[Federal Register Volume 72, Number 17 (Friday, January 26, 2007)]
[Rules and Regulations]
[Pages 3730-3734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-335]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Parts 24 and 111

[USCBP-2006-0035; CBP Dec. 07-01]
RIN 1505-AB62


Fees for Certain Services

AGENCIES: Customs and Border Protection, Department of Homeland 
Security; Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document amends the rules dealing with customs financial 
and accounting procedures by revising the fees charged for certain 
customs inspectional services under section 13031 of the Consolidated 
Omnibus Budget Reconciliation Act of 1985, as amended, and incorporates 
two technical corrections to the existing fee chart.

DATES: Final rule effective April 1, 2007.

FOR FURTHER INFORMATION CONTACT: For information concerning user fee 
policy and rates, contact Mr. Jerry Petty, Director, Cost Management 
Division, 1300 Pennsylvania Avenue NW., Room 4.5A, Washington, DC 
20229. Telephone: (202) 344-1317.

SUPPLEMENTARY INFORMATION:

Background

    CBP collects fees to pay for the costs incurred in providing 
customs services in connection with certain activities under the 
authority of section 13031 of the Consolidated Omnibus Budget 
Reconciliation Act of 1985 (COBRA), as amended, codified at section 19 
U.S.C. 58c.
    On October 22, 2004, the President signed the American Jobs 
Creation Act of 2004 (Pub. L. 108-357). Section 892 of the American 
Jobs Creation Act amended 19 U.S.C. 58c to renew the fees provided 
under COBRA, which would have otherwise expired March 1, 2005, and to 
allow the Secretary of the Treasury to increase such fees by an amount 
not to exceed 10 percent in the period beginning fiscal year 2006 
through the period for which fees are authorized by law. Regulations 
concerning user fees, among other customs revenue functions, are 
promulgated under the authority of the Secretary of the Treasury 
pursuant to Treasury Department Order No. 100-16. (See Appendix to 19 
CFR Part 0).
    On April 24, 2006, CBP published a notice of proposed rulemaking in 
the Federal Register (71 FR 20922) proposing to amend the regulations 
in accordance with the current statutory provisions by increasing the 
fees for: (1) Customs services provided in connection with the arrival 
of certain commercial vessels, commercial trucks, railroad cars, 
private aircraft and private vessels, passengers aboard commercial 
aircraft and commercial vessels, and barges or other bulk carrier 
arrivals, (2) each item of dutiable mail for which a customs officer 
prepares documentation, and (3) annual customs brokers permits. The 
comment period ended on May 24, 2006.

Discussion of Comments

    A total of six commenters responded to the solicitation of comments 
on the notice of proposed rulemaking. These comments were received from 
the recreational boating associations, industry and travel agent 
products services, carrier/vessel concerns, air transport associations, 
and other members of the general traveling and importing public. The 
comments are discussed below.
    Comment: One commenter supported the proposed fee increases as 
appropriate to reflect the costs incurred by the agency for services 
provided. The commenter also suggested raising the annual maximum fees 
and each of the

[[Page 3731]]

annual fee caps by the maximum 10% permitted by law.
    CBP response: The COBRA, as amended (Pub. L. 108-357, Section 892), 
does not authorize an increase in annual fee caps. Therefore, the 
suggestion to raise the annual maximum fees and each of the annual fee 
caps involves legislative policy issues. In the absence of further 
legislative changes, CBP is bound by the current statutory provisions 
which do not provide the legal basis to support such regulatory changes 
suggested by the commenter.
    Comment: One commenter suggested that CBP establish an on-line ACE 
(Automated Commercial Environment) carrier account capable of tracking 
among other things all CBP fees and tonnage taxes as well as penalties 
issued by CBP and the United States Coast Guard to a vessel. The 
commenter also suggested that the ACE account record should be capable 
of displaying accumulated fees charged to each vessel regardless of 
which SCAC (Standard Carrier Alpha Code) and carrier bond were 
associated with those charges.
    CBP response: This comment relates to issues that are beyond the 
scope of the proposed rulemaking.
    Comment: An association representing private vessel owners stated 
its opposition to the increase in the annual decal fee for private 
vessels from $25.00 to $27.50, on the basis that it is inherently 
unfair. The commenter stated that while the annual decal fee currently 
applies to vessels 30 feet in length or greater, CBP must expend an 
equal amount of time and expense on all vessels crossing the border, 
not just those 30 feet in length or greater. The commenter suggested 
that if CBP retains the annual decal fee of $25.00, but removes the 
specific exemption for private pleasure vessels of less than 30 feet in 
length, that this action would generate far more revenue for CBP than 
raising the annual decal fee only for vessels 30 feet in length or 
greater to $27.50.
    CBP response: The specific exemption for private pleasure vessels 
of less than 30 feet in length not carrying goods required to be 
declared was included in 19 CFR 24.22(e), when it was promulgated 
because CBP incurs no processing costs in clearing private pleasure 
vessels of less than 30 feet in length not carrying goods required to 
be declared. Pursuant to the amended COBRA (Pub. L. 108-357, section 
892), and in relevant part, fees may be charged in amounts that are 
reasonably related to the costs of providing customs services. CBP is 
not authorized to collect a fee because the agency would like to 
generate more revenue. Accordingly, we cannot implement the commenter's 
suggested course of action.
    Comment: Two commenters stated that the final rule should specify 
the effective date of the user fee increase applicable to commercial 
airline passengers. One commenter suggested the effective date should 
be no earlier than 60 to 90 days after the final rule is published, and 
two commenters requested sufficient time to allow the industry to 
adjust their systems to collect the increased fee. One commenter urged 
that the regulations be amended to make clear and precise that the 
proper amount of the user fee to be collected from a passenger shall be 
the amount of the fee in effect at the time that a ticket is issued. 
One commenter stated that the increased fee should apply only to 
tickets issued on and after the effective date, so that carriers do not 
have to collect an additional fifty cents for tickets already issued.
    CBP response: We have specified that the final rule's effective 
date will be more than 60 days after the date it is published to permit 
industry to adjust their systems to collect the increased fee amounts.
    In response to the commenter's concern about the proper amount of 
the user fee to be collected, the statute sets forth the general rule 
that the fee shall be collected from the passenger by the person who 
issues a transportation document or ticket and that such collection 
shall take place when the document or ticket is issued. The collection 
procedures in the regulations at Sec.  24.22(g)(4)(ii), state, in 
relevant part, that the collection of the fees shall take place when a 
through ticket or travel document is issued.
    Given this statutory and regulatory specificity and clarity, 
amending the regulations as this commenter suggests is not necessary. 
The increased fee shall apply prospectively, that is, only to tickets 
issued on and after the effective date of the fee increase. For 
example, if a ticket has been issued prior to the effective date of the 
increased fee rates, and the flight does not take place until after the 
effective date of the increased fee rates, CBP is not authorized by law 
to retroactively collect the fifty cents from the carrier. As such, the 
date that the ticket is issued is the relevant event to which the 
effective date provision applies.
    Comment: One commenter stated that the proposed rule to increase 
the customs user fee paid by international passengers arriving by 
commercial aircraft from $5.00 to $5.50 did not suggest that these 
passengers would actually experience a more efficient and pleasant 
clearance process upon arrival in the United States. The commenter 
suggested that the number of CBP officers at U.S. airports must be 
increased to meet the demands of increasing international traffic and 
prevent passengers from waiting in long lines in the inspection 
facilities.
    CBP response: In FY 2005 approximately 73% of the total collections 
in the COBRA user fee account came from international air passengers. 
These passengers stand to benefit from the additional revenue 
collected. CBP estimates that the additional revenue will support the 
following central priorities of increased staffing of no less than 200 
new CBP Officer positions, and the funding of overtime pay which will 
allow for more targeting, enforcement, special operations, and 
backfilling, where necessary.
    More officers on more shifts would allow CBP to fully match staff-
to-workload and address any workload movement quickly, thereby meeting 
CBP's processing goals as well as providing better service to 
passengers.
    Comment: One commenter noted that the Secretary of the Treasury is 
required by statute to apply the funds generated by the customs user 
fees to cover specific costs. The commenter stated that the statute 
allows the funds to be used for the salaries of full-time and part-time 
CBP officers only after five other costs, such as overtime compensation 
and premium pay, have been met. The commenter stated nothing in the 
proposed rule gives any information about how the user fee funds are 
allocated among the various options and how they interrelate, e.g., 
could overtime compensation be decreased in order to hire additional 
full-time or part-time CBP officers at airports.
    CBP response: The statute specifically stipulates the order of 
reimbursements from the user fees collected for costs incurred. First, 
the Secretary of the Treasury shall directly reimburse from the fees 
collected the amount paid for the costs incurred by the Secretary in: 
Paying overtime compensation, premium pay, and agency contributions to 
the Civil Service Retirement and Disability Fund; providing all 
preclearance services for which the recipients of such services are not 
required to reimburse the Secretary of the Treasury; and paying foreign 
language proficiency awards. To the extent funds remain available, 
reimbursements for costs incurred in providing salaries for full-time 
and part-time inspectional personnel and equipment that enhance customs 
services for those persons or entities

[[Page 3732]]

that are required to pay fees under paragraphs (1) through (8) of 
subsection (a) of 19 U.S.C. 58c are distributed on a basis 
proportionate to the fees collected under subsection (a)(1) through 
(a)(8) of 19 U.S.C. 58c. To the extent funds remain available, 
reimbursements are made for costs incurred in providing salaries for up 
to 50 full-time equivalent inspectional positions to provide 
preclearance services. See 19 U.S.C. 58c(f)(3)(A)(i)-(iii). This is the 
allocation authorized by the statute.
    Fees collected under subsection (a) of 19 U.S.C. 58c, with two 
exceptions, shall be deposited as offsetting receipts into the Customs 
User Fee Account. Section 13031(f) of the Consolidated Omnibus Budget 
Reconciliation Act of 1985 (19 U.S.C. 58c(f)) was amended by section 
892 of Pub. L. 108-357 to specify that, except as otherwise provided in 
the subsection, all funds in the Customs User Fee Account shall be 
available to pay the costs incurred by CBP in conducting customs 
revenue functions as defined in section 415 of the Homeland Security 
Act of 2002 (other than functions performed by the Office of 
International Affairs referred to in section 415(8) of that Act), and 
for automation (including the Automation Commercial Environment 
computer system), and for no other purpose. Paragraph (f)(2) of 19 
U.S.C. 58c also states that so long as there is a surplus of funds in 
the Customs User Fee Account, the Secretary of the Treasury may not 
reduce personnel staffing levels for providing commercial clearance and 
preclearance services.
    Comment: One commenter stated it was difficult to determine whether 
air passengers paying the proposed increases in customs user fees will 
derive any benefits or whether the proposed increases were justified 
because the proposed rule does not provide the types of costs included 
in the chart showing the fiscal year 2004 obligations, and does not 
account for savings from the consolidation of certain agricultural, 
customs, and immigration inspection functions into CBP.
    CBP response: The customs user fees are authorized by statute. In 
Public Law 108-357, the Congress authorized the Secretary of the 
Treasury to charge fees in amounts that are reasonably related to the 
costs of providing customs services in connection with the activity or 
item for which the fee is charged, except that in no case may the fee 
charged exceed by more than 10 percent the amount otherwise prescribed. 
The amounts of the proposed fees are reasonably related to the costs of 
providing customs services.
    The types of costs associated with providing customs services 
include salaries and benefits, overtime, rent, supplies and equipment, 
training, travel, utilities, and overhead. The increased fees will 
support more CBP officer positions at airports and new technology and 
equipment. As a result, air passengers will benefit from enhanced and 
timely passenger facilitation.
    Regarding the question of whether the proposed increases account 
for savings from the consolidation of the immigration, customs and 
agricultural functions in aircraft passenger processing, a CBP officer 
accounts for time and costs spent performing these services separately 
according to work activity and function. The inspectional services 
provided and the associated costs are identified as legacy Customs, 
legacy Immigration, and legacy Agriculture functions, depending on 
which legacy organization performed each function.
    While certain components of the legacy agencies have been combined 
to form CBP, the statutory and regulatory authorities for those 
agencies and associated functions have not been consolidated. 
Therefore, all user fees are collected in distinct accounts (Customs 
User Fee Account, Immigration User Fee Account, Land Border Inspection 
Fee Account, etc.) and are only used to cover costs based on function 
and authorized by their respective legislation. User fee program costs 
are also segregated from all other costs.
    Comment: Two commenters stated that the immigration, customs, and 
agriculture user fees should be consolidated into a single user fee for 
CBP inspection services provided to air passengers. The commenters 
stated that consolidation of the three inspectional fees would provide 
for greater efficiency. One commenter stated that consolidation of the 
user fees would result in more streamlined and transparent accounting, 
and would enable the agency to look at the cost of an air passenger 
inspection in relation to what an air passenger pays in user fees.
    CBP response: While certain components of the legacy agencies have 
been combined to form CBP, the statutory and regulatory authorities for 
these agencies and their associated functions remain unchanged. The 
legacy Customs user fee authority resides with the Secretary of the 
Treasury. The legacy INS user fee authority resides with the Attorney 
General. The legacy APHIS user fee authority resides with the Secretary 
of Agriculture. Presently, CBP has no authority to consolidate user 
fees. In the administration and collection of user fees, CBP is bound 
by current statutory law and must capture user fee costs based on 
function, that is, agriculture, customs, and immigration. CBP receives 
only a portion of the total user fees from the immigration and 
agriculture user fee accounts. Since CBP lacks the necessary authority 
to modify the immigration and agriculture user fees, a consolidated 
average cost of an inspection is neither appropriate nor possible at 
this time. However, CBP recognizes the benefits of consolidation, 
including streamlining the collection process and improving the 
management of the user fees. CBP is looking at options to improve the 
structuring of fees.
    Comment: One commenter stated that aviation security is a matter of 
national security, a Federal Government responsibility that should be 
funded accordingly, and not by increasing user fees.
    CBP response: The user fees are for the customs inspection and 
processing of passengers as authorized by the COBRA statute and the 
authority to increase the fees is specifically provided in law. 
Moreover, most aviation security inspection is performed outside of the 
context of these user fees.
    Comment: One commenter stated that the airline industry faces a 
disproportionate and ever increasing tax burden. The commenter stated 
that implementation of this proposal would clearly worsen this 
inequitable situation and further stultify an airline's ability to 
serve the traveling and shipping public.
    CBP response: While CBP understands the concerns of the airline 
industry, the authority to increase inspection fees was specifically 
provided in law two years ago, and this increase is consistent with 
that statute.
    Comment: One commenter stated that the statement in the notice of 
proposed rulemaking regarding the minimal impact on business from the 
increase in user fees since user fees come from individual travelers, 
demonstrates a basic misunderstanding of the realities of contemporary 
airline economics. The commenter stated that the intense competition in 
the airline industry forces carriers to absorb these taxes and fees. 
The commenter stated that it is the airline, and ultimately its 
employees and shareholders, that principally bear the burden of 
increased fees.
    CBP response: CBP notes that under the statute, entities issuing a 
document or ticket are authorized to collect the customs fee from an 
individual at the time the document or ticket is issued.

[[Page 3733]]

This regulation does not change the method for collecting that fee, nor 
does this rule establish a new class of fees; it is only increasing the 
current fee collected by a maximum of 10 percent.
    Comment: One commenter stated that it has repeatedly requested an 
analysis of the actual average cost of an inspection for airline 
passengers since the consolidation of the three border inspection 
agencies, Immigration and Naturalization Service (INS), U.S. Customs 
Service (Customs), and the Animal and Plant Health Inspection Service 
(APHIS) into CBP. The commenter stated that among the justifications 
for the consolidation were greater efficiency, enhanced cost savings, 
and a more coordinated approach to the way in which inspection user 
fees were levied. The commenter stated that the proposed rule provides 
no analytical information on the cost of an inspection. The commenter 
concluded that no fee increase should be implemented absent the cost 
information and an opportunity to comment in response.
    CBP response: The current fees charged and collected for the 
provision of customs services in connection with the arrival of 
passengers aboard a commercial vessel or commercial aircraft are set by 
statute at 19 U.S.C. 58c. Public Law 108-357 authorizes the Secretary 
of the Treasury to charge fees in amounts that are reasonably related 
to the costs of providing customs services in connection with the 
activity or item for which the fee is charged, except that in no case 
may the fee charged exceed by more than 10 percent the amount otherwise 
authorized. CBP has proposed to raise the customs user fees for related 
customs inspectional services based on costs and as authorized by the 
statute. CBP has analyzed the costs of providing customs services and 
the fee collections for these corresponding customs services, and has 
published the collections received and obligations incurred in Fiscal 
Year 2004, in the Federal Register (71 FR 20922) on April 24, 2006.
    Comment: One commenter stated that the collection of a $1.75 fee 
from commercial vessel passengers (to be raised by 10 percent in the 
proposed rule to $1.93) for the exact same inspection that airline 
passengers experience, results in fee collections from airline 
passengers that subsidize the inspections of cruise ship passengers. 
The commenter stated that this inequity needed to be rectified.
    CBP response: The current fees charged and collected for the 
provision of customs services in connection with the arrival of 
passengers aboard a commercial vessel or commercial aircraft are set by 
statute at 19 U.S.C. 58c. In fiscal year 2006, and in each succeeding 
fiscal year for which fees are authorized, Public Law 108-357 
authorizes the Secretary of the Treasury to charge fees in amounts that 
are reasonably related to the costs of providing customs services in 
connection with the activity or item for which the fee is charged, 
except that in no case may the fee charged exceed by more than 10 
percent the amount otherwise authorized. As the respective fees are 
established by statute, this comment is beyond the scope of this 
rulemaking.

Conclusion of Comment Analysis

    Based upon the analysis of the comments as discussed above, CBP has 
decided to adopt the proposed rule published on April 24, 2006, without 
change.

Additional Changes to the Regulations

    In addition to the changes of the fee amounts in the regulatory 
text of Parts 24 and 111, as proposed in the proposed rulemaking 
published on April 24, 2006, the final regulations incorporate two 
technical corrections to the fee chart at 19 CFR 24.22(g)(2). The fee 
chart was intended as a tool to help readers understand the application 
of the fee structure explained in the regulatory text at 19 CFR 
24.22(g)(1). However, in two locations, the fee chart did not 
accurately reflect the regulatory text.
    The fee chart is being corrected to reflect the regulatory text at 
19 CFR 24.22(g)(1)(i)(A) and (B). Paragraph (g)(1)(i)(A) provides for 
the collection of a fee for services provided in connection with the 
arrival of passengers aboard commercial aircraft from Canada, Mexico, 
any territories and possessions of the United States, and any adjacent 
islands (``Specified Location'' (SL)), when the journey of the arriving 
passenger originates in a place outside the United States other than an 
SL. The chart is accordingly amended to state that a fee is assessed in 
such a situation. The chart is also amended to reflect the language of 
paragraph (g)(1)(i)(B) that a fee is assessed when the journey of the 
arriving passenger from an SL originates in the United States and 
includes travel to a country other than to an SL.

The Regulatory Flexibility Act

    This rule generally affects individuals and large commercial 
carriers. The increase in fees is 10 percent over the amounts currently 
paid by users of the customs services for which each fee is charged. 
Accordingly, CBP certifies that this final rule will not have a 
significant impact on a substantial number of small entities because 
the majority of fees will come from individual travelers into the 
United States. Therefore, it is not subject to the analysis provisions 
of the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.). 
The American Jobs Creation Act specifically provides that the Secretary 
of the Treasury shall charge fees that are reasonably related to these 
activities.

Executive Order 12866

    This rule does not meet the criteria for a ``significant regulatory 
action'' as specified in E.O. 12866. Accordingly, a regulatory impact 
analysis is not required.

Signing Authority

    This document is being issued in accordance with Sec.  0.1(a) of 
Chapter I of Title 19, Code of Federal Regulations (19 CFR 0.1) 
pertaining to the exercise of authority to approve regulations in 19 
CFR chapter I.

List of Subjects

19 CFR Part 24

    Accounting, Claims, Customs duties and inspection, Fees, Financial 
and accounting procedures, Imports, Taxes, User fees.

19 CFR Part 111

    Administrative practice and procedure, Brokers, Customs duties and 
inspection, Imports, Licensing.

Amendments to the Regulations

0
For the reasons set forth above, parts 24 and 111 of the Customs and 
Border Protection Regulations (19 CFR parts 24 and 111) are amended as 
follows:

PART 24--CUSTOMS FINANCIAL AND ACCOUNTING PROCEDURE

0
1. The authority citation for part 24 continues to read in part as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General 
Note 3(i), Harmonized Tariff Schedule of the United States), 1505, 
1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 9701; Public Law 107-
296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).
* * * * *

0
2. Amend Sec.  24.22 as follows:
0
a. In paragraph (b)(1)(i), the figure ``$397'' is removed and, in its 
place, the figure ``$437'' is added.
0
b. In paragraph (b)(2)(i), the figure ``$100'' is removed and, in its 
place, the figure ``$110'' is added.
0
c. In paragraph (c)(1), the figure ``$5'' is removed and, in its place, 
the figure ``$5.50'' is added.

[[Page 3734]]

0
d. In paragraph (d)(1), the figure ``$7.50'' is removed and, in its 
place, the figure ``$8.25'' is added.
0
e. In paragraph (e)(1), the figure ``$25'' is removed and, in its 
place, the figure ``$27.50'' is added.
0
f. In paragraph (e)(2), the figure ``$25'' is removed and, in its 
place, the figure ``$27.50'' is added.
0
g. In paragraph (f), the figure ``$5'' is removed and, in its place, 
the figure ``$5.50'' is added.
0
h. In paragraph (g)(1)(i), the figure ``$5'' is removed and, in its 
place, the figure ``$5.50'' is added.
0
i. In paragraph (g)(1)(ii), the figure ``$1.75'' is removed and, in its 
place, the figure ``$1.93'' is added.
0
j. In paragraph (g)(2), the table is revised to read as set forth 
below.
0
k. In paragraph (g)(5)(v), the figure ``$5'' is removed and, in its 
place, the figure ``$5.50'' is added; and, the figure ``$1.75'' is 
removed and, in its place, the figure ``$1.93'' is added.
0
l. In paragraph (i)(7), the figure ``$5'' is removed and, in its place, 
the figure ``$5.50'' is added.
0
m. In paragraph (i)(8), the figure ``$1.75'' is removed and, in its 
place, the figure ``$1.93'' is added.
    The revision reads as follows:


Sec.  24.22  Fees for certain services.

* * * * *
    (g) * * *
    (2) * * *

----------------------------------------------------------------------------------------------------------------
                                     Fee status for arrival from SL      Fee status for arrival from other than
 Place where journey originates  --------------------------------------                    SL
        (see (g)(1)(iv))                                               -----------------------------------------
                                      Vessel            Aircraft               Vessel              Aircraft
----------------------------------------------------------------------------------------------------------------
SL..............................           $1.93  No fee..............  No fee.............  No fee.
Other than SL or U.S............            1.93  $5.50...............  $5.50..............  $5.50.
U.S.*...........................            1.93  No fee..............  N/A................  N/A.
U.S.**..........................            1.93  $5.50...............  $5.50..............  $5.50.
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 111--CUSTOMS BROKERS

0
3. The authority citation for part 111 continues to read in part as 
follows:

    Authority: 19 U.S.C. 66, 1202, (General Note 3(i), Harmonized 
Tariff Schedule of the United States), 1624, 1641.
* * * * *
    Section 111.96 also issued under 19 U.S.C. 58c; 31 U.S.C. 9701.


0
4. Section 111.19 is amended in paragraph (c) by removing all the 
figures reading ``$125'' and adding in their place the figure ``$138''.
0
5. Section 111.96 is amended in paragraph (c) by removing all the 
figures reading ``$125'' and adding in their place the figure ``$138''.

Deborah J. Spero,
Acting Commissioner, Bureau of Customs and Border Protection.
    Approved: January 23, 2007.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 07-335 Filed 1-25-07; 8:45 am]
BILLING CODE 9114-14-P