Federal Register / Vol. 72, No. 85 / Thursday, May 3, 2007 / Notices 24623 

not become NRTLs because they were 

owned by a manufacturer. In a recent 

case, a laboratory applied but stopped 

the application process after it better 

understood OSHA’s concerns over its 

relationship with its ownermanufacturer, a manufacturer of 

computer and telecommunications 

hardware products. OSHA has applied 

its policy fairly and its determinations 

regarding ETI’s independence are 

consistent with the Agency’s previous 

positions. 

ETI also argues in its rebuttal 

statement that a draft fax it received 

from OSHA staff constituted an 

‘‘interpretation’’ of the independence 

requirement that is at odds with OSHA’s 

current interpretation. In December 

2001, OSHA staff sent a draft fax to ETI 

that detailed some preliminary findings 

and conclusions about ETI’s lack of 

independence. These preliminary 

findings in many ways mirrored 

OSHA’s other correspondence with ETI. 

It expressed concerns about the vast 

nature of Emerson’s operations, the 

Board of Directors of ETI, and the fact 

that neither ETI nor OSHA could 

effectively monitor the corporate notesting policy (see Exhibit 17–11). It also 

listed some conditions that ETI could 

consider as it was evaluating the 

independence criteria and its 

relationship with Emerson. 

The draft fax is not a statement of 

Agency policy (Miller v. Youakim, 440 

U.S. 125, 146 n.25 (1979)). It was 

intended as a discussion piece between 

OSHA and ETI. It is not signed by an 

Agency official and is clearly marked 

draft on each page. ETI knew at the time 

that the document was simply a draft 

that was sent out to solicit comment 

from ETI. This is supported by the fact 

that ETI made no attempts to implement 

any of the suggestions included in the 

draft. In fact, ETI never formally 

responded to the draft. 

OSHA’s official statements regarding 

ETI’s ownership situation have been 

entirely consistent. Starting with the 

first correspondence related to the 

independence issue, OSHA has 

consistently stated that ETI was not 

independent because it was wholly 

owned by Emerson: 

<bullet≤ See Exhibit 16–5: ‘‘Under our 

policy on independence, Emerson 

would be a ‘supplier’ of products that 

must be certified by an NRTL. As 

described in our policy, since Emerson 

owns ETI and two of its officers are 

Directors of ETI, ETI would fail to meet 

the requirement for complete 

independence of an NRTL, under 

paragraph (b)(3) of 29 CFR 1910.7.’’ 

<bullet≤ See Exhibit 16–6: ‘‘After 

consulting with attorneys in the 

Department of Labor’s Office of the 

Solicitor, we believe that the 

information in your May 17 letter does 

in fact confirm that ETI does not meet 

our independence requirement.’’ 

<bullet≤ See Exhibit 16–8: ‘‘The 

independence requirement in § 1910.7 

is intended to prevent relationships that 

could unduly influence and thereby 

compromise the NRTL’s testing and 

certification process. OSHA considers 

an NRTL not to be independent if it is 

owned by a manufacturer of the type of 

products for which OSHA requires 

certification by NRTLs.’’ 

<bullet≤ See Exhibit 16–9: ‘‘The 

fundamental reason for denial is ETI’s 

ownership by Emerson Electrical 

Corporation (Emerson), a manufacturer 

of a wide variety of equipment that 

OSHA requires to be approved (i.e., 

tested and certified) by NRTLs. As such, 

this violates the NRTL requirement for 

independence set forth under 29 CFR 

1910.7(b).’’ 

As these statements demonstrate, 

OSHA has consistently informed ETI 

that its ownership by Emerson violated 

the independence requirement. OSHA 

has provided ETI several opportunities 

to rebut the presumption of pressures. 

ETI simply has not met its burden of 

demonstrating by clear and convincing 

evidence that pressures do not and will 

not exist that could compromise the 

results of its testing and certification 

processes. 

Request for Renewal of Recognition 

ETI seeks renewal of its recognition 

for the site that OSHA has previously 

recognized. ETI also seeks renewal of its 

recognition for testing and certification 

of products for demonstration of 

conformance to the following two test 

standards, which OSHA has previously 

recognized for ETI. Each of these 

standards is an ‘‘appropriate test 

standard,’’ within the meaning of 29 

CFR 1910.7(c): UL 508 Industrial 

Control Equipment; UL 508C Power 

Conversion Equipment. The 

designations and titles of these test 

standards were current at the time of the 

preparation of this notice. 

Preliminary Finding 

Following a review of the application 

file and other pertinent information, and 

for the reasons summarized above, 

OSHA has determined that ETI has not 

met all the requirements for renewal of 

its recognition. OSHA staff, therefore, 

recommended to the Assistant Secretary 

that the application be denied. 

The Assistant Secretary has made a 

preliminary finding that ETI fails to 

meet all the requirements prescribed by 

29 CFR 1910.7 for the renewal of its 

recognition, and, therefore, OSHA 

proposes to deny renewal of that 

recognition. This preliminary negative 

finding does not constitute OSHA’s final 

decision on the application for renewal. 

As stated above, OSHA welcomes 

public comments, in sufficient detail, as 

to whether ETI has met the 

requirements of 29 CFR 1910.7 for the 

renewal of its recognition as a NRTL. 

Your comments should consist of 

pertinent written documents and 

exhibits. Should you need more time to 

comment, you must request it in 

writing, including reasons for the 

request. OSHA must receive your 

written request for extension no later 

than the last date for comments. OSHA 

will limit any extension to 30 days, 

unless the requester justifies a longer 

period. We may deny a request for 

extension if it is not adequately 

justified. You may obtain or review 

copies of the ETI request, the on-site 

review report, ETI’s statement of 

reasons, other pertinent documents, and 

all submitted comments, as received, by 

contacting the Docket Office, Room 

N2625, Occupational Safety and Health 

Administration, U.S. Department of 

Labor, at the above address. Docket No. 

NRTL2–94 contains all materials in the 

record concerning the ETI application. 

The NRTL Program staff will review 

all timely comments and, after 

resolution of issues raised by these 

comments, will recommend whether to 

grant the ETI renewal request. The 

Assistant Secretary will make the final 

decision on granting the renewal and, in 

making this decision, may undertake 

other proceedings that are prescribed in 

Appendix A to 29 CFR Section 1910.7. 

OSHA will publish a public notice of 

this final decision in the Federal 

Register. 

Signed at Washington, DC, this 23rd day of 

April, 2007. 

Edwin G. Foulke, Jr., 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

[FR Doc. E7–8455 Filed 5–2–07; 8:45 am] 

BILLING CODE 4510–26–P 

LIBRARY OF CONGRESS 

Copyright Office 

[Docket No. 2007–4] 

Notice of Intent to Audit 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Public notice. 

SUMMARY: The Copyright Office of the 

Library of Congress is announcing 

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24624 Federal Register / Vol. 72, No. 85 / Thursday, May 3, 2007 / Notices 

1An ‘‘eligible nonsubscription transmission’’ is a 

noninteractive digital audio transmission which, as 

the name implies, does not require a subscription 

for receiving the transmission. The transmission 

must also be made as a part of a service that 

provides audio programming consisting in whole or 

in part of performances of sound recordings the 

primary purpose of which is to provide audio or 

entertainment programming, but not to sell, 

advertise, or promote particular goods or services. 

See 17 U.S.C. 114(j)(6). 

2A copy of the new Notice of Intent to Audit 

Microsoft is posted on the Copyright Office Web 

site at http://www.copyright.gov/carp/microsoft– 

notice2.pdf 

receipt of a notice of intent to audit 

2005 statements of account concerning 

the eligible nonsubscription 

transmissions of sound recordings made 

by Microsoft Corporation (‘‘Microsoft’’) 

under statutory licenses. 

FOR FURTHER INFORMATION CONTACT: 

Tanya M. Sandros, Acting General 

Counsel, P.O. Box 70977, Southwest 

Station, Washington, DC 20024–0977. 

Telephone: (202) 707–8380. Telefax: 

(202) 252–3423. 

SUPPLEMENTARY INFORMATION: Section 

106(6) of the Copyright Act, title 17 of 

the United States Code, gives the 

copyright owner of a sound recording 

the right to perform a sound recording 

publicly by means of a digital audio 

transmission, subject to certain 

limitations. Among these limitations are 

certain exemptions and a statutory 

license which allows for the public 

performance of sound recordings as part 

of ‘‘eligible nonsubscription 

transmissions.’’1 17 U.S.C. 114. A music 

service that operates under the section 

114 statutory license may also make any 

necessary ephemeral reproductions to 

facilitate the digital transmission of the 

sound recording under a second license 

set forth in section 112(e) of the 

Copyright Act. Use of these licenses 

requires that services make payments of 

royalty fees to and file reports of sound 

recording performances with 

SoundExchange. SoundExchange is a 

collecting rights entity that was 

designated by the Librarian of Congress 

to collect statements of account and 

royalty fee payments from services and 

distribute the royalty fees to copyright 

owners and performers entitled to 

receive such royalties under sections 

112(e) and 114(g) following a 

proceeding before a Copyright 

Arbitration Royalty Panel (‘‘CARP’’)— 

the entity responsible for setting rates 

and terms for use of the section 112 and 

section 114 licenses prior to the passage 

of the Copyright Royalty and 

Distribution Reform Act of 2004 

(‘‘CRDRA’’’), Pub. L. No. 108–419, 118 

Stat. 2341 (2004). See 69 FR 5695 

(February 6, 2004). 

This Act, which the President signed 

into law on November 30, 2004, and 

which became effective on May 31, 

2005, amends the Copyright Act, title 17 

of the United States Code, by phasing 

out the CARP system and replacing it 

with three permanent Copyright Royalty 

Judges (‘‘CRJs’’). Consequently, the CRJs 

carry out the functions heretofore 

performed by the CARPs, including the 

adjustment of rates and terms for certain 

statutory licenses such as the section 

114 and 112 licenses. However, section 

6(b)(3) of the Act states in pertinent 

part: 

[t]he rates and terms in effect under section 

114(f)(2) or 112(e) . . . on December 30, 

2004, for new subscription services [and] 

eligible nonsubscription services . . . 

shall remain in effect until the later of 

the first applicable effective date for 

successor terms and rates . . . or such 

later date as the parties may agree or the 

Copyright Royalty Judges may establish. 

Successor rates and terms for the 

licenses are scheduled to be published 

in the Federal Register on Tuesday, 

May 1, 2007. However, these successor 

rates and terms carry an effective date 

beginning on January 1, 2006. 

Accordingly, the terms of the section 

114 and 112 licenses as previously 

constituted are still in effect for any 

request to audit 2005 statements of 

account. 

One of the previously constituted 

terms, set forth in § 262.6 of title 37 of 

the Code of Federal Regulations, states 

that SoundExchange, as the Designated 

Agent, may conduct a single audit of a 

Licensee for the purpose of verifying 

their royalty payments. As a preliminary 

matter, the Designated Agent is required 

to submit a notice of its intent to audit 

a Licensee with the Copyright Office 

and serve this notice on the service to 

be audited. 37 CFR 262.6(c). 

On December 23, 2005, 

SoundExchange filed with the 

Copyright Office a notice of intent to 

audit Microsoft for the years 2002, 2003, 

and 2004. See 72 FR 624 (January 5, 

2006). Subsequently, on March 29, 

2007, SoundExchange filed a second 

notice of intent to audit Microsoft,2

pursuant to § 262.6(c), notifying the 

Copyright Office of its intent to expand 

its current audit to cover 2005. This 

notice of intent to audit was received by 

the Copyright Office on April 2, 2007. 

Section 262.6(c) requires the Copyright 

Office to publish a notice in the Federal 

Register within thirty days of receipt of 

the filing announcing the Designated 

Agent’s intent to conduct an audit. 

In accordance with this regulation, 

the Office is publishing today’s notice to 

fulfill this requirement with respect to 

the notice of intent to audit filed by 

SoundExchange on March 29, 2007. 

Dated: April 30, 2007 

Tanya M. Sandros, 

Acting General Counsel. 

[FR Doc. E7–8515 Filed 5–2–07; 8:45 am] 

BILLING CODE 1410–30–S 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

[Notice: (07–033)] 

Notice of Information Collection 

AGENCY: National Aeronautics and 

Space Administration (NASA). 

ACTION: Notice of information collection. 

SUMMARY: The National Aeronautics and 

Space Administration, as part of its 

continuing effort to reduce paperwork 

and respondent burden, invites the 

general public and other Federal 

agencies to take this opportunity to 

comment on proposed and/or 

continuing information collections, as 

required by the Paperwork Reduction 

Act of 1995 (Pub. L. 104–13, 44 U.S.C. 

3506(c)(2)(A)). 

DATES: All comments should be 

submitted within 60 calendar days from 

the date of this publication. 

ADDRESSES: All comments should be 

addressed to Mr. Walter Kit, National 

Aeronautics and Space Administration, 

Washington, DC 20546–0001. 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information or 

copies of the information collection 

instrument(s) and instructions should 

be directed to Mr. Walter Kit, NASA 

PRA Officer, NASA Headquarters, 300 E 

Street, SW., JE0000, Washington, DC 

20546, (202) 358–1350, Walter.Kit1@nasa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Abstract 

The NASA Explorer Schools (NES) 

seeks a clearance to collect data from 

educators to determine eligibility and 

selection of schools to participate in 

their three year project. To lessen the 

impact on educators who will complete 

the project application, the application 

period must be open during the times 

when they are less likely to be needed 

in the classroom (e.g., summer break) 

and can obtain any required school 

board approvals. 

II. Method of Collection 

NASA will utilize a Web-base on-line 

form to collect this information. 

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