessary by the Postal Service; e. The length of time the Postal Service deems necessary for the information or material to be protected from public disclosure with justification; and f. Any other factors or reasons relevant to support the application.
  11. 11. ACCESS TO NON-PUBLIC DOCUMENTS: Access to non-public material is permitted for Commissioners and Commission employees with a need to know to do their jobs. No officer or employee of the Commission may: 1. Use such materials for purposes other than the purposes for which it is supplied; or 2. Permit anyone who is not an employee of the Commission to have access to any such materials. 3. Before granting access to material subject to protective conditions to contractors or experts hired by the Commission, its authorized representative, or the public representative to assist in their official duties, they must file a notice of access for contractors or experts, and the Postal Service has 2 days to object. 4. The Commission or its representative may issue a notice of preliminary determination concerning the degree of protection, if any, to be accorded to the materials claimed to be non-public by the Postal Service. a. Responsive pleadings (by any interested person, including the Postal Service) are due within 7 days after such a notice is filed, unless a longer period as specified in the notice of preliminary determination; b. Following the filing of responsive pleadings, the Commission, or its representative, will issue an order determining the appropriate degree of access, if any, to be accorded to the materials claimed to be non-public by the Postal Service; and c. Unless the Commission or its representative allows, no reply to a responsive pleading or any other further responsive document shall be filed. REQUEST FOR ACCESS TO NON-PUBLIC MATERIAL: Any person may file a motion requesting access to the materials claimed to be non-public by the Postal Service. The motion must include: 1. A detailed statement and rationale for why access should be granted, making specific reference to the reasons the material was made non- public. 2. Access to non-public materials may be granted if applicants agree to standard Commission protective conditions as published on the Commission's Web site. Such person shall attach an executed copy of the standard protective conditions to its motion; and 3. If the person agrees to abide by standard Commission protective conditions, answers are due within 2 days. a. If the person does not agree to standard protective conditions, answers are due within 7 days after a filing. 4. Following the filing of responsive pleadings, the Commission or its representative will issue an order detailing the appropriate degree of
  12. 12. access, if any, and the appropriate degree of protection, if any, to be given the materials. 5. Unless the Commission or its representative otherwise allows, no reply to an answer or any other further responsive document shall be filed. 6. Access to protected material is limited in duration as determined by the Commission. DETERMINATION OF ACCESS: The Commission will balance potential harm to the Postal Service against the need for transparency in government and the right of the public to have access to sensitive material. The Commission will also consider if disclosure or non-disclosure violate any specific rules of evidence. LIMITATIONS ON ACCESS TO NON-PUBLIC MATERIAL: The Commission reserves the right to determine the duration, medium and totality of access to any material under protective conditions. It may disclose all, part or none of specific documents and material as well as limitations on how information gained from protected material may be used. REMOVAL OF PROTECTIVE CONDITIONS: After reviewing materials subject to protective conditions, a person may file a motion requesting that non-public materials should be publicly disclosed: 1. Request must provide specific and detailed rationale why the material should be made public. 2. The motion, itself must not disclose any of the information or materials subject to protective conditions. If it is necessary to use the protected information or to argue for public disclosure, the argument utilizing the non-public materials shall be filed under seal. 3. Answers are due within 7 days after such a filing. 4. Following responsive pleadings, if any, the Commission or its representative will issue an order determining whether the non-public materials or any part will be made public. 5. No reply to an answer or any other further responsive document need be filed. EXPIRATION OF PROTECTIVE CONDITIONS: Protective conditions given to non-public materials filed by the Postal Service expire 10 years after filing unless the Commission or its representative enters an order extending or shortening the protective conditions. 1. The Commission or its representative may extend or shorten the expiration at in its own discretion or by a motion of the Postal Service. 2. Interested persons will be provided the opportunity to submit written comments and reply comments before the retention period is changed.
  13. 13. CONTINUED EFFECTIVENESS OF PROTECTIVE CONDITIONS: The Postal Service will be notified within 2 days if a subpoena or other order is issued to the Commission for protected material so that the Postal Service can seek an injunction or other relief to prevent disclosure. If disclosure to a court or other agency is required: 1. Protected information disclosed to a reviewing court or agency must, as closely as possible protect the information from public disclosure. 2. The protective conditions ordered by the Commission or its representative shall remain in effect throughout any subsequent review unless overridden by the action of the reviewing court. SANCTIONS FOR VIOLATIONS OF PROTECTIVE ORDER: The Commission may sanction any person who violates the conditions of its protective orders by: 1. Dismissing the proceeding in whole or in part; 2. Ruling by default against the person who violated the protective order; and 3. The Postal Service may take any action it can under the law against the individual who violated the protective order. ---------------- ---------------- ---------------- POSTAL SERVICE (USPS) PROPOSED REGULATIONS New automation requirements for detached addressed labels: New Automation Requirements for Detached Address Labels, Federal Register, August 27, 2008, Volume 73, Number 167, Proposed Rules, Page 50584, 39 CFR Part 111, Proposed rule. [TEXT] [PDF] (The Postal Service must receive any comments on or before September 26, 2008.) SUMMARY: The Postal Service (USPS) proposes revisions to the Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) for detached address labels (DALs). To increase efficiency and reduce handling costs, the USPS proposes that the DALs accompanying saturation mailings of Periodicals or Standard Mail flats must be automation-compatible and have a correct delivery point POSTNETTM barcode or Intelligent Mail barcode with an 11-digit routing code. This proposal would not apply to the DALs with simplified addresses. To be consistent with the current requirement for return addresses, the USPS proposes to add DALs to DMM 602.1.5.3, Required Use of Return Address. SPECIFICATIONS: The proposed rule would require the following:
  14. 14. 1. Saturation mailing means a mailing sent to at least 75 percent of the total addresses on a carrier route or 90 percent of the residential addresses on a route, whichever is less. Deliveries are not required to every carrier route of a delivery unit. 2. Label Construction: Each DAL must be made of paper or cardboard stock that is not folded, perforated, or creased, and that meets these measurements: a. At least 0.007 inch thick except. b. If more than 4.25 inches high or more than 6 inches in length, must be at least 0.009 inch thick. c. Must have an aspect ratio (length divided by height) between 1.3 to 2.5, inclusive. 3. Addressing: a. The address for each item must be placed on a DAL, parallel to the longest dimension of the DAL, and must not appear on the item it accompanies. b. The DAL must contain the recipient's delivery address and the mailer's return address. A ZIP+4 code or 5-digit ZIP code is required unless a simplified address format is used. c. DALs that accompany saturation mailings of Periodicals or Standard Mail flats must include a correct delivery point POSTNET barcode or Intelligent Mail barcode with an 11-digit routing code (see 708.4) except when using a simplified address. ---------------- ---------------- ----------------

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