Agricultural Research Service
Animal and Plant Health Inspection Service
Forest Service
Engineers Corps
Committee for Purchase From People Who Are Blind or Severely Disabled
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Defense Logistics Agency
Engineers Corps
Navy Department
Presidential Documents
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Land Management Bureau
Minerals Management Service
National Indian Gaming Commission
Reclamation Bureau
Alcohol, Tobacco, Firearms, and Explosives Bureau
Drug Enforcement Administration
Federal Bureau of Investigation
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Maritime Administration
National Highway Traffic Safety Administration
Alcohol and Tobacco Tax and Trade Bureau
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Animal and Plant Health Inspection Service, USDA.
Affirmation of interim rule as final rule.
We are adopting as a final rule, without change, an interim rule that amended the Karnal bunt regulations to remove certain areas or fields in Maricopa and Pinal Counties, AZ, and Archer, Baylor, Knox, McCulloch, San Saba, Throckmorton, and Young Counties, TX, from the list of regulated areas based on our determination that those fields or areas meet our criteria for release from regulation. The interim rule was necessary to relieve restrictions that are no longer necessary.
Effective on March 9, 2007, we are adopting as a final rule the interim rule published at 71 FR 67432-67436 on November 22, 2006.
Dr. Vedpal S. Malik, National Karnal Bunt Coordinator, Pest Detection and Management Programs, PPQ, APHIS, 4700 River Road, Unit 134, Riverdale, MD 20737-1231; (301) 734-3769.
In an interim rule
Comments on the interim rule were required to be received on or before January 22, 2007. We received two comments by that date. The comments were from a State agricultural agency and a wheat industry group. Both commenters supported the interim rule. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.
In the preamble of the interim rule, the text of the economic analysis mistakenly stated that in 2004, Pinal County, AZ, was the largest contributor to the total U.S. wheat market of the deregulated counties. Throckmorton County, TX, was the largest contributor of the listed counties for that year. The information given in Table 2 for percentage shares of U.S. wheat production was correct.
This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
Done in Washington, DC, this 5th day of March 2007.
National Credit Union Administration (NCUA).
Final rule.
NCUA is issuing a final rule to implement amendments to the Federal Credit Union Act (FCU Act) made by the Financial Services Regulatory Relief Act of 2006 (Reg Relief Act) enacted by Congress on October 13, 2006. This final rule amends NCUA's regulations to assure they are consistent with the statutory changes made by the Reg Relief Act. The final rule adopts the amendments as stated in the interim final rule issued in November 2006. It clarifies: That an appeal from a final NCUA Board decision regarding share insurance coverage shall be to the appropriate Federal District Court; that the NCUA Board may terminate the share insurance of any insured credit union for violation of any condition imposed by the Board in connection with any action on any application, notice, or other request by the credit union or an institution-affiliated party; and that Orders of Suspension, Prohibition and Removal issued by the NCUA Board remain effective against institution-affiliated parties regardless of whether they remain institution-affiliated parties at the time the Order is considered or issued.
The interim rule is adopted as final April 9, 2007.
John K. Ianno, Senior Trial Attorney, Office of General Counsel, at the above address
NCUA issued the interim rule published in the
NCUA received three comment letters regarding the interim final rule. Two were from national credit union trade associations and a third was from a state credit union league.
In general, each of the commenters agreed with the proposed changes. Two letters requested that NCUA provide examples or issue guidelines to explain the circumstances under which the NCUA Board might undertake formal administrative action in order to terminate the insured status of a credit union. The Board does not believe it would be helpful to try and enumerate the various situations when it might conclude that it is necessary to institute a formal administrative action against a particular credit union. Experience indicates that each case tends to be fact specific. There are many variables that influence a decision on what an appropriate course of action would be to correct a specific problem. Generally the Board will begin a formal administrative action such as termination of insurance only after it has exhausted other informal attempts to correct problems that have been identified. These less formal mechanisms include but are not limited to: (1) Action items contained in a document of resolution; (2) letters of understanding and agreement; (3) preliminary warning letters; and (4) cease and desist orders.
One commenter asked that the NCUA Board clarify the effective date of the change in venue for insurance appeals. The Board notes that when enacting the Reg Relief Act Congress did not indicate what venue would be appropriate for pending insurance appeals. Neither the text of the statute nor its legislative history clearly indicates whether petitions for review that were pending in the Courts of Appeal before the Act's passage should be reviewed in the District Courts under the new provision or remain in the Courts of Appeal under the old. Because there is no statutory provision that would allow a Court of Appeals to transfer a pending insurance appeal filed prior to the October 13, 2006 enactment of the statute, the Board believes that such cases should remain in the Court of Appeals. Venue for appeals of NCUA Board insurance determinations filed on or after that date shall be filed in the appropriate U.S. district court.
The Reg Relief Act amended section 207(d) of the FCU Act, which addresses the resolutions of disputes relating to any claim for insurance coverage. 12 U.S.C. 1787(d). The final rule amends the provision in NCUA's regulations, 12 CFR 745.203(c), that sets forth the appropriate venue for seeking judicial review of a final determination by the Board relating to a claim for insurance coverage.
The current regulation provides for judicial review by the United States Court of Appeals for the District of Columbia or the court of appeals for the Federal circuit where the credit union's principal place of business is located. The final rule revises the regulation to reflect the statutory change that a final agency determination by the Board on a claim for insurance coverage is reviewable by the United States district court for the Federal judicial district where the principle place of business of the credit union is located.
The Reg Relief Act amended three provisions of Section 206 of the FCU Act, 12 U.S.C. 1786, to broaden the NCUA Board's authority to take enforcement actions for violations of conditions imposed in any action on any application, notice, or other request by a credit union or an institution-affiliated party. Such violations can serve as a basis for cease and desist orders, removal and prohibition orders, and civil money penalties. Previously such enforcement actions could only be taken upon a violation of conditions imposed in “the granting of any application or other request by the credit union.” The amendments to Sections 747.1 and 202 of NCUA's Regulations conform the language of the regulation to that of the FCU Act as amended.
The Reg Relief Act amended Section 206(i)(1) of the FCU Act, 12 U.S.C. 1786(i)(1) to clarify the NCUA Board's authority to issue Orders against institution-affiliated parties regardless of whether they remain institution-affiliated parties of a credit union when the Order is considered or issued. The new statutory language makes clear that the NCUA Board has the authority to issue the Order even if the subject is no longer affiliated with the institution. The amendments to Sections 747.303 and 304 of NCUA's Regulations conform the language of the regulation to that of the FCU Act as amended.
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a rule may have on a substantial number of small credit unions, defined as those under ten million dollars in assets. This rule clarifies NCUA's enforcement authority and identifies the appropriate venue for appeals of final share insurance determinations. It does not impose any additional regulatory burden. The interim final amendments will not have a significant economic impact on a substantial number of small credit unions, and, therefore, a regulatory flexibility analysis is not required.
NCUA has determined that the interim final rule would not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget. 44 U.S.C. 3501
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The final rule will not have substantial direct effects on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.
The NCUA has determined that this final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).
The Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121 (SBREFA), provides
Credit unions, Share insurance.
Administrative practice and procedure, Bank deposit insurance, Claims, Credit unions, Equal access to justice, Investigations, Lawyers, Penalties.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of two supplemental new animal drug applications (NADAs) filed by Intervet, Inc. The supplemental NADAs provide for a revised human food safety warning for fenbendazole paste, used for the control of various internal parasites in horses and cattle.
This rule is effective March 9, 2007.
Melanie R. Berson, Center for Veterinary Medicine (HFV-110), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301 827 7540, e-mail:
Intervet, Inc., P.O. Box 318, 29160 Intervet Lane, Millsboro, DE 19966, filed a supplement to NADA 120-648 that provides for use of PANACUR (fenbendazole) Paste in horses for the control of various internal parasites, and to NADA 132-872 that provides for use of SAFE-GUARD (fenbendazole) Paste in cattle for the control of various internal parasites. The supplemental NADAs provide for a revised human food safety warning on product labeling. The supplemental NADAs are approved as of February 8, 2007, and the regulations are amended in 21 CFR 520.905c to reflect the approval and a current format.
Approval of these supplemental NADAs did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required.
FDA has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
The revisions, redesignation, and addition read as follows:
(a)
(d)
(e)
(B) For control of arteritis caused by the fourth-stage larvae of
(C) For treatment of encysted mucosal cyathostome (small strongyle) larvae including early third-stage (hypobiotic), late third-stage, and fourth-stage larvae: 4.6 mg/lb of body weight daily for 5 consecutive days.
(D) Fenbendazole paste 10 percent may be used concomitantly with approved forms of trichlorfon for the indications provided in paragraph (e)(1)(i)(A) of this section and for treating infections of stomach bots as provided in § 520.2520.
(ii)
(2)
(ii)
(iii)
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the
This rule is effective March 9, 2007.
Joan C. Gotthardt, Center for Veterinary Medicine (HFV-130), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-7571, e-mail:
Fort Dodge Animal Health, Division of Wyeth, 800 Fifth St. NW., Fort Dodge, IA 50501, filed a supplement to NADA 140-854 for SYNANTHIC (oxfendazole) Bovine Dewormer Suspension, approved for oral use in cattle for the removal of various internal parasites. The supplemental NADA provides for OTC marketing status. The supplemental application is approved as of January 29, 2007, and the regulations are amended in 21 CFR 520.1630 to reflect the approval and a current format. The basis of approval is discussed in the freedom of information summary.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
The redesignation, addition, and revisions read as follows:
(a)
(1) 90.6 milligrams (mg) oxfendazole (9.06 percent).
(2) 225.0 mg oxfendazole (22.5 percent).
(d)
(e)
(i)
(iii)
(2)
(i)
(iii)
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) filed by Bayer HealthCare LLC. The supplemental NADA provides for changing scientific nomenclature for a bovine respiratory pathogen on labeling for enrofloxacin injectable solution.
This rule is effective March 9, 2007.
Joan C. Gotthardt, Center for Veterinary Medicine (HFV-130), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-7571, e-mail:
Bayer HealthCare LLC, Animal Health Division, P.O. Box 390, Shawnee Mission, KS 66201, filed a supplement to NADA 141 068 for BAYTRIL 100 (enrofloxacin) Injectable Solution used for the treatment of bovine respiratory disease associated with several bacterial pathogens. The supplemental NADA provides for changing a pathogen name from
Approval of this supplemental NADA did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required.
The agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
(a)
(1) 22.7 milligrams (mg) enrofloxacin or
(2) 100 mg enrofloxacin.
(b)
(c)
(d)
(e)
(i)
(ii)
(2)
(i)
(ii)
(iii)
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of two new animal drug applications (NADAs) filed by Bayer HealthCare LLC. The NADAs provide for the topical use by veterinary prescription of topical solutions containing imidacloprid and two strengths of moxidectin, one for use on dogs and the other for use on cats, for the prevention of heartworm disease, the treatment of flea infestations, and the treatment and control of several internal parasites.
This rule is effective March 9, 2007.
Melanie R. Berson, Center for Veterinary Medicine (HFV-110), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855; tel: 301-827-7540; e-mail:
Bayer HealthCare LLC, Animal Health Division, P.O. Box 390, Shawnee Mission, KS 66201, filed NADA 141-251 that provides for veterinary prescription use of ADVANTAGE MULTI (imidacloprid 10% and moxidectin 2.5%) for Dogs, a topical solution used for the prevention of heartworm disease, the treatment of flea infestations, and the treatment and control of several internal parasites. Bayer HealthCare LLC also filed NADA 141-254 that provides for veterinary prescription use of ADVANTAGE MULTI (imidacloprid 10% and moxidectin 1%) for Cats, a topical solution used for the prevention of heartworm disease, the treatment of flea infestations, and the treatment and control of ear mites and several internal parasites. NADA 141-251 is approved as of December 20, 2006, and NADA 141-254 is approved as of January 19, 2007. Accordingly, the regulations are amended in part 524 (21 CFR part 524) by adding § 524.1146 to reflect these approvals.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), summaries of safety and effectiveness data and information submitted to support approval of these applications may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(ii)), this approval under NADA 141-251 qualifies for 3 years of marketing exclusivity beginning December 20, 2006, and this approval under NADA 141-254 qualifies for 3 years of marketing exclusivity beginning January 19, 2007.
The agency has determined under 21 CFR 25.33(d)(1) that these actions are of a type that do not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
(a)
(2) Each milliliter of solution contains 100 mg imidacloprid and 10 mg moxidectin for use as in paragraph (d)(2) of this section.
(b)
(c)
(d)
(ii)
(2)
(ii)
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
This Treasury decision establishes the 8,263-square mile “Snake River Valley” viticultural area in southwestern Idaho and southeastern Oregon. We designate viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.
April 9, 2007.
N.A. Sutton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 925 Lakeville St., No. 158, Petaluma, CA 94952; phone 415-271-1254.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.
Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographical origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—
• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;
• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;
• Evidence relating to the geographical features, such as climate, elevation, physical features, and soils, that distinguish the proposed viticultural area from surrounding areas;
• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and
• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.
The wine grape growers of the Snake River Valley in Idaho, the Idaho Grape Growers and Wine Producers Commission, and the Idaho Department of Commerce and Labor, collectively referred to as the “petitioner,” submitted a petition to establish the 8,263-square mile Snake River Valley viticultural area. The proposed viticultural area includes Ada, Adams, Boise, Canyon, Elmore, Gem, Gooding, Jerome, Owyhee, Payette, Twin Falls, and Washington Counties in southwestern Idaho and Baker and Malheur Counties in southeastern Oregon. The proposed boundary encompasses 15 wineries, 46 vineyards, and 1,107 acres of commercial vineyard production. We summarize below the supporting evidence presented with the petition.
The petitioner provided multiple sources of “Snake River Valley” name evidence for the proposed viticultural area. References include winemaking and vineyards, agriculture, early regional exploration, and other name uses.
The Fall 2001 edition of Wine Press Northwest ran an article titled “Idaho Wineries at a Glance,” which states, “At first glance, the Snake River Valley seems an idyllic place to grow grapes
The official Web site of the State of Idaho has a link to the history of Idaho, noting that in 1811 the Pacific Fur Company expedition explored the Snake River Valley and discovered the Boise Valley, which is within the boundary of the proposed viticultural area. An undated Sunset Magazine article, “The Snake River Valley of Idaho-Eastern Oregon,” discusses the significant agricultural production in the Snake River Valley of Idaho and eastern Oregon.
The USGS maps used to identify the proposed Snake River Valley viticultural area prominently show the Snake River at the low elevations of the proposed viticultural area. The American Automobile Association Western States/Provinces map, dated February 2003 through May 2005, shows the Snake River flowing from its headwaters in Wyoming, through Idaho and Oregon, and into Washington to where it joins the Columbia River near Pasco and Kennewick.
The proposed Snake River Valley viticultural area covers portions of southwestern Idaho and southeastern Oregon. The basis for the proposed boundaries, the petitioner explains, is the extent of ancient Lake Idaho, a deep lake that filled the western part of the Snake River Valley approximately 4 million years ago. The proposed boundary line, with a maximum elevation of 1,040 meters, or 3,412 feet, surrounds the now dry, ancient Lake Idaho at the highest elevation conducive to viticulture, according to the petitioner.
The Snake River Plain, a crescent-shaped belt of lava and sediment ranging from 40 to 62 miles wide, extends about 372 miles in length across southern Idaho, according to the petitioner. The geology of the western portion of the Snake River Plain, the petitioner continues, has lower elevations and a rift-bounded basin, which contrast to the higher elevations of the eastern section of the Snake River Plain. Also, according to the petitioner, the colder and drier climate of the eastern area is not conducive to successful viticulture, unlike the warmer weather and lower elevations of ancient Lake Idaho.
An April 21, 1997, article, “Hydrogeologic Framework of the Boise Valley of Southwest Idaho,” by Spencer H. Wood, Department of Geosciences, Boise State University, describes the Snake River Plain as a great geologic bathtub with layers of mud sediment and interconnected layers of sand. According to the article, the depth of the basin plain averages 3,500 feet but extends to 6,000 feet. Also, in prehistoric times ancient Lake Idaho was 800 feet deep in places and covered 5,000 square miles. Today, this region is a flat, semiarid plain that is irrigated for agriculture with water from the Boise River and with ground water, according to the article.
The proposed Snake River Valley viticultural area includes a series of distinguishing features. According to the petitioner its topography includes elevations lower than the surrounding areas and a fault-bounded, rift basin geography. Also, the area is primarily underlain by sedimentary rock. The comparatively warm climate of the proposed Snake River Valley viticultural area creates better grape-growing conditions than those in the surrounding higher elevations and the Snake River Valley in eastern Idaho.
The petitioner states that the geologic history of the proposed Snake River Valley viticultural area includes flood basalts, northwest-trending structures, loess mantles, and outburst floods. The ancient Lake Idaho extends 149 miles northwest to southeast as a system of lakes and flood plains, from the Oregon-Idaho State line to west of Twin Falls, Idaho.
North of the proposed Snake River Valley viticultural area boundary line, the petitioner explains, are Cretaceous granites of the Idaho Batholith, Eocene volcanoes, older sedimentary rocks, and volcanic flows. To the south of the proposed boundary line, volcanic rocks overlie the southern extension of the granite basement.
The petitioner includes a map of the Snake River Plain Aquifer System and information modified from the “Ground Water Atlas of the United States: Idaho, Oregon, Washington, U.S. Geological Survey Hydrologic Atlas HA 730-H, 1994.” The map shows that the Western Plain, which is within the proposed Snake River Valley viticultural area, is underlain by aquifers in basaltic rock but mainly in unconsolidated (sedimentary) deposits. In contrast, the Eastern Plain, to the east of the proposed Snake River Valley viticultural area, is underlain predominantly by aquifers in Pliocene and younger basaltic rocks.
The petitioner includes a second map that documents the distribution of rock types in the Pacific Northwest States, based on information taken from the same USGS Hydrologic Atlas noted above. The proposed Snake River Valley viticultural area, according to the map, is underlain primarily by sedimentary rocks, distinguishing the area from basaltic and other igneous rocks in the surrounding regions.
Mountains surrounding the western Snake River Valley region exceed 7,000 feet in elevation, especially to the east of the proposed viticultural area boundary line in the Boise National Forest, as shown on the Idaho City, Idaho, USGS map. The City of Twin Falls, Idaho, about 2
The petitioner provides three topographic profiles of the proposed Snake River Valley viticultural area drawn from various points of the compass. The three profiles include (1) California Mountain, Oregon, to Bruneau, Idaho, (2) Oreana, Idaho, to Danskin Peak, Idaho, and (3) Marsing, Idaho, to Emmett, Idaho. The profiles show the lower elevations of the ancient Lake Idaho basin in comparison to the surrounding higher mountain elevations beyond the proposed viticultural area boundary line. Payette, Idaho, is at an elevation of about 2,300 feet in the basin, but California Mountain, Oregon, reaches a height of approximately 5,150 feet, significantly higher than the proposed viticultural area boundary line.
The petitioner describes the soils of the proposed Snake River Valley viticultural area as being diverse and not a distinguishing feature, because the soils have developed in various parent materials, during various time frames, and under varying climatic conditions. The soils are broadly classified as Aridisols, the petitioner adds, and no single soil series or association is dominant.
Vineyards within the proposed Snake River Valley viticultural area are on soils that have underlying parent material derived from weathered sediment from the ancient Lake Idaho, according to the petitioner. At the surface are loess, sand, and, in slack water areas, flood-deposited silt. Typically, vineyards in the proposed area are on very shallow soils on slopes.
The distinguishing climatic features of the proposed Snake River Valley viticultural area, the petitioner states, include precipitation, air temperature, heat-unit accumulation, and growing season length. The factors affecting climate, the petitioner continues, include the region's topography, a basin depression with surrounding mountainous terrain; the continental inland location approximately 310 miles east of the Cascade Range; and the 43 degree north latitude line. The petitioner adds that the proposed Snake River Valley viticultural area is in a climatic transition zone with both continental and maritime regimes. The combination of elevation and latitude of the proposed Snake River Valley viticultural area, the petitioner continues, creates a shorter grape-growing season than those in many other viticultural regions in the Western United States.
Climatic data from four weather stations in the West Snake River Valley (WSRV) and for other grape-growing districts in the Western United States are noted in the climatic data table below.
The petitioner used online data from 1971 to 2000 compiled and archived by the National Climatic Data Center (NCDC), National Oceanic and Atmospheric Administration, for four areas within the proposed Snake River Valley viticultural area and for three viticultural regions outside of Idaho. The petitioner averaged the collected data for the four Idaho weather stations listed in the climatic data table below. The data are listed separately in the table for each station outside of Idaho, including Umpqua Valley, Oregon; Walla Walla Valley, Washington; and Napa Valley, California, all of which are in established American viticultural areas.
According to the petitioner, the Idaho weather stations within the proposed Snake River Valley viticultural area record about half the annual precipitation of the weather stations at Umpqua Valley, Oregon; Walla Walla Valley, Washington; and Napa Valley, California. The petitioner explains that the lower annual precipitation of the proposed Snake River Valley viticultural area may be partially due to the rain shadows of the Cascade, Sierra Nevada, and Owyhee Ranges.
The petitioner explains that the difference in winter temperatures between the colder proposed Snake River Valley viticultural area and the stations at Umpqua Valley, Oregon; Walla Walla Valley, Washington; and Napa Valley, California, results, to a great extent, from the higher elevations in the proposed viticultural area, which are between 660 and 1,040 meters, or 2,165 and 3,412 feet. Elevations of the other stations are Umpqua Valley, about 460 feet; Walla Walla Valley, 1,200 feet; and Napa Valley, 40 feet.
Also, distances from the Pacific Ocean affect the amount of moderating, marine air temperatures the seven weather stations receive. Oceans tend to moderate air temperatures over land; hence, a wider annual temperature range indicates a greater degree of continental influence, or distance from an ocean. The proposed Snake River Valley viticultural area and the Walla Walla Valley both have, as a measure of continental influence, mean annual temperature ranges of about 25 degrees C. In comparison, the Umpqua Valley and the Napa Valley, both of which are closer to the Pacific Ocean and are at low elevations, have a smaller mean annual temperature range—about 15 degrees C.
The temperatures of the proposed Snake River Valley viticultural area, according to the petitioner, rise rapidly during the growing season, from June through August. The Umpqua Valley in Oregon and the proposed Snake River Valley viticultural area have similar, annual, total growing degree-days, as shown in the climatic data table above; but, they have between 200 and 250 fewer heat units than the Walla Walla Valley, Washington, and the Napa Valley, California. Each degree that a day's mean temperature is above 50 degrees F, which is the minimum temperature required for grapevine growth, is counted as 1 degree-day (see “General Viticulture,” Albert J. Winkler, University of California Press, 1975).
The length of the proposed Snake River Valley viticultural area's growing season correlates to the frost-free period from about May 10 to September 29 annually, according to the petitioner. The total measurement of annual viticultural growth is between 64 and 117 days less than that measured at Walla Walla Valley, Washington; Umpqua Valley, Oregon; and Napa Valley, California.
TTB published Notice No. 60 regarding the proposed Snake River Valley viticultural area in the
After careful review of the petition and the comments received, TTB finds that the evidence submitted supports the establishment of the proposed viticultural area. Therefore, under the authority of the Federal Alcohol Administration Act and part 4 of our regulations, we establish the “Snake River Valley” viticultural area in southwestern Idaho and southeastern Oregon, effective 30 days from the publication date of this document.
See the narrative boundary description of the viticultural area in the regulatory text published at the end of this document.
The maps for determining the boundary of the viticultural area are listed below in the regulatory text.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. With the establishment of this viticultural area and its inclusion in part 9 of the TTB regulations, its name, “Snake River Valley,” is recognized under 27 CFR 4.39(i)(3) as a name of viticultural significance. The text of the new regulation clarifies this point. Consequently, wine bottlers using “Snake River Valley” in a brand name, including a trademark, or in another label reference as to the origin of the wine, must ensure that the product is eligible to use the viticultural area's name as an appellation of origin. No single part of the “Snake River Valley” viticultural area name standing alone, such as “snake” or “Snake River”, has viticultural significance. The word “snake” alone is not routinely identified with the “Snake River Valley.” The name “Snake River” applies to 13 streams in 9 States, spanning from Florida to Alaska, according to the USGS Geographic Names Information System.
For a wine to be labeled with a viticultural area name or with a brand name that includes a viticultural area name or other term specified as having viticultural significance in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name or other term of viticultural significance as an appellation of origin and that name or other term appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term of viticultural
Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
We certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name is the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
This rule is not a significant regulatory action as defined by Executive Order 12866, 58 FR 51735. Therefore, it requires no regulatory assessment.
N.A. Sutton of the Regulations and Rulings Division drafted this notice.
Wine.
27 U.S.C. 205.
(a)
(b)
(1) Baker, Oregon-Idaho, 1981;
(2) Brogan, Oregon-Idaho, 1980;
(3) McCall, Idaho-Oregon, 1980, Photoinspected 1990;
(4) Weiser, Idaho-Oregon, 1980, Photoinspected 1990;
(5) Boise, Idaho-Oregon, 1981;
(6) Idaho City, Idaho, 1982;
(7) Murphy, Idaho, 1986;
(8) Mountain Home, Idaho, 1990;
(9) Fairfield, Idaho, 1978;
(10) Twin Falls, Idaho, 1979;
(11) Glenns Ferry, Idaho, 1992;
(12) Triangle, Idaho, 1990;
(13) Mahogany Mountain, Idaho, 1978; and
(14) Vale, Oregon-Idaho, 1993.
(c)
(1) The beginning point is on the Baker map in Oregon at the intersection of the 1,040-meter contour line and Interstate 84, between Pleasant Valley and Oxman in Baker County, T10S/R42E;
(2) From the beginning point proceed east following the 1,040-meter contour line along the eastern side of the Burnt River Valley, then crossing over to the Brogan map, proceed northerly along the western side of the Snake River Valley and, crossing back over to the Baker map, proceed westerly along the southern side of the Powder River Valley to the 1,040-meter contour line's intersection with the northern boundary of Baker County, T7S/R40E, on the Baker map;
(3) Proceed 7.5 miles straight east along the northern boundary of Baker County to its intersection with the 1,040-meter line east of Oregon State Road 203 and three unnamed creeks, T7S/R41E, on the Baker map;
(4) Proceed generally southeast along the 1,040-meter contour line onto the McCall map, to its intersection with the 45 degree north latitude line, to the immediate west of North Creek in the Hell's Canyon National Recreation Area, T6S/R47E, on the northern border of the McCall map;
(5) Proceed straight east along the 45 degree north latitude line to its intersection with the 1,040-meter contour line, to the immediate east of North Creek, T6S/R47E, on the McCall map;
(6) Follow the 1,040-meter contour line, which encircles the northern portion of McLain Gulch, to its third intersection with the 45 degree north latitude line, west of the Snake River in Baker County, Oregon, T6S/R48E, on the McCall map;
(7) Proceed straight east along the 45 degree north latitude line to its intersection with the 1,040-meter contour line, to east of the Snake River and Indian Creek in Adams County, Idaho, T6S/R48W, on the McCall map;
(8) Continue following the 1,040-meter contour line in a generally clockwise rotation on the McCall map, proceeding southerly on the southeast side of the Snake River, northeasterly north of the Crooked River, crossing the Crooked River, T7S/R3W, proceeding southwesterly south of the Crooked River, crossing Brownlee Creek, T16N/R4W, proceeding generally southwesterly onto the Baker map, continuing southwesterly, crossing Sturgill Creek, T15N/R6W, and Dennett Creek, T14N/R6W, proceeding onto the Brogan map, proceeding southeasterly, crossing Rock Creek, T13N/R6W, proceeding onto the Weiser map, proceeding northeasterly, north of the Mann Creek State Recreation Area, crossing Mann Creek, T13N/R5W, continuing northeasterly onto the McCall map;
(9) Continue following the 1,040-meter contour line in a clockwise rotation on the McCall map, proceeding northeasterly, crossing Pine Creek, T15N/R4W, and Hornet Creek, T8S/R2W, passing west of the Payette National Forest, proceeding southerly, passing east of Mesa, onto the Weiser map, proceeding southerly, crossing Crane Creek, T12N/R1W, turning westerly, rounding north of the Paddock Valley Reservoir, crossing Willow Creek, T9N/R1W, turning southerly onto the Boise map, looping southerly and northerly north of the Black Canyon Reservoir and moving back onto the Weiser map;
(10) Continue following the 1,040-meter contour line in a clockwise rotation on the Weiser map, proceeding northerly, crossing Squaw Creek, T12N/R1E, and then southerly, crossing Cottonweed Creek, T11N/R1E, and then southerly again onto the Boise map, rounding south of South Mountain, back onto the Weiser map, proceeding northeasterly north of the Payette River, crossing the North Fork Payette River, T10N/R3E, then proceeding southwesterly south of the Payette River, onto the Boise map, proceeding generally southerly, crossing Cartwright Creek, T6N/R2E, and proceeding westerly and southeasterly towards Lucky Peak Lake, and then turning northward onto the Idaho City map;
(11) Continue following the 1,040-meter contour line in a clockwise
(12) Continue following the 1,040-meter contour line in a clockwise rotation southeasterly on the Murphy map to the Mountain Home map, proceeding southeasterly, crossing Canyon Creek, passing north of Mountain Home Reservoir, crossing King Hill Creek, onto the Fairfield map, proceeding easterly, crossing Clover Creek, T4S/R13E, proceeding southerly onto the Twin Falls map;
(13) Continue following the 1,040-meter contour line in a clockwise rotation on the Twin Falls map, proceeding southeasterly to the Snake River, T9S/R14E, following north of the Snake River and crossing at T10S/R18E, northeast of Twin Falls, proceeding westerly south of the Snake River to the Salmon River, following east of the Salmon River and crossing at T10S/R13E, proceeding northerly west of the Salmon River and the Hagerman Wildlife Management Area, proceeding west onto the Glenns Ferry map;
(14) Continue following the 1,040-meter contour line in a clockwise rotation on the Glenns Ferry map, proceeding generally west to Rosevear Gulch, turning south between Rosevear Gulch and Pilgrim Gulch, near Deadman Creek, heading northwesterly, continuing through the Bruneau Desert, crossing Hole Creek in Pot Canyon and proceeding to Bruneau Canyon, proceeding southeasterly east of Bruneau Canyon, crossing Bruneau Canyon, T10S/R7E, proceeding west of Bruneau Canyon then west onto the Triangle map;
(15) Continue following the 1,040-meter contour line in a clockwise rotation on the Triangle map, heading northwesterly, crossing Shoofly Creek and Alder Creek, T6S/R1W, onto the Murphy map, continuing northwesterly to Sinker Creek, crossing Sinker Creek, T4S/R2W, continuing northwesterly to Jump Creek, crossing Jump Creek, T1N/R5W, proceeding northwesterly onto the Boise map, crossing its southwestern corner, T2N/R5W, onto the Mahogany Mountain map;
(16) Continue following the 1,040-meter contour line in a clockwise rotation onto the Mahogany Mountain map, proceeding westerly onto the Vale map, generally northwesterly then southwesterly onto the Mahogany Mountain map, proceeding southwest, west, and generally north onto the Vale map, passing through Succor Creek State Recreational Area, returning to the Mahogany Mountain map, and, passing east of McIntyre Ridge, crossing Succor Creek, T1N/R46E, proceeding northerly back onto the Vale map;
(17) Continue following the 1,040-meter contour line in a clockwise rotation on the Vale map, proceeding northerly east of Owyhee Ridge and Long Draw to north of Lake Owyhee, southwesterly and southerly south of Lake Owyhee onto the Mahogany Mountain map, southwesterly south of Lake Owyhee, the Owyhee River, and Owyhee Canyon, crossing Owyhee Canyon at T29S/R41E, proceeding northerly west of Owyhee Canyon, northeasterly west of Owyhee River and Owyhee Reservoir, and northerly onto the Vale map;
(18) Continue following the 1,040-meter contour line in a clockwise rotation on the Vale map, proceeding generally northerly to T20S/R42E, southwesterly east of Cottonwood Creek, crossing Cottonwood Creek, T22S/R40E, proceeding north to the Malheur River, following the Malheur River westerly to the intersection of the 1,040-meter contour line and the 118 degree west longitude line in Malheur County, Oregon, T21S/R38E, on the western border of the Vale map;
(19) Proceed straight north along the 118 degree west longitude line to its intersection with the 1,040-meter contour line, north of the Malheur River, T20S/R38E, proceeding easterly north of the Malheur River to Hog Creek, crossing Hog Creek, T20S/R40E, and proceeding northerly on the Vale map;
(20) Continue following the 1,040-meter contour line in a clockwise rotation, crossing onto the Brogan map, proceeding easterly, northerly, and westerly to and around Malheur Reservoir, T14S/R41E, proceeding easterly to Cottonwood Gulch then northerly to Dixie Creek, crossing Dixie Creek, T12S/RR41E, proceeding easterly and northerly onto the Baker map;
(21) Continue following the 1,040-meter contour line in a clockwise rotation on the Baker map, proceeding westerly south of the Burnt River, crossing the Burnt River, T10S/R41E, proceeding easterly north of the Burnt River to Gravel Pits, then northerly, returning to the beginning point.
Department of the Navy, DoD.
Final rule.
The Department of the Navy is amending its certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) has determined that USS MESA VERDE (LPD 19) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with certain provisions of the 72 COLREGS without interfering with its special function as a naval ship. The intended effect of this rule is to warn mariners in waters where 72 COLREGS apply.
Effective Date: February 6, 2007.
Commander Gregg A. Cervi, JAGC, U.S. Navy, Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), Office of the Judge Advocate General, Department of the Navy, 1322 Patterson Ave., SE., Suite 3000, Washington Navy Yard, DC 20374-5066, telephone 202-685-5040.
Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR Part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS MESA VERDE (LPD 19) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Rule 27, pertaining to the placement of all-round task lights in a vertical line; Annex I, paragraph 3(a),
Moreover, it has been determined, in accordance with 32 CFR Parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner different from that prescribed herein will adversely affect the vessel's ability to perform its military functions.
Marine safety, Navigation (water), and Vessels.
33 U.S.C. 1605.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Fifth Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the National Railroad Passenger Corporation (AMTRAK) Bridge, at mile 1.0, across Susquehanna River at Havre de Grace, Maryland. This deviation allows the drawbridge to remain closed-to-navigation beginning at 6 p.m. on March 30, 2007, until and including 6 p.m. on June 8, 2007, to facilitate structural repairs.
This deviation is effective from 6 p.m. on March 30, 2007, until 6 p.m. on June 8, 2007.
Materials referred to in this document are available for inspection or copying at Commander (dpb), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The telephone number is (757) 398-6222. Commander (dpb), Fifth Coast Guard District maintains the public docket for this temporary deviation.
Bill H. Brazier, Bridge Management Specialist, Fifth Coast Guard District, at (757) 398-6422.
The AMTRAK Bridge, a swing-type drawbridge, has a vertical clearance in the closed position to vessels of 52 feet, above mean high water.
AMTRAK, the bridge owner, has requested a temporary deviation from the current operating regulation set out in 33 CFR 117.575 and to close the drawbridge to navigation to perform needed structural repairs.
The repairs will include the renewal of 3,184 bridge timbers as well as the installation of new rail and expansion joints. To facilitate this work, the AMTRAK Bridge will be maintained in the closed-to-navigation position beginning at 6 p.m. on March 30, 2007, until and including 6 p.m. on June 8, 2007.
The Coast Guard has informed the known users of the waterway of the closure periods for the bridge so that these vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period.
This deviation from the operating regulations is authorized under 33 CFR 117.35.
Office of Innovation and Improvement, Department of Education.
Final regulations.
The Secretary amends the regulations governing the Magnet Schools Assistance Program (MSAP) in 34 CFR part 280. These amendments allow the MSAP to use an approach similar to that in § 75.200 for establishing selection criteria in grant competitions. Under this approach the MSAP has the flexibility to use selection criteria from its program regulations, from the menu of general selection criteria in the Education Department General Administrative Regulations (EDGAR) in § 75.210, based on statutory provisions in accordance with § 75.209, or from any combination of these.
These regulations are effective April 9, 2007.
Steven L. Brockhouse, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W229, Washington, DC 20202-5970. Telephone: (202) 260-2476 or via Internet:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under
On August 22, 2006 the Secretary published a notice of proposed rulemaking (NPRM) for these amendments in the
In the preamble to the NPRM, the Secretary discussed on pages 48866 and 48867 the major changes proposed in that document to provide the MSAP with the flexibility to use different types of selection criteria when evaluating grant applications in a specific grant competition. These included the following:
• Amending § 280.30 to give the Secretary the flexibility to use selection criteria from § 280.31, from the approved menu of general selection criteria in § 75.210 or from selection criteria based on statutory provisions governing the MSAP, established in accordance with § 75.209.
• Amending § 280.31 to remove the mandatory point values from the selection criteria in this section of the MSAP regulations.
There are no differences between the NPRM and these final regulations.
In response to the Secretary's invitation in the NPRM, nine parties submitted comments on the proposed regulations. An analysis of the comments follows.
We discuss substantive issues under the sections of the regulations to which they pertain. Generally, we do not address technical and other minor changes—and suggested changes the law does not authorize the Secretary to make.
The amended regulations provide the flexibility to make adjustments to the selection criteria that are used for a particular competition. Implementation of this change does not mean that existing selection criteria that continue to work effectively in the selection of high-quality applications for awards will be disregarded or abandoned. In fact, it is unlikely that the use of this approach will result in major changes from one grant competition to the next. Nonetheless, the Department does believe that the flexibility gained in using this approach will enable us to more effectively tailor selection criteria to ensure projects best address the purpose and requirements of the MSAP statute.
The Department welcomes comments and suggestions on selection criteria, and the application process generally, apart from formal opportunities to comment. Potential applicants, grantees, program beneficiaries, and others are encouraged to advise the Department about their experience with the selection criteria, and to provide recommendations for criteria for future competitions at any time, for the Department's use in designing selection criteria.
Moreover, as discussed earlier in these comments, the Department believes that this approach provides flexibility to make adjustments to the selection criteria that are used for a particular competition and that the flexibility gained in using this approach will enable us to more effectively tailor selection criteria to help ensure the selection of projects that best address the purpose and requirements of the MSAP statute.
We have reviewed these final regulations in accordance with Executive Order 12866. Under the terms of the order we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those resulting from statutory requirements and those we have determined to be necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of these final regulations, we have determined that the benefits of the regulations justify the costs.
We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
We summarized the potential costs and benefits of these final regulations in the preamble to the NPRM (71 FR 48867).
The Paperwork Reduction Act of 1995 does not require you to respond to a collection of information unless it displays a valid OMB control number. We display the valid OMB control number assigned to the collection of information in these final regulations at the end of the affected section of the regulations.
This program is subject to the requirements of Executive Order 12372 and the regulations in 34 CFR part 79. The objective of the Executive order is to foster an intergovernmental partnership and a strengthened federalism by relying on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
In accordance with the order, we intend this document to provide early notification of the Department's specific plans and actions for this program.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
You may also view this document in text or PDF at the following site:
The official version of this document is the document published in the
Civil rights, Desegregation, Education, Elementary and secondary education, Grant programs—education, Magnet schools, Reporting and recordkeeping requirements.
20 U.S.C. 7231-7231j, unless otherwise noted.
(a) The Secretary evaluates an application under the procedures in 34 CFR part 75 and this part.
(b) To evaluate an application for a new grant the Secretary may use—
(1) Selection criteria established under 34 CFR 75.209;
(2) Selection criteria in § 280.31;
(3) Selection criteria established under 34 CFR 75.210; or
(4) Any combination of criteria from paragraphs (b)(1), (b)(2), and (b)(3) of this section.
(c) The Secretary indicates in the application notice published in the
(d) The Secretary evaluates an application submitted under this part on the basis of criteria described in paragraph (c) of this section and the priority factors in § 280.32.
(e) The Secretary awards up to 100 points for the extent to which an application meets the criteria described in paragraph (c) of this section.
(f) The Secretary then awards up to 30 additional points based upon the priority factors in § 280.32.
U.S. Forest Service, Agriculture; Bureau of Land Management, Interior.
Joint final rule; correction.
On March 7, 2007, the Forest Service and the Bureau of Land Management jointly published a final rule (72 FR 10308). The dates heading on page 10308 incorrectly set out the effective date as April 6, 2007. The correct effective date of the final rule is May 7, 2007, consistent with the chart on page 10328.
The effective date of the final rule published March 7, 2007 (72 FR 10308) is corrected to May 7, 2007.
Kelly Odom, Bureau of Land Management, at (202) 452-5028.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is revising the Kansas State Implementation Plan (SIP) for the purpose of approving the Kansas Department of Health and Environment's (KDHE) actions to address the “good neighbor” provisions of the Clean Air Act Section 110(a)(2)(D)(i). These provisions require each state to submit a SIP that prohibits emissions that adversely affect another state's air quality through interstate transport. KDHE has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to downwind nonattainment of the National Ambient Air Quality Standards (NAAQS), interference with maintenance of the NAAQS, interference with plans in another state to prevent significant deterioration of air quality, and efforts of other states to protect visibility. The requirements for public notification were also met by KDHE.
This direct final rule will be effective May 8, 2007, without further notice, unless EPA receives adverse comment by April 9, 2007. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-0141, by one of the following methods:
1.
2.
3.
4.
Michael Jay at (913) 551-7460, or by e-mail at
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
What is being addressed in this document?
What action is EPA taking?
EPA is revising the SIP for the purpose of approving the KDHE's actions to address the requirements of the Clean Air Act (CAA) section 110(a)(2)(D)(i). This CAA section requires each state to submit a SIP that
EPA issued guidance on August 15, 2006, relating to SIP submissions to meet the requirements of section 110(a)(2)(D)(i). As discussed below, Kansas' analysis of its SIP with respect to the statutory requirements is consistent with the guidance.
The KDHE has addressed the first two of these elements by submitting a technical demonstration supporting the conclusion that emissions from Kansas do not significantly contribute to downwind nonattainment or interfere with maintenance of the NAAQS in another state. For PM
For 8-hour ozone, the state was unable to rely on EPA CAIR modeling to determine the state's impact on projected 8-hour ozone nonattainment in downwind states. The EPA CAIR 8-hour ozone modeling domain did not include the entire state. As a result, impacts from the state were not provided in the analyses. Therefore, the state has provided additional analyses, as part of the technical demonstration, to support a negative declaration that the state contributes significantly to projected downwind 8-hour ozone nonattainment in the year 2010.
The technical demonstration includes analyses on a number of EPA guidance elements. For example, the technical demonstration includes a backtrajectory analysis to examine Kansas' impacts on the nearest EPA projected 8-hour ozone nonattainment area for the year 2010. CAIR modeling projects the ozone nonattainment counties nearest to Kansas will be Kenosha and Ozaukee, Wisconsin. The backtrajectory analysis revealed that relatively few air masses pass over Kansas prior to arriving to these counties during high ozone days, thus demonstrating that emissions from Kansas have a minimal contribution to the 8-hour ozone nonattainment of the two counties. Additionally, the state has emphasized that St. Louis, Missouri, the nearest current nonattainment area, is projected by EPA to be in attainment of the 8-hour ozone standard in the year 2010. Based on this and other information provided by the state in the technical demonstration, EPA believes the state has sufficiently demonstrated that emissions from the state do not significantly contribute to downwind nonattainment or interfere with maintenance of the NAAQS. Additional supporting information can be found in the state's technical demonstration included in the docket.
The third element KDHE addressed was prevention of significant deterioration (PSD). For 8-hour ozone, the state has met the obligation by confirming that major sources in the state are currently subject to PSD programs that implement the 8-hour ozone standard and that the state is on track to meet the June 15, 2007, deadline for SIP submissions adopting any relevant requirements of the Phase II ozone implementation rule. For PM
It should be noted that Kansas is currently designated attainment for both the 8-hour ozone and PM
At this time, it is not possible for KDHE to accurately determine whether there is interference with measures in another state's SIP designed to protect visibility, which is the fourth element that was addressed. Technical projects relating to visibility degradation source-receptor relationships are under development. Kansas will be in a more advantageous position to address the visibility projection requirements once the initial regional haze SIP has been developed. KDHE intends to meet the December 17, 2007, submittal deadline for the regional haze SIP.
A public hearing with regard to this action was held by the state. No comments were received.
With this action, the non-regulatory text in 40 CFR 52.870(e) is revised to reflect that KDHE addressed the elements of the CAA section 110(a)(2)(D)(i) submittal.
EPA is approving this revision submitted by Kansas and is revising 40 CFR 52.870 to reflect that the KDHE has adequately addressed the required elements of the CAA section 110(a)(2)(D)(i) SIP. Please note that if EPA receives adverse comments on part of this rule, and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This action also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255,
In reviewing state submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 8, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the state of Missouri. EPA is approving a request to amend the Missouri SIP to include revisions to the St. Louis Solvent Metal Cleaning rule. The revisions to this rule include consolidating exemptions in the applicability section, adding new exemptions, adding definitions of new and previously undefined terms, and clarifying rule language regarding operating procedure requirements for spray gun cleaners and air-tight and airless cleaning systems. This revision will ensure consistency between the state and the Federally-approved rules.
This direct final rule will be effective May 8, 2007, without further notice, unless EPA receives adverse comment by April 9, 2007. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-0083, by one of the following methods:
1.
2. E-mail:
3. Mail: Amy Algoe-Eakin, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
4. Hand Delivery or Courier. Deliver your comments to Amy Algoe-Eakin, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Amy Algoe-Eakin at (913) 551-7942, or by e-mail at
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.
Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
On January 17, 2007, Missouri requested that EPA approve a revision to the SIP to include changes to Missouri rule 10 CSR 10-5.300, Control of Emissions From Solvent Metal Cleaning. This rule specifies equipment, operating procedures, and training requirements for the reduction of volatile organic compound (VOC) emissions from solvent metal cleaning operations in the St. Louis, Missouri, metropolitan area. Generally, the revisions to this rule include: (1) Consolidating exemptions in the applicability section, (2) adding new exemptions, (3) adding definitions of new and previously undefined terms, and (4) clarifying rule language regarding operating procedure requirements for spray gun cleaners and air-tight and airless cleaning systems.
More specifically, the revisions to the applicability section include revisions to subsection (1)(C), which describes the processes which use nonaqueous solvents to clean and remove soils from metal parts which are subject to this rule, and subsection (1)(D), which lists the solvents which are exempt from this rule. Subsection (1)(D) consolidates existing exemptions into one section and adds three new exemptions. The first new exemption is the exemption of solvent metal cleaning operations which are regulated under 40 CFR part 63, subpart T, the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Halogenated Solvent Cleaning. The Missouri Department of Natural Resources' Air Pollution Control Program (MDNR/APCP) states that the solvents used in this practice are required to comply with the Federal NESHAP for Halogenated Solvent Cleaning and states that in general the NESHAP for Halogenated Solvent
The second and third new exemptions added were for flush cleaning operations and hand cleaning/wiping operations. These exemptions were also added because industry conducting these activities were already regulated by Federal standard 40 CFR part 63, subpart GG, the NESHAP for Aerospace Manufacturing and Rework Facilities and by Missouri rule 10 CSR 10-5.455, Control of Emissions From Solvent Cleanup Operations. Based on the review of this analysis, we believe that revision of this rule to exempt these source categories because the Federal NESHAP and existing state rule, 10 CSR 10-5.455, are at least as stringent and sources must comply with this Federal NESHAP and existing state rule.
The MDNR/APCP also added several new definitions and evaluated the air quality impact of these new definitions. These definitions include: (2)(E) Flush cleaning, (2)(I) hand cleaning/wiping operation, (2)(M) nonaqueous solvent, and (2)(P) spray gun cleaner. These definitions were added to provide clarity to the rule, and Missouri has provided an analysis showing that this revision will not cause any increase in emissions.
The MDNR/APCP also reorganized the General Provisions section. Specifically subsection (3)(A) of the rule was reorganized into subparagraphs for cold cleaners, open-top vapor degreasers, conveyorized degreasers, and air-tight or airless cleaning systems. Subsection (3)(B) outlines operating procedures for the four operations mentioned above. The spray gun cleaner, subparagraph (3)(B)4., and the air-tight and airless cleaning systems, subparagraph (3)(B)5., were added to provide more clarity to the rule's application for these two operations. Subsection 3(C) was revised to add clarifying language to the operator and supervisor training portion of this rule, and subsection (4)(A), reporting and record keeping language, was revised to require the records to be kept current and made available for review on a monthly basis.
The Solvent Metal Cleaning rule is part of the St. Louis 15% Rate of Progress (ROP) Plan, which was required as part of the 1-hour ozone moderate nonattainment area requirements. Therefore, Missouri is currently developing an attainment demonstration and reasonable further progress plan for the 8-hour ozone SIP for the area but has not completed that work. Missouri has prepared documentation which demonstrates that these rule revisions will not negatively impact air quality in the St. Louis area. The demonstration consists of (1) an explanation of the rationale for the revisions to the rule's format, and (2) an evaluation of the revisions to the applicability section, definitions section, general provisions section, the reporting and record keeping section, and test methods section. The reformatting of the rule makes this rule consistent with the general format of Missouri air rules. The rule reformatting does not change any requirements and, therefore, does not impact emissions. As explained above, the additional exemptions in the rule do not significantly change the emissions limits to which the affected sources are subject.
The submittal satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the state submittal has met the public notice requirements for SIP submission in accordance with 40 CFR 51.102 and met the substantive SIP requirements of the CAA including section 110.
We are approving the request to amend the Missouri SIP to include revisions to the St. Louis Solvent Metal Cleaning rule, 10 CSR 10-5.300.
We are processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial and make regulatory revisions, required by state statute. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it approves a state rule implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 8, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Direct final rule.
EPA is approving revisions to the Missouri State Implementation Plan (SIP) and Operating Permits Program. EPA is approving a revision to the Missouri rule entitled “Submission of Emission Data, Emission Fees, and Process Information.” This revision will ensure consistency between the state and the Federally-approved rules.
This direct final rule will be effective May 8, 2007, without further notice, unless EPA receives adverse comment by April 9, 2007. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-0041, by one of the following methods:
1.
2. E-mail:
3. Mail: Amy Algoe-Eakin, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
4. Hand Delivery or Courier. Deliver your comments to Amy Algoe-Eakin, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Amy Algoe-Eakin at (913) 551-7942, or by e-mail at
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.
Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
The CAA Amendments of 1990 require all states to develop operating permits programs that meet certain Federal criteria. In implementing this program, the states are to require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One purpose of the part 70 operating permits program is to improve enforcement by issuing each source a single permit that consolidates all of the applicable CAA requirements into a Federally-enforceable document. By consolidating all of the applicable requirements for a facility into one document, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.
Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in our implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen dioxide, or PM
Revision to the state and local agencies operating permits program are also subject to public notice, comment, and our approval.
In order for state regulations to be incorporated into the Federally-enforceable Title V operating permits program, states must formally adopt regulations consistent with state and
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the approved operating permits program. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 502 of the CAA are incorporated into the Federally-approved operating permits program. Records of such actions are maintained in the CFR at Title 40, part 70, appendix A, entitled “Approval Status of State and Local Operating Permits Programs.”
Missouri, in its letter of December 11, 2006, requested that EPA approve a revision to the SIP and Operating Permits Program to include revisions to rule 10 CSR 10-6.110, “Submission of Emission Data, Emission Fees, and Process Information”. This rule deals with submittal of emissions information, emission fees, and public availability of emissions data. It provides procedures for collection, recording, and submittal of emissions data and process information on state-supplied Emission Inventory Questionnaire and Emission Statement forms so that the state can calculate emissions for the purpose of state air resource planning.
By state statute and to meet EPA requirements under the Title V program, the emission fees are set annually to fund the reasonable cost of administering the program. The Missouri Department of Natural Resources (MDNR) continually evaluates the Operating Permits Program financial situation. Section (3)(D)1. established the emissions fee of $34.50 per ton of regulated air pollutant starting for calendar year 2005 which remains the fee for calendar year 2006. This revision merely changes the text from calendar year 2005 to 2006.
Subsection (3)(D)2.E. was revised to change the due date for emission fees from the previous year to be due on June 1 instead of April 1, for all Standard Industrial Classifications.
Subsection (3)(D)2.F. was revised to change the due date for Emission Inventory Questionnaire forms from April 1 to June 1 for all Standard Industrial Classifications.
The rule revisions do not change the stringency of the SIP or Title V program and the revisions otherwise meet the EPA requirements for both programs.
The submittal satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the state submittal has met the public notice requirements for SIP submission in accordance with 40 CFR 51.102 and met the substantive SIP requirements of the CAA including section 110 and 40 CFR 51.211, relating to submission of emissions data.
Finally, the submittal met the substantive requirements of Title V of the 1990 CAA Amendments and 40 CFR part 70, including the requirement in 40 CFR 70.9 relating to emission fees.
We are approving revisions to the Missouri SIP and incorporating the revised rule 10 CSR 10-6.110, “Submission of Emissions Data, Emission Fees, and Process Information.”
We are also approving sections (3)(D)1, and (3)(D)2.E., and (3)(D)2.F. of this rule as program revisions to the state's Part 70 Operating Permits Program.
We are processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial, and make regulatory revisions required by state statute. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.
In reviewing SIP and Title V permit submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 8, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
42 U.S.C. 7401,
(u) The Missouri Department of Natural Resources submitted revisions to Missouri rule 10 CSR 10-6.110, “Submission of Emission Data, Emission Fees, and Process Information” on December 11, 2006; approval of sections (3)(D)1., (3)(D)2.E., and (3)(D)2.F. effective May 8, 2007.
Health Resources and Services Administration, HHS.
Final rule.
This Final Rule sets forth the Secretary's decision to include intestines within the definition of organs covered by the regulations governing the operations of the Organ Procurement and Transplantation
This Final Rule is effective March 9, 2007.
Jim Burdick, M.D., Director, Division of Transplantation, Healthcare Systems Bureau, Health Resources and Services Administration (HRSA), 5600 Fishers Lane, Room 12C-06, Rockville, Maryland 20857.
Based upon a review of intestinal transplants, the Secretary believes that intestines should now be included within the definition of organs covered by the rules governing the operation of the OPTN (42 CFR part 121) (hereinafter the final rule). This Final Rule sets forth the history of intestinal transplants, the factors that have persuaded the Department of the advisability of including intestines within the ambit of the regulations governing the operation of the OPTN, and the anticipated consequences of this Rule.
The first successful intestinal transplant was performed in 1989. Intestinal transplantation may be considered for patients with irreversible intestinal failure due to surgery, trauma, or acquired or congenital disease who cannot be managed through the intravenous delivery of nutrients, also referred to as total parenteral nutrition (TPN). Although intestinal transplants have been performed for years, considerable morbidity and mortality have limited widespread clinical use. Complications are frequent and include acute and chronic rejection, lymphoproliferative disease, and serious infections such as cytomegalovirus disease. For patients who received intestinal transplants in the United States from January 2000 through June 2002, one-year graft and patient survival rates were 67 percent and 81 percent respectively for adults, and 58 percent and 65 percent respectively for pediatric recipients. Despite the shortcomings, the number of candidates for intestinal transplants and the number of intestinal transplants performed annually is increasing.
The OPTN first adopted voluntary intestinal organ allocation policies and began to maintain a list of patients waiting for intestinal transplants in 1993. On December 31, 1993, only 43 candidates were listed on the intestinal transplant waiting list, compared to 169 candidates on this list on October 24, 2003. The number of intestinal transplants performed annually has more than tripled from 34 transplants in 1993 to 109 transplants in 2002. However, the volume of transplants per transplant center is relatively small. Ten transplant centers performed one or more intestinal transplants in 2002; only five of these centers performed ten or more transplants. Overall median waiting time was 319 days for patients added to the intestinal transplant waiting list in 2001.
According to the OPTN, intestinal organ allocation may include the esophagus, stomach, small and/or large intestine, or any portion of the gastrointestinal tract as determined by the medical needs of individual patients (OPTN Policy 3.11). OPTN voluntary policies are available at
The nature of the regulatory framework governing the operation of the OPTN underlies the importance of including intestines within the definition of organs covered by the regulations. Under the final rule, the OPTN must submit proposed policies for review and approval by the Secretary according to the requirements of 42 CFR 121.4. Upon consideration of public comments on proposed policies that are considered significant, the Secretary will determine whether to make such proposed policies enforceable in accordance with 42 CFR 121.10. Any transplant hospital that fails to comply with any allocation policy approved as enforceable by the Secretary under this process will be subject to the enforcement sanctions delineated in 42 CFR 121.10, including termination from the Medicare and Medicaid programs.
The Secretary is legally obliged, as part of his responsibilities in administering the Medicare and Medicaid programs, to require hospitals that transplant organs to comply with the rules and requirements of the OPTN as a condition of their participation in Medicare and Medicaid under 42 U.S.C. 1320b-8(a)(1)(B). Because intestines currently are not included within the regulation's definition of organs, the Secretary cannot make any intestinal allocation policy enforceable. The inclusion of intestines as covered organs under this Final Rule will allow the Secretary to take appropriate enforcement actions against a transplant hospital that fails to comply with any OPTN intestinal allocation policy if such a policy is approved by the Secretary. This enforcement authority is particularly significant given that many recipients of transplanted intestines receive such organs together with other organs covered under the regulations. It is necessary to ensure that intestinal organ allocation, whether pertaining to isolated intestinal transplants or combined/multi-organ transplants, is consistent with the goal of an equitable national system for organ allocation. Enforcing the allocation for organs currently covered under the regulations, such as livers, would be difficult when intestines are transplanted together with other such organs if an intestinal allocation is not subject to the Secretary's enforcement authority.
As the field of intestinal transplantation evolves, it will become more critical that intestinal organ allocation keeps pace with advances in the field; that policy development include performance indicators to assess whether the goals of an equitable transplant system are being achieved; that the Secretary has the authority to make those policies enforceable; and that patients and physicians have timely access to accurate data that will assist them in making decisions regarding intestinal transplantation. Upon consideration of the foregoing factors, and in order to achieve the most equitable and medically effective use of donated organs, the Secretary has determined that intestines should explicitly be added to the definition of organs covered by the OPTN regulations at 42 CFR Part 121.
The public was invited to respond to the Notice of Proposed Rulemaking (NPRM) which was published in the
The Secretary invited public comment as to the advisability of including any other organ within the ambit of this final rule. The comments we received did not request the inclusion of any other organ under the OPTN regulations.
The Secretary further invited public comment on including intestines within the definition of human organs covered by section 301, as amended, of the National Organ Transplant Act (NOTA) (hereinafter section 301), which prohibits the purchase or sale of human organs for human transplantation.
Originally as enacted section 301 of NOTA (Pub. L. 98-507) defined the term “human organ” as “the human kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin and any other human organ specified by the Secretary of Health and Human Services by regulation.” NOTA, Public Law 98-507, Title III, section 301, 98 Stat. 2346-2347 (1984). This section was subsequently amended by Congress to include fetal organs, as well as subparts of the specified organs, by Public Law 100-607, section 407.
As set forth by statute, Congress authorized the Secretary to add additional organs to the definition of “human organ” covered by section 301 through rulemaking in order to include the transplantation of additional human organs. Through this Final Rule, the Secretary adds intestines to the list of human organs covered by section 301. The Secretary adds a new section to 42 CFR Part 121 to effectuate this change.
The comments we received supported adding intestines to the definition of organs covered under section 301 of NOTA and encouraged coordination with the Centers for Medicare and Medicaid Services regarding implementation of the respective but related authorities regarding organ procurement and transplantation.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when rulemaking is necessary, to select regulatory approaches that provide the greatest net benefits (including potential economic, environmental, public health, safety, distributive and equity effects). In addition, under the Regulatory Flexibility Act, if a rule has a significant economic effect on a substantial number of small entities the Secretary must specifically consider the economic effect of a rule on small entities and analyze regulatory options that could lessen the impact of the rule.
Executive Order 12866 requires that all regulations reflect consideration of alternatives, of costs, of benefits, of incentives, of equity, and of available information. Regulations must meet certain standards, such as avoiding an unnecessary burden. Regulations which are “significant” because of cost, adverse effects on the economy, inconsistency with other agency actions, effects on the budget, or novel legal or policy issues, require special analysis.
The Secretary has determined that no resources are required to implement the requirements in this Final Rule. Therefore, in accordance with the Regulatory Flexibility Act of 1980 (RFA), and the Small Business Regulatory Enforcement Act of 1996, which amended the RFA, the Secretary certifies that this rule will not have a significant impact on a substantial number of small entities. Since independent and hospital-based organ procurement organizations (OPOs) are not considered small rural hospitals because OPOs generally service large geographical areas, a regulatory flexibility analysis under the RFA and a rural impact analysis under section 1102(b) of the Act are not required.
The Secretary has also determined that this Final Rule does not meet the criteria for a major rule as defined by Executive Order 12866, as amended by Executive Order 13258, and would have no major effect on the economy or Federal expenditures. We have determined that the Final Rule is not a “major rule” within the meaning of the statute providing for Congressional Review of Agency Rulemaking, 5 U.S.C. 801. Similarly, it will not have effects on State, local, and tribal governments and on the private sector such as to require consultation under the Unfunded Mandates Reform Act of 1995.
Nor on the basis of family well-being will the provisions of this Final Rule affect the following family elements: Family safety, family stability, marital commitment; parental rights in the education, nurture and supervision of their children; family functioning, disposable income or poverty; or the behavior and personal responsibility of youth, as determined under section 654(c) of the Treasury and General Government Appropriations Act of 1999.
As stated above, this Final Rule will modify the regulations governing the OPTN and section 301 of NOTA based on legal authority.
This Final Rule will have the effect of including human intestines within the ambit of the regulations governing the operation of the OPTN, and will include transplanted human intestines within the changes made at section 301 of NOTA. The changes made in this Rule will authorize the Secretary to take enforcement actions against entities violating OPTN policies pertaining to the transplantation of intestines once such policies are approved as enforceable by the Secretary. In addition, individuals violating section 301 of NOTA with respect to intestinal transplants will be subject to criminal penalties.
The amendments proposed in this Rule will not impose any additional data collection requirements beyond those already imposed under the current regulations, which have been approved by the Office of Management and Budget (OMB No. 0915-0157). The currently approved data collection includes worksheets and burden for intestinal transplants.
Health care, Hospitals, Organ transplantation, Reporting and recordkeeping requirements.
Sections 215, 371-376 of the Public Health Service Act (42 U.S.C. 216, 273-274d); sections 1102, 1106, 1138 and 1871 of the Social Security Act (42 U.S.C. 1302, 1306, 1320b-8 and 1395hh); and section 301 of the National Organ Transplant Act, as amended (42 U.S.C. 274e).
The revision reads as follows:
(b) The provisions of § 121.13 apply to the prohibition set forth in section 301 of the National Organ Transplant Act, as amended.
“Human organ,” as covered by section 301 of the National Organ Transplant Act, as amended, means the human (including fetal) kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, skin, and intestine, including the esophagus, stomach, small and/or large intestine, or any portion of the gastrointestinal tract.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
The backrest recline of pilot and copilot seats requires the removal of a “quick release pin” not correctly indicated in the AFM and not ready detectable by the passengers. Moreover the operation of removal the device is difficult. This cause difficulty or disables the access to the escapes of the cabin in case of emergency evacuation.
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by April 9, 2007.
You may send comments by any of the following methods:
• DOT Docket Web Site: Go to
• Fax: (202) 493-2251.
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal:
You may examine the AD docket on the Internet at
Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4145; fax: (816) 329-4090.
The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and
This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Ente Nazionale per l'Aviazione Civile (ENAC), which is the aviation authority for Italy, has issued AD N. 2004-522, Rev. 0, dated December 20, 2004 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
The backrest recline of pilot and copilot seats requires the removal of a “quick release pin” not correctly indicated in the AFM and not ready detectable by the passengers. Moreover the operation of removal the device is difficult. This cause difficulty or disables the access to the escapes of the cabin in case of emergency evacuation.
The MCAI requires:
Carry out the operational checks/inspection/modification:
You may obtain further information by examining the MCAI in the AD docket.
Vulcanair S.p.A. has issued P68 Variants Mandatory Service Bulletin No. 128, dated October 12, 2004. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 15 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,400, or $160 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by April 9, 2007.
(b) None.
(c) This AD applies to all Models P68C, P68 Observer 2, and P68TC Observer airplanes, serial numbers 412 through 424 (except 418), 429, 434, and 435, certificated in any category.
(d) Air Transport Association of America (ATA) Code 51: Structures.
(e) The mandatory continuing airworthiness information (MCAI) states:
The backrest recline of pilot and copilot seats requires the removal of a “quick release pin” not correctly indicated in the AFM and not ready detectable by the passengers. Moreover the operation of removal the device is difficult. This cause difficulty or disables the access to the escapes of the cabin in case of emergency evacuation.
(f) Unless already done, do the following actions within 30 days after the effective date of this AD:
(1)
(2)
(3)
(4)
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI Ente Nazionale per l'Aviazione Civile (ENAC), AD N. 2004-522, Rev. 0, dated December 20, 2004; and Vulcanair S.p.A. P68 Variants Mandatory Service Bulletin No. 128, dated October 12, 2004, for related information.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede an existing airworthiness directive (AD) for certain Turbomeca Arriel 1B, 1D, 1D1, and 1S1 turboshaft engines. That AD currently requires initial and repetitive position checks of the gas generator 2nd stage turbine blades on all Turbomeca Arriel 1B, 1D, 1D1, and 1S1 turboshaft engines. That AD also currently requires initial and repetitive replacements of 2nd stage turbines on 1B, 1D, and 1D1 engines only. This proposed AD would require adding a 3,000 hour life limit to Arriel 1B 2nd Stage Turbine Blades. This proposed AD results from reports of failures of second stage blades. We are proposing this AD to prevent failures of the 2nd stage turbine blades, which could result in uncommanded in-flight engine shutdown, and subsequent forced autorotation landing or accident.
We must receive any comments on this proposed AD by May 8, 2007.
Use one of the following addresses to comment on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Contact Turbomeca, 40220 Tarnos, France; telephone (33) 05 59 74 40 00, fax (33) 05 59 74 45 15, for the service information identified in this proposed AD.
Christopher Spinney, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone (781) 238-7175, fax (781) 238-7199.
We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the docket that contains the proposal, any comments received and any final disposition in person at the DMS Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in
On August 8, 2006, the FAA issued AD 2006-02-08R1, Amendment 39-14721 (71 FR 46390, August 14, 2006). That AD requires initial and repetitive position checks of the gas generator 2nd stage turbine blades on all Turbomeca Arriel 1B, 1D, 1D1, and 1S1 turboshaft engines, and initial and repetitive replacements of 2nd stage turbines on 1B, 1D, and 1D1 engines only. The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition might exist on Turbomeca, Arriel 1B (modified per TU 148), 1D, 1D1, and 1S1 turboshaft engines. The DGAC advises that sixteen cases of release of gas generator 2nd stage turbine blades occurred in service, with full containment of debris. These events resulted in uncommanded in-flight engine shutdowns. Although terminating action is still unavailable, mandatory checks of the turbine blades and replacement of the turbine are being required in order to reduce the probability of an uncommanded in-flight engine shutdown. That AD requires initial and repetitive position checks of the gas generator 2nd stage turbine blades on all Turbomeca Arriel 1B, 1D, 1D1, and 1S1 turboshaft engines. That AD also requires initial and repetitive replacements of 2nd stage turbines on 1B, 1D, and 1D1 engines only. That condition, if not corrected, could result in uncommanded in-flight engine shutdown.
Since we issued that AD, the European Aviation Safety Agency (EASA) informed us that they have received reports of additional failures of the 2nd stage turbine blades. The debris from the failures was fully contained. The failures were caused by:
• Deterioration of 2nd stage nozzle guide vanes (NGV2) modified to TU197,
• Aerodynamic excitation from deteriorated NGV2,
• Excessive temperature on the fir-tree roots, and
• 2nd stage turbine blades modified to TU204.
We have reviewed and approved the technical contents of Turbomeca Alert Service Bulletins (ASBs) A292 72 0807, Update 1, dated October 26, 2006, for Arriel 1B post-TU 148; ASB A292 72 0809, dated October 4, 2005, for Arriel 1D and 1D1; and ASB A292 72 0810, for Arriel 1S1, all dated March 24, 2004. These ASBs describe procedures for initial and repetitive position checks of the 2nd stage turbine blades, and replacement of 2nd stage turbines on 1B and 1D1 engines only. The EASA classified these ASBs as mandatory and issued airworthiness directive 2007-0018, dated January 15, 2007, in order to ensure the airworthiness of these Turbomeca Arriel 1B, 1D, 1D1, and 1S1 turboshaft engines in the European Union.
This engine model is manufactured in France and is type certificated for operation in the United States under the provisions of Section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. In keeping with this bilateral airworthiness agreement, the EASA, which is the airworthiness authority for the European Union, kept us informed of the situation described above. We have examined the findings of the EASA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which would require:
• Initial and repetitive position checks of the 2nd stage turbine blades on Turbomeca Arriel 1B, 1D, 1D1, and 1S1 turboshaft engines.
• Replacement of 2nd stage turbines on 1B and 1D1 engines only.
• Initially replacing 2nd stage turbines in Arriel 1B, 1D, and 1D1 turboshaft engines.
The proposed AD would require that you do these actions using the service information described previously.
We estimate that this proposed AD revision would affect 721 engines installed on helicopters of U.S. registry. We also estimate that it would take about 2 work-hours per engine to inspect all 721 engines and 40 work-hours per engine to replace about 587 2nd stage turbines on 1B and 1D1 engines, and that the average labor rate is $80 per work-hour. Required parts would cost about $3,200 per engine. Based on these figures, we estimate the total cost of the proposed AD revision to U.S. operators to be $3,905,240.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-14721 (71 FR 46390, August 14, 2006) and by adding a new airworthiness directive, to read as follows:
(a) The Federal Aviation Administration (FAA) must receive comments on this airworthiness directive (AD) action by May 8, 2007.
(b) This AD supersedes AD 2006-02-08R1, Amendment 39-14721.
(c) This AD applies to Turbomeca Arriel 1B engines fitted with 2nd stage turbine modification TU 148, and Arriel 1D, 1D1, and 1S1 engines. Arriel 1B engines are installed on, but not limited to, Eurocopter France AS-350B and AS-350A “Ecureuil” helicopters. Arriel 1D engines are installed on, but not limited to, Eurocopter France AS-350B1 “Ecureuil” helicopters. Arriel 1D1 engines are installed on, but not limited to, Eurocopter France AS-350B2 “Ecureuil” helicopters. Arriel 1S1 engines are installed on, but not limited to, Sikorsky Aircraft S-76A and S-76C helicopters.
(d) This AD results from reports of failures of second stage blades. We are issuing this AD to prevent failures of the 2nd stage turbine blades, which could result in uncommanded in-flight engine shutdown, and subsequent forced autorotation landing or accident.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(f) Do an initial relative position check of the 2nd stage turbine blades using the Turbomeca mandatory alert service bulletins (ASBs) specified in the following Table 1. Do the check before reaching any of the intervals specified in Table 1 or within 50 hours time-in-service after the effective date of this AD, whichever occurs later.
(g) Recheck the relative position of 2nd stage turbine blades at the TSLRPC intervals specified in Table 1 of this AD, using the mandatory ASBs indicated.
(h) Relative position checks of 2nd stage turbine blades done using Turbomeca Service Bulletin A292 72 0263, Update 1, 2, 3, or 4, or A292 72 0807, dated March 24, 2004, comply with the initial requirements of paragraph (f) of this AD.
(i) Initially replace the 2nd stage turbine with a new or overhauled 2nd stage turbine as follows:
(1) Before accumulating 1,500 hours TSN or TSO on the module for Arriel 1D and 1D1 engines.
(2) Before accumulating 2,200 hours TSN or TSO on the module or 3,000 total hours TSN on the 2nd stage turbine blades, whichever occurs first, for Arriel 1B engines.
(j) Thereafter, replace the 2nd stage turbine with a new or overhauled 2nd stage turbine within every 1,500 hours TSN or TSO on the module for Arriel 1D and 1D1 engines, and within every 2,200 hours TSN or TSO on the module or 3,000 total hours TSN on the 2nd stage turbine blades, for Arriel 1B engines.
(k) Do the following to overhauled 2nd stage turbines, referenced in paragraphs (i) and (j) of this AD:
(1) You must install new blades in the 2nd stage turbines of overhauled Arriel 1D and 1D1 engines.
(2) You may install either overhauled blades with fewer than 3,000 total hours TSN or new blades in the 2nd stage turbines of overhauled Arriel 1B engines.
(l) All 2nd stage turbines, including those that are new or overhauled, must continue to comply with relative position check requirements of paragraphs (f) and (j) of this AD.
(m) The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(n) The EASA airworthiness directive 2007-0018, dated January 15, 2007, also addresses the subject of this AD.
(o) Contact Christopher Spinney, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
A CAP10B aircraft experienced a reduced elevator deflection by about 13° due to an incorrect routing of the Push To Talk (PTT) wire bundle and improperly secured connectors which impeded the complete and free movement of the control stick.
We must receive comments on this proposed AD by April 9, 2007.
You may send comments by any of the following methods:
• DOT Docket Web Site: Go
• Fax: (202) 493-2251.
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal:
You may examine the AD docket on the Internet at
Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4145; fax: (816) 329-4090.
The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and
This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No: 2007-0014, dated January 12, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
A CAP10B aircraft experienced a reduced elevator deflection by about 13° due to an incorrect routing of the Push To Talk (PTT) wire bundle and improperly secured connectors which impeded the complete and free movement of the control stick.
The MCAI requires:
Actions specified in this AD are intended to inspect, detect and correct any discrepancy on the PTT electrical circuit connectors and wires that could lead to a reduction of the control stick movements.
You may obtain further information by examining the MCAI in the AD docket.
APEX Aircraft has issued Mandatory Service Bulletin No. 050605, dated October 17, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 31 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,480, or $80 per product.
In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $90, for a cost of $330 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by April 9, 2007.
(b) None.
(c) This AD applies to Model CAP 10 B airplanes, serial numbers 001 through 282, fitted with major change 000302 (wood-carbon wings), that are certificated in any category.
(d) Air Transport Association of America (ATA) Code 27: Flight Controls.
(e) The mandatory continuing airworthiness information (MCAI) states:
A CAP10B aircraft experienced a reduced elevator deflection by about 13° due to an incorrect routing of the Push To Talk (PTT) wire bundle and improperly secured connectors which impeded the complete and free movement of the control stick.
(f) Unless already done, do the following actions:
(1) Within the next 50 hours time-in-service after the effective date of this AD, inspect the wire routing for the proper location and attachment of the connectors as detailed in the accomplishment instructions of APEX Aircraft Mandatory Service Bulletin No. 050605, dated October 17, 2006.
(2) Before further flight, if a defect or discrepancy is found during the inspection in paragraph (f)(1) of this AD, modify the wire bundle and connectors routing as detailed in the accomplishment instructions of APEX Aircraft Mandatory Service Bulletin No. 050605, dated October 17, 2006.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI European Aviation Safety Agency AD No: 2007-0014, dated January 12, 2007; and APEX Aircraft Mandatory Service Bulletin No. 050605, dated October 17, 2006, for related information.
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve a request to amend the Missouri State Implementation Plan (SIP) to include revisions to the St. Louis Solvent Metal Cleaning rule. The revisions to this rule include consolidating exemptions in the applicability section, adding new exemptions, adding definitions of new and previously undefined terms, and clarifying rule language regarding operating procedure requirements for spray gun cleaners and air-tight and airless cleaning systems. This revision will ensure consistency between the state and the Federally-approved rules.
Comments on this proposed action must be received in writing by April 9, 2007.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-0083 by one of the following methods:
1.
2.
3.
4.
Please see the direct final rule which is located in the Rules section of this
Amy Algoe-Eakin at (913) 551-7942, or by e-mail at
In the final rules section of the
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a revision to the Kansas State Implementation Plan (SIP) for the purpose of approving the Kansas Department of Health and Environment's (KDHE) actions to address the “good neighbor” provisions of the Clean Air Act Section 110(a)(2)(D)(i). These provisions require each state to submit a SIP that prohibits emissions that adversely affect another state's air quality through interstate transport. KDHE has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants. These include prohibiting significant contribution to downwind nonattainment of the National Ambient Air Quality Standards (NAAQS), interference with maintenance of the NAAQS, interference with plans in another state to prevent significant deterioration of air quality, and efforts of other states to protect visibility. The requirements for public notification were also met by KDHE.
Comments on this proposed action must be received in writing by April 9, 2007.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-0141 by one of the following methods:
1.
2. E-mail:
3. Mail: Michael Jay, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
4. Hand Delivery or Courier. Deliver your comments to Michael Jay, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8 a.m. to 4:30 p.m., excluding legal holidays.
Please see the direct final rule that is located in the Rules section of this
Michael Jay at (913) 551-7460, or by e-mail at
In the final rules section of the
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve a revision to the Missouri State Implementation Plan (SIP) and Operating Permits Program. EPA proposes to approve a revision to the Missouri rule entitled “Submission of Emission Data, Emission Fees, and Process Information.” This revision will ensure consistency between the state and the Federally-approved rules.
Comments on this proposed action must be received in writing by April 9, 2007.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2007-0041 by one of the following methods:
1.
2. E-mail:
3. Mail: Amy Algoe-Eakin, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
4. Hand Delivery or Courier. Deliver your comments to: Amy Algoe-Eakin, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8 a.m. to 4:30 p.m., excluding legal holidays.
Please see the direct final rule which is located in the Rules section of this
Amy Algoe-Eakin at (913) 551-7942, or by e-mail at
In the final rules section of the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of an amendment to a fishery management plan; request for comments.
NMFS announces that the Pacific Fishery Management Council (Pacific Council) has submitted Amendment 1 to the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP) for review by the Secretary of Commerce. Amendment 1, in combination with the Western Pacific Fishery Management Council's (Western Pacific Council) proposed Amendment 14, address overfishing of bigeye tuna (
Comments on Amendment 1 must be received by May 8, 2007.
You may submit comments on this action identified by [I.D. 0220807A], by any of the following methods:
• E-mail:
• Federal e-Rulemaking portal:
• Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802.
• Fax: (562)980-4047
Copies of Amendment 1 are available by contacting Donald O. McIsaac, Executive Director, Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 200, Portland, OR 97220-1384. Copies of Amendment 14 to the Pelagics FMP, and the Environmental Assessment (EA) for Amendment 14, which addresses potential effects for actions proposed under both Amendments 1 and 14, may be obtained by contacting Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813.
Heidi Taylor, Sustainable Fisheries Division, NMFS, at 562-980-4039, or Christopher Dahl, Pacific Fishery Management Council, at 503-820-2280.
The HMS fishery in the Exclusive Economic Zone off the West Coast is managed under the HMS FMP, which was developed by the Pacific Council pursuant to the Magnuson-Stevens Act. The HMS FMP was approved by the Secretary of Commerce and implemented by regulation at 50 CFR part 660.
The Magnuson-Stevens Act requires each regional fishery management council to submit any amendment to an FMP to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an amendment to an FMP, publish notification in the
Amendment 1 to the HMS FMP was developed by the Pacific Council, in coordination with the development of Amendment 14 to the Western Pacific Council's Pelagics FMP. Both Amendments have been submitted to NMFS for review under the Magnuson-Stevens Act, 16 U.S.C. 1801
On December 15, 2004, NMFS notified both Councils that overfishing was occurring on bigeye tuna Pacific-wide. As required by the Magnuson-Stevens Act, the Councils were requested to take appropriate action to end overfishing. The Pacific Council, having fisheries for bigeye tuna in the EPO only, and the Western Pacific Council, having fisheries in both the EPO and the WCPO, worked to develop an international strategy that addresses overfishing Pacific-wide.
According to the guidelines for National Standard 1 of the Magnuson-Stevens Act, fishery stock status is assessed to determine if the stock is
The Pacific Council adopted Amendment 1 to the HMS FMP at its November 2006 Council meeting following a lengthy process that fully considered various drafts of an alternatives analysis. The Pacific Council also considered actions taken by the Western Pacific Council, input from Council advisory bodies, and public comment before adopting Amendment 1. Because bigeye tuna are targeted by many nations, including the United States, and taking into consideration the comparatively small proportion of total fishing mortality on the stock contributed by the United States, no Federal regulations to limit fishing effort by West Coast vessels managed under the HMS FMP have been proposed. Rather, Amendment 1 would revise the HMS FMP to include a multilateral strategy where the Pacific Council would transmit recommendations for the immediate reduction in fishing mortality of bigeye tuna in the EPO to the U.S. delegation to the IATTC. A similar international strategy has been proposed in Amendment 14 for the WCPO, and thus any combined fishery conservation and management recommendation from the Pacific and Western Pacific Councils to the relevant RFMOs, will end overfishing of bigeye tuna Pacific-wide.
Amendment 1 outlines general principals that would be adhered to when proposing management measures to the U.S. delegation to the IATTC intended to meet the goal of ending overfishing. For example, conservation and management recommendations would focus on fisheries with the greatest impacts and on regions with the highest catch rate and on spawning areas; reducing surplus capacity; restrict the use of purse seines fishing on fish aggregating devices; and support the identification of those measures that will have a measurable impact on bigeye tuna conservation.
The Pacific Council would develop management goals, to the extent practicable, that are consistent with IATTC staff scientist recommendations. Specifically, Amendment 1 would recommend that fishing mortality on Pacific bigeye be reduced immediately: (1) in the EPO, by longline vessels by 30 percent and by purse seine fishing vessels by 38 percent from 2003-2004 fishing levels; and (2) in the WCPO, by longline and purse seine vessels by 20 percent from 2001-2003 levels for each gear type. However, as part of its strategy the Pacific Council recognizes that conservation and management goals may need to be revised to reflect changes in stock status and the best available science. These recommendations would be communicated to the relevant U.S. delegations to RFMOs and thus comprise the international strategy to end overfishing of bigeye tuna Pacific-wide.
Amendment 1 is consistent with section 406 of the Magnuson-Stevens Reauthorization Act (MSRA, Public Law 109-479), which added section 304(i) to the Magnuson-Stevens Act. This section requires the Secretary to, among other things, in cooperation with the Secretary of State, immediately take appropriate action at the international level to end overfishing for fisheries that NMFS has determined: (a) to be overfished or approaching a condition of being overfished due to excessive international fishing pressure, and (b) for which there are no management measures to end overfishing under an international agreement to which the United States is a party. NMFS interprets “no management measures” to mean the absence of management measures that are adequate to stop overfishing for purposes of the Magnuson-Stevens Act and its implementing regulations. NMFS has made a determination that both of these conditions are present, and therefore subsection 304(i) governs the MSA mandate to end overfishing in the case of Pacific bigeye tuna.
Pacific bigeye tuna are fished in waters under U.S. jurisdiction, waters under the jurisdiction of other nations, and on the high seas by foreign fishing fleets. U.S. fisheries account for only a small percentage of the Pacific bigeye tuna harvests. Thus, fishing mortality of the bigeye stock stems predominantly from non-U.S. fleets in the region, and any unilateral management to end overfishing by the U.S. would have a proportionally small effect in terms of reducing fishing mortality and ending overfishing.
Since 1998, the U.S. has addressed the relative impacts of U.S. fishing on Pacific bigeye tuna by implementing annual or multi-annual conservation and management resolutions under the Tuna Conventions Act (16 U.S.C. 951-961 and 971
Existing HMS and Pelagics FMP measures for bigeye tuna have been implemented to address the relative impact of U.S. fishing vessels within the meaning of the MSRA section 304(i)(2)(A). Depending on the region, these measures include limited access programs, mandatory data collection, scientific observers, vessel size limits and gear specifications, and a vessel monitoring system.
Amendment 1 would also reorganize the original HMS FMP in a manner that calls attention to elements specific to the FMP and would move much of the lengthy background material in the original FMP/FEIS to a series of appendices. Amendment 1 thus includes new chapters and headings for the FMP. Cross references to chapters, sections, tables, and figures would be renumbered to reflect the reorganization proposed without referencing such changes in the text. The preface of Amendment 1 further explains the reorganization of the HMS FMP. The original FMP/FEIS will remain a publicly available document.
Though Amendment 1 incorporates elements of Amendment 14, it does not require NMFS to promulgate implementing regulations. NMFS seeks public comment on Amendment 1, which must be received by May 8, 2007 to be considered by NMFS in the decision whether to approve, partially approve, or disapprove the Amendment 1.
U.S.C. 1801
Agricultural Research Service, USDA.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, 5 U.S.C. App. 2, the United States Department of Agriculture announces a meeting of the Advisory Committee on Biotechnology and 21st Century Agriculture (AC21).
The meeting dates are March 26, 2007, 8 a.m. to 5 p.m., and March 27, 2007, 8 am to 4 pm.
Room 107A, USDA Jamie L. Whitten Building, 12th Street and Jefferson Drive, SW., Washington, DC 20250.
Michael Schechtman, Telephone (202) 720-3817.
The fifteenth meeting of the AC21 has been scheduled for March 26-27, 2007. The AC21 consists of 19 members representing the biotechnology industry, international plant genetics research, farmers, food manufacturers, commodity processors and shippers, environmental and consumer groups, and academic researchers. In addition, representatives from the Departments of Commerce, Health and Human Services, and State, and the Environmental Protection Agency, the Council on Environmental Quality, the Office of the United States Trade Representative, and the National Association of State Departments of Agriculture serve as “ex officio” members. At this meeting, new Committee members will be introduced, and the Committee plans to continue work to address the question, “In an increasingly complex marketplace, what issues should USDA consider regarding coexistence among increasingly diverse agricultural systems?” The work at the meeting will include consideration of presentations from external speakers as well as review of a compilation of draft submissions on a series of subtopics for a paper on the subject.
Background information regarding the work of the AC21 will be available on the USDA Web site at
Members of the public should enter the building through the Jefferson Drive entrance. Requests to make oral presentations at the meeting may be sent to Michael Schechtman, Designated Federal Official, Office of the Deputy Secretary, USDA, 202 B Jamie L. Whitten Federal Building, 12th Street and Jefferson Drive, SW., Washington, DC 20250, Telephone (202) 720-3817; Fax (202) 690-4265; E-mail Michael.schechtman@ars.usda.gov. On March 26, 2007, if time permits, reasonable provision will be made for oral presentations of no more than five minutes each in duration. Written requests to make oral presentations at the meeting must be received by the contact person identified herein at least three business days before the meeting. The meeting will be open to the public, but space is limited. If you would like to attend the meetings, you must register by contacting Ms. Debra Lindsay at (202) 720-4074, by fax at (202) 720-3191 or by E-mail at debra.lindsay@ars.usda.gov at least five business days prior to the meeting. Please provide your name, title, business affiliation, address, and telephone and fax numbers when you register. If you require a sign language interpreter or other special accommodation due to disability, please indicate those needs at the time of registration.
Animal and Plant Health Inspection Service, USDA.
New information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to initiate a new information collection activity for Tribal participants in premises registration for the National Animal Identification System.
We will consider all comments that we receive on or before May 8, 2007.
You may submit comments by either of the following methods:
For information on an information collection for Tribal participants in premises registration for the National Animal Identification System, contact Dr. John Wiemers, National Animal Identification Staff, VS, 2100 Lake Storey Road, Galesburg, IL 61401; (309) 344-1942. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
The first component of the program, premises registration, is well underway and the second component, animal identification, is being implemented for several species. The third component, animal tracing, is currently under development with USDA's State and industry partners. Industry, through private systems, and States will manage the animal tracking databases that maintain the movement records of animals. These information systems will provide the location of a subject animal and the records of other animals that the subject animal came into contact with at each premises. Participation in any component of the program is voluntary.
Premises registration, the foundation of NAIS, is critical to rapidly detecting and evaluating the scope of animal disease outbreaks, controlling emergency program budgets, and improving emergency response efficiency. Having the ability to plot locations within a radius of affected premises will help determine the potential magnitude of a disease event and the resources that are needed to adequately respond in an effective manner. This can be accomplished only if the affected premises and other premises in the area have been registered. All 50 States, 60 Native American Tribes, and 2 territories are currently participating in premises registration. More than 350,000 premises have been registered to date.
Several systems are available to States and Tribes for use in registering premises: The Standardized Premises Registration System provided by USDA, Compliant Premises Registration Systems developed by States or third parties and evaluated by USDA as compliant, and now a Tribal Premises Registration System provided by USDA.
USDA is pleased with the cooperative working relationships we have with Tribes participating in the development and implementation of the NAIS. Meeting the needs of Native Americans has been a priority for USDA since the inception of the NAIS, and we have sought to have Tribal representatives involved in the development of the system. Most recently, USDA partnered with Tribal representatives in the development and testing of the Tribal Premises Registration System that is now available for use.
APHIS will provide the opportunity for participating Tribes to designate, by completing a form, which premises registration system they prefer to use, and will use the form to initiate the process for Tribes to have access to their system of choice. The form will be made available by the Tribal liaison for the NAIS program and on the NAIS Web site (
We are asking the Office of Management and Budget to approve our use of this information collection activity for 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
New information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to initiate a new information collection for Plant Protection and Quarantine Customer Satisfaction Surveys.
We will consider all comments that we receive on or before May 8, 2007.
You may submit comments by either of the following methods:
For information on the Plant Protection and Quarantine customer satisfaction surveys, contact Ms. Nancy Heffernan, Management Analyst, Permits, Registrations, Imports and Manuals, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737; (301) 734-7491. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
To remain in compliance with Clause 8.2.1 (Customer Satisfaction) of the ISO 9001:2000 standard, PHP must measure the performance of its quality management system by monitoring customer perception of its service. PHP has determined that the best method for obtaining this information is through the use of performance measurement surveys. Customers will have the option of completing the surveys by telephone, e-mail, or facsimile, or through an automated voice response system. PHP will use responses derived from these surveys to develop new processes and modify existing procedures to provide customers with the optimal level of service.
We are asking OMB to approve our use of these information collection activities for 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Done in Washington, DC, this 5th day of March 2007.
Forest Service, USDA.
Proposed directives; request for comment.
The Forest Service proposes to amend internal agency directives regarding travel management to make them consistent with and facilitate implementation of the agency's final travel management rule (36 CFR part 212), “Travel Management; Designated Routes and Areas for Motor Vehicle Use” (70 FR 68264, November 9, 2005) (travel management rule). The travel management rule requires each Forest Service administrative unit or Ranger District to designate those roads, trails, and areas open to motor vehicle use.
Changes to existing travel management directives are needed to provide guidance on implementation of the travel management rule, to conform terminology to the rule, to provide consistent direction on the process of designating roads, trails, and areas for motor vehicle use, and to integrate direction on roads analysis with direction on travel planning.
The proposed directives would consolidate direction for travel planning for both roads and trails in Forest Service Manual (FSM) 7710 and Forest Service Handbook (FSH) 7709.55.
The proposed directives expand the scope of the current roads analysis process to encompass trails and areas designated for motor vehicle use, while streamlining some of the procedural requirements involved.
Comments must be received in writing by May 8, 2007.
Send written comments to Travel Management Proposed Directives, Attention: LeRoy Schmitz, c/o USDA Forest Service Northern Region, P.O. Box 7669, Missoula, MT 59807; by delivery service to 200 East Broadway, Missoula MT 59807; by e-mail to
All comments, including names and addresses when provided, will be placed in the record and will be available for public inspection and copying. The public may inspect comments received on these proposed directives in the office of the Director of Engineering, USDA Forest Service Northern Region, 200 East Broadway, Missoula, MT 59807, on business days between the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect comments are encouraged to call ahead at 406-329-3173 to facilitate entry into the building.
Joe Gallagher, Recreation and Heritage Resources Staff, (202) 205-0931.
On November 9, 2005, the Forest Service published the travel management rule, governing use of motor vehicles on National Forest System (NFS) lands. The travel management rule (36 CFR part 212, subpart B) requires each administrative unit or Ranger District to designate those roads, trails, and areas open to motor vehicle use by vehicle class and, if appropriate, by time of year. The travel management rule also requires designated roads, trails, and areas to be identified on a motor vehicle use map. After roads, trails, and areas have been designated and identified on a motor vehicle use map, motor vehicle use inconsistent with those designations is prohibited under 36 CFR 261.13.
The travel management rule combined regulations governing administration of the forest transportation system and regulations governing use of motor vehicles off NFS roads into part 212, Travel Management, covering the use of motor vehicles on NFS lands. The travel management rule implements Executive Order (E.O.) 11644 (February 8, 1972), “Use of Off-Road Vehicles on the Public Lands,” as amended by E.O. 11989 (May 24, 1977).
Nationally, the Forest Service manages approximately 287,000 miles of NFS roads and 32,000 miles of NFS trails that are open to motor vehicle use. Other NFS roads and NFS trails are managed for nonmotorized uses or are not open to general public use. Motor vehicle routes in the forest transportation system range from paved roads designed for passenger cars to single-track trails used by dirt bikes. Many roads designed for high-clearance vehicles (such as logging trucks and sport utility vehicles) are also used by all-terrain vehicles (ATVs) and other off-highway vehicles (OHVs) not normally found on city streets. Almost all NFS trails serve nonmotorized users such as hikers, bicyclists, and equestrians, alone or in combination with motorized users. NFS roads often accept nonmotorized use as well.
In addition to this managed system of NFS roads and NFS trails, many National Forests contain user-created roads and trails. These routes are concentrated in areas where cross-country travel by motor vehicles has been allowed and sometimes include dense, braided networks of criss-crossing trail. There has been no comprehensive national inventory of user-created routes (and continuing proliferation of these routes has made a definitive inventory difficult), but they are estimated to number in the tens of thousands of miles.
Wilderness areas are closed to motor vehicles by statute. On some National Forests and portions of others, motor vehicle use is restricted by order to designated routes and areas. On other National Forests, motor vehicle use is not restricted to designated routes and areas.
The Forest Service provides internal direction to field units through its directives system, consisting of the FSM and FSH. Directives provide guidance to field units in implementing programs established by statute and regulation. Forest Service directives establish agency policy for delegations of authority, consistent definitions of terms, clear and consistent interpretation of regulatory language, and standard processes.
The travel management rule will be implemented on administrative units and Ranger Districts, each of which will complete the designation process and publish a motor vehicle use map identifying those NFS roads, NFS trails, and areas on NFS lands open to motor vehicle use. The Forest Service hopes to complete that task on all units of the NFS within 4 years.
One of the main objectives of the travel management rule is to provide a consistent procedural framework and consistent terminology for travel management decisions made at the local level. Current policy in the Forest Service directives system was written prior to the travel management rule and reflects previous travel management direction and terminology. For example, current directives use the terms “classified road” and “unclassified road,” which were removed by the travel management rule. Until this policy is updated, inconsistent terminology may result in confusion and inconsistent application of the travel management rule. The proposed directives are also needed to provide a procedural approach to implementing the travel management rule in conformance with agency policy on land management planning, environmental analysis, roads analysis, and other requirements of law and policy.
While some of the proposed changes simply reiterate direction in the travel management rule, other proposed changes provide clarifying instructions, delegations of authority, or other guidance on implementing the travel management rule.
To ensure timely and consistent implementation of the travel management rule, the Forest Service is proposing to amend travel management directives in FSM 2350, 7700, and 7710 and FSH 7709.55. Many comments on the proposed travel management regulation requested an opportunity for public input in development of agency directives implementing the travel management rule, and these proposed directives are expected to garner substantial public interest. Pursuant to 36 CFR part 216 and to build public understanding of and participation in travel management decisions, the Forest Service is seeking comment on these proposed directives. The proposed directives are available for review on the Forest Service Web site at
The proposed directives would conform agency directives to the travel management rule. Many of the proposed changes to the directives simply reiterate requirements of the travel management rule or update terminology based on the travel management rule. The Forest Service is not proposing to revise the travel management rule. Reviewers may find it helpful to become familiar with the travel management rule before reviewing these proposed directives.
The proposed directives would consolidate Forest Service policy for travel management into FSM 7700. This chapter, now entitled “Transportation System,” would be renamed “Travel Management” to be consistent with the new title of 36 CFR part 212. FSM 7700, Zero Code, would be amended to contain new authorities and responsibilities. FSM 7710, “Travel Planning,” would be amended to provide direction on travel analysis and route and area designation. The “Travel Planning Handbook,” FSH 7709.55, would be revised to integrate roads analysis into the new travel management process. Directives governing road maintenance and operations would remain in FSM 7730, “Operations and Maintenance,” and FSH 7709.59, the Road System Operations Handbook.
Within FSM 2300, “Recreation Management,” FSM 2350, “Trail, River, and Similar Recreation Opportunities,” would be amended to consolidate travel planning direction for motor vehicle use, mirroring the consolidation of regulations formerly in 36 CFR parts 212 and 295. Directives governing trail maintenance and operations would remain in FSM 2350 and FSH 2309.18.
A key objective of the proposed directives is to integrate roads analysis, as required by 36 CFR part 212, subpart A, with the travel management process required by 36 CFR part 212, subpart B, to avoid duplicative planning processes. On January 12, 2001, the Forest Service published final regulations at 36 CFR part 212, “Administration of the Forest Development Transportation System; Prohibitions; Use of Motor Vehicles Off Forest System Roads; Final Rule” (roads rule), and “Forest Service Transportation; Final Administrative Policy; Notice” (roads policy) (66 FR 3216). The roads rule requires each administrative unit of the NFS to “identify the minimum road system needed for safe and efficient travel and for administration, utilization, and protection of National Forest System lands * * * incorporating a science-based roads analysis at the appropriate scale” (36 CFR 212.5(b)). The new travel management rule requires each administrative unit or Ranger District of the NFS to designate those roads, trails, and areas open to motor vehicle use. The Forest Service believes that a single, integrated analysis can be used to fulfill both requirements.
The roads policy (FSM 7700 and 7710) established Publication FS-643, Roads Analysis: Informing Decisions About Managing the National Forest Transportation System (August 1999), as the science-based roads analysis to be followed when implementing the roads rule. The roads policy also established specific requirements for the use of roads analysis at various scales prior to making travel management decisions involving NFS roads. The proposed changes in the Forest Service directives would move the six-step analysis described in FS-643 to FSH 7709.55, Chapter 20, and rename it “Travel Analysis” to reflect its broader application in informing travel management decisions regarding motor vehicle use on NFS roads, on NFS trails, and in areas on NFS lands. The Forest Service also proposes to change its directives to streamline the travel analysis process and to provide the responsible official additional discretion in determining the scope and scale of travel analysis.
In addition to the section-by-section discussion that follows, the digest section of the proposed directives enumerates the proposed changes from existing directives.
FSM 2352, “Road Recreation Management,” and FSM 2355, “Off-Road Vehicle Use Management,” would be removed. To ensure consistent implementation of the travel management rule, direction for travel planning, travel management decisions, and designation of roads, trails, and areas for motor vehicle use would be moved to FSM 7710, “Travel Planning,” and would be revised to be consistent with 36 CFR part 212.
FSM 2353, “National Forest System Trails,” would be revised to conform with the terminology and contents of 36 CFR part 212. FSM 2353.28, “Management of Motor Vehicle Use,” would be added to provide guidance for management of NFS trails designated for motor vehicle use. Other proposed technical corrections not directly associated with the travel management rule would update FSM 2353 to conform with changes in laws, regulations, and policy that have occurred since this section was last updated. Examples include the 2005 planning rule, the Forest Service's national Infrastructure database, and changes in the Forest Service's organizational structure and accounting practices.
FSM 7700, Zero Code, sets general direction applicable to the entire chapter, including FSM 7710 through 7740. The series title would be changed from “Transportation System” to “Travel Management.” In general, the Zero Code enumerates the agency's authority to establish policy, sets out the agency's objectives and general policy for travel management, provides for delegation of authority to agency officials, and contains definitions for terms used throughout the chapter. FSM 7700 concludes by identifying the handbooks supplementing the direction in that chapter.
In FSM 7701, “Authority,” the references to 36 CFR part 212 would be updated to reflect the changes effected by the travel management rule and to include references to E.O. 11644.
FSM 7702, “Objectives,” would be updated to reflect the objectives of the travel management rule: to manage motor vehicle use within the capabilities of the land and within available agency resources; to provide a wide range of recreation experiences for NFS visitors; to address visitor safety; and to involve the public and coordinate with relevant governmental entities in designating roads, trails, and areas for motor vehicle use. The proposed directives would add an objective to make use of transit and intermodal transportation systems.
FSM 7703, “Policy,” would be updated to reflect new regulatory requirements in 36 CFR part 212 and to provide for consistent interpretation of those requirements. In general, the proposed directives would require the responsible official to provide a transportation system consistent with the desired conditions described in the applicable land management plan and to coordinate with other transportation officials and State, local, and tribal governments when making travel management decisions.
FSM 7703.1, “Travel Management,” would provide general direction for designating routes and areas. FSM 7703.1 would reiterate the regulatory requirements at 36 CFR part 212,
FSM 7703.2, “Management Opportunities,” would require travel analysis to be based on a complete inventory of NFS roads and NFS trails. A complete inventory of user-created routes would not be required. However, responsible officials would be required to work with the public to identify which user-created routes might be suitable for inclusion in the forest transportation system. FSM 7703.2 would require consideration of the full spectrum of motorized and nonmotorized recreation opportunities, so that designation results in an appropriate mix of recreational activities that minimize conflicts among uses. Responsible officials would be encouraged to consider the availability of resources for maintenance and administration before adding routes to the forest transportation system. Grants, agreements, and volunteers would be considered in this evaluation. Lastly, the requirement that travel management decisions be informed by travel analysis would be restated and clearly established as policy.
FSM 7703.22, “Motor Vehicle Use Off Designated Roads and Trails and Outside Designated Areas,” would reiterate the regulatory provision that once designation is complete on an administrative unit or Ranger District and designated routes and areas are identified on a motor vehicle use map, motor vehicle use off the designated system or inconsistent with the designations will be prohibited by 36 CFR 261.13. Responsible officials would be advised to apply provisions for limited use of motor vehicles for big game retrieval or dispersed camping sparingly per 36 CFR 212.51(b).
FSM 7703.23, “Use by Over-Snow Vehicles and Non-Motorized Use,” would establish that responsible officials may use the provisions in 36 CFR 212.81 and 261.14 to allow, restrict, or prohibit use by over-snow vehicles on NFS roads, on NFS trails, and in areas on NFS lands.
FSM 7703.24, “Maintaining and Reconstructing Roads,” FSM 7703.25, “Decommissioning Roads,” and FSM 7703.26, “Adding Roads,” would not be changed.
FSM 7703.3, “Jurisdiction Over Forest Transportation Facilities,” would update terminology to match definitions in 36 CFR 212.1, to expand language to encompass jurisdiction over trails as well as roads, and to recognize that multiple agencies may share jurisdiction over a single road or trail.
FSM 7703.4, “Common Transportation Interests With Local Public Road Authorities and Other Landowners,” would incorporate minor wording changes to improve clarity and to correct the cross-reference to FSH 1509.11, section 23.
FSM 7703.5 would be renamed “Agreements for Road Operation and Maintenance,” and would add a cross-reference to FSM 2353.16.
FSM 7704, “Responsibility,” would establish delegations of authority for agency officials in travel management. Responsibilities for the Director of Recreation and Heritage Resources, Washington Office, would be added to reflect the integration in FSM 7700 of direction for motor vehicle use on NFS trails and in areas on NFS lands. Regional Foresters would have the responsibility to coordinate travel analysis and planning to promote consistency within States and between adjacent national forests. Forest Supervisors would be responsible for conducting travel analysis, making travel management decisions, monitoring motor vehicle use, and maintaining information about the forest transportation system.
FSM 7705, “Definitions,” would remove definitions for “classified roads,” “forest roads,” “new road construction,” “road improvement,” “road realignment,” “road reconstruction,” “temporary roads,” “traffic service level,” “transportation facility jurisdiction,” and “unclassified roads”; would add definitions for “administrative unit,” “all-terrain vehicle,” “area,” “arterial road,” “collector road,” “designated road, trail, or area,” “engineering analysis,” “engineering judgment,” “engineering report,” “forest road or trail,” “forest transportation atlas,” “forest transportation system,” “highway-legal vehicle,” “jurisdiction over a forest transportation facility,” “local road,” “motor vehicle,” “motor vehicle use map,” “motorcycle,” “motorized mixed use,” “National Forest System trail,” “non-highway-legal vehicle,” “off-highway vehicle,” “over-snow vehicle,” “private road,” “qualified engineer,” “road construction or reconstruction,” “route,” “temporary road or trail,” “terminal facility,” “trail,” “travel management atlas,” and “unauthorized road or trail”; and would revise definitions for “forest transportation facility,” “forest transportation system management,” “public road,” “road,” “road decommissioning,” “road maintenance,” and “road subject to the Highway Safety Act.”
FSM 7705, Exhibit 1, would be revised to reflect policy changes and changes in terminology and definitions.
FSM 7709 would be updated to reflect changes in the titles of FSH 7709.55 and 7709.59.
This chapter would be renamed “Travel Planning.” Existing direction for planning associated with the forest transportation system would be revised to reflect the regulatory changes in 36 CFR part 212. Directives implementing the roads policy (36 CFR part 212, subpart A) would be largely retained, but would be updated to reflect the use of travel analysis both to identify the minimum road system needed for safe and efficient travel and for administration, utilization, and protection of NFS lands and to inform travel management decisions related to designation of roads, trails, and areas for motor vehicle use. FSM 7710 also would provide responsible officials the discretion to allow, restrict, or prohibit use of over-snow vehicles on NFS lands per 36 CFR part 212, subpart C.
The travel planning chapter would be organized into 10 sections: FSM 7710 would establish authorities, objectives, policy, responsibilities, and definitions unique to this chapter. FSM 7711 would establish policy for developing and maintaining forest transportation system records, including motor vehicle use maps. FSM 7712 would establish policy for conducting travel analysis. FSM 7713 and 7719 would be reserved for future direction. FSM 7714 would establish requirements for developing road and trail management objectives. FSM 7715 would establish policy for making travel management decisions. FSM 7716 would establish policy for designating routes and areas for motor vehicle use. FSM 7717 would set policy for monitoring motor vehicle use and revising designations. FSM 7718 would describe policy for use of over-snow vehicles.
FSM 7710.1, “Authority,” and FSM 7710.2, “Objectives,” largely would reiterate the authorities and objectives established in FSM 7700, Zero Code.
FSM 7710.3, “Policy,” would establish policy for determining the minimum road system needed for safe and efficient travel and for administration, utilization, and protection of NFS lands. FSM 7710.3 would require appropriate travel analysis, environmental analysis, public involvement, and intergovernmental coordination to inform travel management decisions. The criteria in 36 CFR 212.55 would guide travel management decisions.
FSM 7710.04, “Responsibility,” would assign the Deputy Chief for the National Forest System the responsibility for approving schedules for completing designation on each administrative unit or Ranger District. The Director of Engineering, Washington Office, would be responsible for maintaining and publishing national standards for motor vehicle use maps. Regional Foresters would develop regional schedules for designation and promote coordination within States and between units. Forest Supervisors would be responsible for coordination with Federal, State, county, and local public road authorities; developing and maintaining travel management atlases and motor vehicle use maps; issuing temporary emergency closures under 36 CFR 212.52(b)(2); approving travel management decisions that designate roads for motorized mixed use; conducting travel analysis; conducting appropriate environmental analysis and making travel management decisions; designating NFS roads, NFS trails, and areas on NFS lands for motor vehicle use; revising designations when necessary; regulating over-snow vehicle use on NFS lands when appropriate; and monitoring motor vehicle use. District Rangers would approve road and trail management objectives and other duties as delegated by the Forest Supervisor.
FSM 7710.5, “Definitions,” would add definitions for “primitive area” and “travel management decision” and would remove the definition for “network analysis.”
FSM 7711, “Forest Transportation System Records,” would add policy for developing and maintaining a travel management atlas and making it available to the public. The travel management atlas consists of two parts: the motor vehicle use map and the forest transportation atlas. The forest transportation atlas consists of maps, inventories, and plans for forest transportation facilities and tabular and other data documenting the forest transportation system, including a road atlas. Travel management decisions would be documented in the travel management atlas. Proposed direction would allow storage of information on unauthorized and decommissioned routes, as well as routes in the forest transportation system.
FSM 7711.3 would specify the contents of motor vehicle use maps. Motor vehicle use maps would be widely available to the public and would be reprinted annually regardless of whether there are any changes to designations.
Per 36 CFR 212.5(b), FSM 7712, “Travel Analysis,” would require that the travel analysis in FSH 7709.55 incorporate a science-based roads analysis at the appropriate scale. Travel analysis would not be a decision-making process, but would be required to inform travel management decisions, including determining the minimum road system needed for safe and efficient travel and for administration, utilization, and protection of NFS lands. Travel analysis also could be used to inform decisions relating to management of over-snow vehicle use.
FSM 7712.1, “Scale and Scope of Travel Analysis,” would revise direction on the application of roads analysis and remove the reference to FS-643. Units would still be required to complete a travel analysis addressing broad-scale concerns, but responsible officials would have more discretion to determine the scale and scope at which to conduct travel analysis. Travel analysis would result in a set of focused proposals for changes to the forest transportation system or to existing travel management direction. As under existing policy, travel analysis would be based on a complete and accurate inventory of the forest transportation system on an administrative unit or a Ranger District, but in contrast to existing policy, a complete inventory of user-created routes on a unit or district would no longer be required.
FSM 7712.2, “Travel Analysis and Land Management Planning,” would reflect recent changes in regulations governing land management planning at 36 CFR part 219 and would establish that travel management decisions are made at the project level. While travel management decisions must be consistent with the applicable land management plan, they would not be made as part of the land management planning process.
FSM 7712.3, “Relationship of Travel Analysis to Travel Management Decisions,” would establish direction on the use of travel analysis and the components of travel analysis when it is used to inform travel management decisions.
FSM 7712.4, “Travel Analysis for Administration of the Forest Transportation System,” would revise direction for the use of roads analysis in determining the minimum road system needed for safe and efficient travel and for administration, utilization, and protection of NFS lands.
FSM 7714, “Road and Trail Management Objectives,” would revise direction on establishment of road and trail management objectives and would add requirements for management objectives for each NFS road and NFS trail.
FSM 7715, “Travel Management Decisions,” would establish objectives and direction for making travel management decisions that implement 36 CFR part 212.
Per 36 CFR 212.50(b) and the preamble to the travel management rule (70 FR 68268), FSM 7715.1, “Incorporating Previous Travel Management Decisions,” would provide that past travel management decisions (including decisions to allow motor vehicle use on NFS roads, on NFS trails, and in areas on NFS lands and restrictions on motor vehicle use) represent the starting point for travel analysis and travel management decisions. As stated in 36 CFR 212.52(a), if an administrative unit or a Ranger District already has a set of travel management decisions consistent with the requirements in 36 CFR 212.51, the responsible official may, with public notice but no further analysis or decisionmaking, recognize that set of decisions as the designation of NFS roads, NFS trails, and areas on NFS lands for motor vehicle use on that unit or district.
FSM 7715.2, “Scale of Decisions,” would recognize the responsible official's discretion to establish the appropriate scale at which to conduct environmental analysis for travel management decisions, as long as a motor vehicle use map is published for an entire administrative unit or Ranger District.
FSM 7715.3, “Public Involvement and Coordination with Governmental Entities,” would reiterate the requirements in 36 CFR 212.52, would encourage responsible officials to use the public notice and comment procedures in the environmental analysis process to fulfill those requirements, and would encourage early public involvement in the travel planning process.
FSM 7714.4, “Environmental Documentation,” would recognize that the required environmental documentation depends on the scale, scope, and nature of the proposed
FSM 7715.5, “Criteria,” would restate the regulatory requirement to consider both the general and specific criteria in 36 CFR 212.55 when making travel management decisions.
FSM 7715.6, “Components of Travel Management Decisions,” would establish direction for nine components of travel management decisions necessary to implement the travel management rule.
FSM 7715.61, “Restrictions,” would recognize that when existing travel management direction provides for large tracts of NFS lands to be open to cross-country motor vehicle use, responsible officials must restrict motor vehicle use to designated roads, trails, and areas to meet the requirements of 36 CFR 212.51.
FSM 7715.62, “Roads and Trails,” would direct responsible officials to consider jurisdiction over forest transportation facilities when designating NFS roads and NFS trails; to evaluate the consistency of proposed travel management decisions with applicable State traffic laws; and to coordinate travel management decisions with adjacent administrative units and Ranger Districts. Nothing in the travel management rule or these proposed directives in any way alters the Forest Service's jurisdiction to enforce traffic laws, to protect NFS lands underlying routes, or to regulate use, including use on valid rights-of-way.
FSM 7715.63, “Areas,” would reference the direction on areas established in FSM 7703.14.
FSM 7715.64, “Big Game Retrieval and Dispersed Camping,” would reiterate authority established in 36 CFR 212.51(b) on including in designation decisions the limited use of motor vehicles within a specified distance of certain designated routes, and if appropriate within specified time periods, solely for the purposes of dispersed camping or big game retrieval. This proposed direction includes a clarification of the circumstances under which this authority may be used. The regulation states “within a specified distance of certain designated routes.” The proposed directives would provide “within a specified distance of certain forest roads and forest trails.” State and county roads are not NFS roads and are not subject to designation under the rule. However, the intent of the regulation is to allow the responsible official to authorize limited use of motor vehicles for dispersed camping and game retrieval on NFS lands. It would make little sense for this authority to depend on the jurisdiction of the road or trail involved. FSM 7715.64 also would encourage responsible officials to consider alternatives prior to designating off-route motor vehicle use for dispersed camping or big game retrieval.
FSM 7715.65, “Valid Existing Rights and Private Roads,” would reiterate direction from 36 CFR 212.55(d)(1) recognizing valid existing rights.
FSM 7715.66, “Wilderness Areas and Primitive Areas,” would reiterate the regulatory prohibition in 36 CFR 212.55(e) against designation of roads, trails, and areas in wilderness areas and primitive areas.
FSM 7715.67, “Motorized Mixed Use of NFS Roads,” would require certain travel management decisions involving motorized mixed use to be informed by engineering analysis. Documentation of engineering analysis would be addressed in FSH 7709.55, Chapter 30.
FSM 7715.68, “User-Created Routes,” would establish that user-created routes may be considered for inclusion in the forest transportation system. FSM 7715.68 would provide that once designation is complete on an administrative unit or a Ranger District, any user-created routes not added to the forest transportation system would be unauthorized and should be decommissioned.
FSM 7715.69, “Accessibility,” would reiterate that under the definitions in 36 CFR 212.1 and 261.2, wheelchairs are not motor vehicles, are not subject to designations under 36 CFR 212.51, and are not subject to the prohibition on motor vehicle use in 36 CFR 261.13. Wheelchairs may be used wherever pedestrian use is allowed. Pursuant to section 504 of the Rehabilitation Act of 1973 and its implementing regulations at 7 CFR 15e.103, FSM 7715.69 also would recognize that there is no legal requirement to allow people with disabilities to use OHVs or other motor vehicles on NFS roads, NFS trails, and areas on NFS lands that are not designated for motor vehicle use.
FSM 7716, “Designations,” would describe the content of motor vehicle designations.
FSM 7716.03, “Policy,” would recognize that designations for motor vehicle use do not establish that use as dominant or exclusive of other uses and that designations are not decisions, but rather reflect travel management decisions supported by appropriate environmental analysis and public involvement.
FSM 7716.1, “Content of Designations,” would establish that designation of an NFS road or NFS trail includes the use of all terminal facilities, trailheads, parking lots, and turnouts associated with that road or trail, as well as parking within one vehicle length from the edge of the road surface when safe to do so. FSM 7716.1 also would establish five standard vehicle classes that may be used in designations and would recognize that designations by time of year must be written in terms of the time of year the route is open. When designations include the limited use of motor vehicles within a specified distance of designated routes solely for dispersed camping or big game retrieval, the vehicle class and time of year specified would not need to be the same as those specified for the route.
FSM 7716.2, “Exemptions,” would restate the exemptions from designations enumerated in 36 CFR 212.51(a) and would explain some of them.
FSM 7716.21, “Existing Authorizations,” would require responsible officials to review written authorizations prior to publishing a motor vehicle use map to ensure that they specifically provide for motor vehicle use to the extent necessary for the authorized use.
FSM 7716.22, “Use of Public Roads,” would recognize that State, county, and local public road authorities regulate use of roads for which they have a legally documented right-of-way. State, county, and local public roads are not subject to designations under the travel management rule or the corresponding prohibition on motor vehicle use.
FSM 7716.3, “Areas,” would establish policy for designation of areas. Like designations of roads and trails, area designations would include vehicle class and, if appropriate, time of year. FSM 7716.3 would require area boundaries to be displayed on the corresponding motor vehicle use map and to be easily located on the ground.
FSM 7716.4, “Identification of Designated Roads, Trails and Areas,” would require administrative units and Ranger Districts to produce motor vehicle use maps meeting national standards. Only the motor vehicle use map is required to implement and enforce designations. However, as soon as practicable, units should post route identification signs on routes designated for motor vehicle use. Route identification markers must correspond to route identifiers shown on the corresponding motor vehicle use map. Signing would have to comply with EM 7100-15.
FSM 7716.5, “Travel Management Orders,” would be organized in three parts. FSM 7716.51, “Temporary Emergency Closures,” would reiterate the requirement for temporary emergency closures from 36 CFR
FSM 7716.54, “Enforcement,” would reiterate that the motor vehicle use map is the primary tool for enforcing the prohibition at 36 CFR 261.13 and would provide further direction on measuring motor vehicle length, width, and distances established in designations for dispersed camping and big game retrieval.
FSM 7717, “Monitoring and Revision of Designations,” would be organized into two sections. FSM 7717.1, “Monitoring of Motor Vehicle Use,” would reiterate the requirement in 36 CFR 212.57 for responsible officials to monitor the effects of motor vehicle use. FSM 7717.2, “Revision of Designations,” would reiterate that designations may be revised as needed to meet changing conditions (36 CFR 212.54) and would provide that any change in the status of a designated route that will last more than 1 year should be reflected on the corresponding motor vehicle use map.
FSM 7718, “Over-Snow Vehicle Use,” would reiterate that responsible officials may allow, restrict, or prohibit over-snow vehicle use under 36 CFR 212.81. FSM 7718 would provide that restrictions or prohibitions on over-snow vehicle use may be implemented through orders issued under 36 CFR part 261, subpart B, or under 36 CFR 212.81 and 261.14. If 36 CFR part 212, subpart C, is used to restrict or prohibit over-snow vehicle use, the requirements governing designations in 36 CFR 212.52 through 212.57 would apply and the responsible official would have to publish an over-snow vehicle use map, separate from the motor vehicle use map, displaying any restrictions or prohibitions on over-snow vehicle use.
The Forest Service proposes to rename FSH 7709.55, the “Transportation Planning Handbook,” as “the Travel Planning Handbook.” Chapter 10 would be titled “Travel Planning Process,” Chapter 20 would be titled “Travel Analysis,” and Chapter 30 would be titled “Engineering Analysis.”
Chapter 10, “Travel Planning Process,” would establish a six-step process for designation of roads, trails, and areas for motor vehicle use. The six steps of the route and area designation process would be:
1. Compile existing travel management direction.
2. Assemble resource and social data.
3. Use travel analysis to identify proposals for change.
4. Conduct necessary environmental analysis and decision making.
5. Identify designated routes and areas on a motor vehicle use map.
6. Implement, monitor, and revise.
In step one, the responsible official would compile existing travel management direction to serve as the starting point for travel planning. In step two, the responsible official would gather the information needed to analyze the forest transportation system and would engage the public and other relevant governmental entities to identify local resource and social issues, recreational opportunities, and the need for change in existing travel management direction. In step three, the responsible official would conduct travel analysis, which could result in specific proposals for changes to the forest transportation system (additions or deletions to the system of NFS roads and NFS trails on the administrative unit or Ranger District) and changes in travel management direction (changes to motor vehicle use or restrictions on motor vehicle use on the unit or District). In step four, the responsible official would conduct and document appropriate environmental analysis, including consideration of alternatives, and would make travel management decisions. In step five, the responsible official would identify designated routes and areas on a motor vehicle use map. In step six, the responsible official would monitor motor vehicle use on the unit or district and revise travel management decisions as necessary.
Chapter 20, “Travel Analysis,” would incorporate into Forest Service directives the six-step process for travel analysis (which is the third step in the six-step process for designating routes and areas) and other key provisions of FS-643, Roads Analysis:
The six steps of travel analysis are:
1. Setting up the analysis.
2. Describing the situation.
3. Identifying issues.
4. Assessing benefits, problems, and risks.
5. Describing opportunities and setting priorities.
6. Reporting.
In step one, the responsible official would establish the scale, scope, and depth of travel analysis and would identify who will conduct it. In step two, the responsible official would describe current environmental and social conditions. In step three, the responsible official would identify issues relevant to travel management decisions. In step four, the responsible official would analyze the benefits, problems, and risks associated with the forest transportation system. In step five, the responsible official would use the analysis conducted in step four to identify recommendations for change and proposed actions for purposes of environmental analysis. In step six, the responsible official would document the results of travel analysis.
Chapter 30, “Engineering Analysis,” would incorporate into Forest Service directives the process for exercising and documenting engineering judgment contained in EM-7700-30, “Guidelines for Engineering Analysis of Motorized Mixed Use on National Forest System Roads.” Chapter 30 would require that travel management decisions involving motorized mixed use be informed by engineering analysis conducted by a qualified engineer. The analysis would involve a technical evaluation of road conditions and traffic and an analysis of potential mitigation measures regarding motorized mixed use. Depending on the complexity of the situation, the analysis would range from documenting engineering judgment to a comprehensive engineering report that would address many factors related to motorized mixed use, including mitigation. The analysis would be presented to the responsible official for a decision.
The proposed directives would provide policy and procedural guidance to agency officials implementing the travel management rule. Travel management decisions implementing
The proposed directives have been reviewed under USDA procedures and E.O. 12866 on regulatory planning and review. The Office of Management and Budget (OMB) has determined that these proposed directives are not significant for purposes of E.O. 12866. These proposed directives would not have an annual effect of $100 million or more on the economy, nor would they adversely affect productivity, competition, jobs, the environment, public health and safety, or State and local governments. These proposed directives would not interfere with any action taken or planned by another agency, nor would they raise new legal or policy issues. Finally, these proposed directives would not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, these proposed directives are not subject to OMB review under E.O. 12866.
These proposed directives have been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq. The proposed directives would not have any effect on small entities as defined by the Regulatory Flexibility Act. The proposed directives would require identification at the field level, with public input, of a designated system of roads, trails, and areas for motor vehicle use. The proposed directives would not directly affect small businesses, small organizations, and small governmental entities. The agency has determined that these proposed directives would not have a significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act because the directives would not impose recordkeeping requirements on them; would not affect their competitive position in relation to large entities; and would not affect their cash flow, liquidity, or ability to remain in the market.
These proposed directives have been analyzed in accordance with the principles and criteria contained in E.O. 12630. It has been determined that these directives would not pose the risk of a taking of private property.
The agency has considered these proposed directives under the requirements of E.O. 13132 on federalism, and has determined that the proposed directives conform with the federalism principles set out in this E.O.; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the agency has determined that no further assessment of federalism implications is necessary.
Moreover, these proposed directives would not have Tribal implications as defined by E.O. 13175, Consultation and Coordination With Indian Tribal Governments, and therefore advance consultation with Tribes is not required.
These proposed directives have been reviewed under E.O. 13211 of May 18, 2001, Actions Concerning Regulations That Significantly Affect the Energy Supply. It has been determined that these proposed directives would not constitute a significant energy action as defined in the E.O.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of these proposed directives on State, local, and Tribal governments and the private sector. These proposed directives would not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.
These proposed directives do not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 1320 do not apply.
Therefore, for the reasons set out in this notice, the Forest Service proposes to amend FSM 2350, 7700, and 7710 and FSH 7709.55. The proposed directives are available for review on the Forest Service Web site at
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletions from Procurement List.
This action adds to the Procurement List products and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes from the Procurement List products previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, VA 22202-3259.
Kimberly M. Zeich, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On January 12, 2007, the Committee for Purchase From People Who Are
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. The action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
On January 12, 2007, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (72 FR1491) of proposed deletions to the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products deleted from the Procurement List.
Accordingly, the following products are deleted from the Procurement List:
Proposed additions to and deletions from procurement list.
The Committee is proposing to add to the Procurement List services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and to delete products previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259.
Kimberly M. Zeich, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
This notice is published pursuant to 41 U.S.C 47(a) (2) and 41 CFR 51-2.3. Its purpose
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice for each product or service will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.
2. If approved, the action will result in authorizing small entities to furnish the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products proposed for deletion from the Procurement List.
The following products are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Publication of the quarterly update of the A-list and movement of products between the A-list, B-list and C-list as of April 1, 2007.
The Committee for Purchase From People Who Are Blind or Severely Disabled, in accordance with the procedures published on December 1, 2006 (71 FR 69535-69538), has updated the scope of the Program's procurement preference requirements for the products listed below between and among the Committee's A-list, B-list and C-list. A-list products are suitable for the Total Government Requirement as aggregated by the General Services Administration, the B-list are those products suitable for the Broad Government Requirement as aggregated by the General Services Administration, and C-list products are suitable for the requirements of one or more specified agency(ies). The lists below track changes to A-, B-, C-designations that occurred between December 1, 2006 and March 2, 2007. If not currently available, the products listed below as being included on the A-list will be available for purchase through the GSA Global Supply system and JWOD-authorized commercial distributors on or about April 1, 2007.
The effective date for the quarterly update of the A-list and movement of products between and among the A-list, B-list and C-list is April 1, 2007.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259
Emily A. Covey, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
The complete A-list is available at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Pursuant to the regulations of the Foreign-Trade Zones (FTZ) Board (the Board), a review has been initiated (under 15 CFR Sec. 400.28(a)(3)(iii)(A)) of changes in sourcing related to certain ibuprofen products at Foreign-Trade Subzone 43D, at the manufacturing facilities of the Perrigo Company (Perrigo), in Allegan, Michigan, which produce a range of store-brand, over-the-counter (OTC) pharmaceutical products.
In May 2003, the Board filed an application from the City of Battle Creek, Michigan, grantee of FTZ 43, requesting special-purpose subzone status with certain manufacturing authority for Perrigo. The subzone application was approved by the Board on April 13, 2004 (Board Order 1326, 69 FR 21498, 4/21/04), including the manufacture under FTZ procedures of certain OTC pharmaceutical products containing ibuprofen, aspirin and acetaminophen. Specific to ibuprofen, Perrigo produces finished ibuprofen mixture and finished ibuprofen products (HTSUS headings 3003 and 3004, duty-free) using foreign-sourced active ingredient ibuprofen (HTSUS 2916.39.15, 6.5% duty rate). On products shipped to the U.S. market, the company is able to choose the duty rate during Customs entry procedures that applies to the finished ibuprofen mixture and products (duty-free) for the otherwise dutiable foreign active ingredient (6.5% duty rate) noted above (inverted tariff), as described in the application.
Perrigo has now notified the Board of additional sourcing of foreign active ingredient ibuprofen that it may manufacture into OTC ibuprofen products under zone procedures. In its original application, Perrigo had projected approximately $450,000 (90 percent of its total FTZ savings) in annual inverted tariff savings for its OTC ibuprofen, acetaminophen and aspirin production. Perrigo's sourcing-change submission now projects up to an additional $1.55 million in inverted tariff savings tied to the sourcing change for its OTC ibuprofen products.
In accordance with the Board's regulations, a member of the FTZ staff has been designated examiner to investigate the sourcing change, including its potential to cause “significant adverse effects” (15 CFR 400.28(a)(3)(iii)(A)), and report to the Board.
Public comment is invited from interested parties. Information submitted for the record generally should be in a non-proprietary format. If there is a need to submit business proprietary information, it should be appropriately marked and summarized or ranged (in the case of numerical data) in the public submission, which should be accompanied by a single business proprietary version.
Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for the receipt of the public comment submissions is May 10, 2007. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period through May 25, 2007.
A copy of the sourcing-change submission will be available for public inspection at the following location: Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2814B, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, D.C. 20230-0002. For further information, contact Diane Finver at Diane_Finver@ita.doc.gov or (202) 482-1367.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand FTZ 49 is approved, subject to the FTZ Act and
Attest:
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the South Carolina State Ports Authority, grantee of FTZ 38, requesting special-purpose subzone status with manufacturing authority for certain ibuprofen products at the pharmaceutical manufacturing facility of Leiner Health Products, LLC (Leiner), located in Fort Mill, South Carolina. Leiner is a manufacturer of store-brand vitamin, mineral and nutritional supplements (VMS) and over-the-counter (OTC) pharmaceutical products. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on March 2, 2007.
The proposed subzone (1 building of 620,000 square feet of enclosed space on 27 acres) is located at 355 Crestmont Drive, in Fort Mill, South Carolina. The Leiner plant (600 permanent employees and 100-200 seasonal employees) manufactures, packages, and warehouses both solid-dose VMS and OTC pharmaceutical products.
Initially, Leiner is proposing to manufacture ibuprofen products under zone procedures at the plant. At the outset, inverted tariff zone savings will result from the production of finished ibuprofen mixture (HTSUS 3003.90, duty-free) and finished ibuprofen products (HTSUS 3004.90, duty-free; up to 2.5 billion pills per year) using foreign-sourced active ingredient ibuprofen (HTSUS 2916.39, 6.5% duty rate).
The application also indicates the possibility of producing bulk acetaminophen mixture (HTSUS 3003.90, duty-free) and finished acetaminophen products (HTSUS 3004.90, duty-free), which the company may produce at the plant in the future, using foreign-sourced active ingredient acetaminophen (HTSUS 2924.29, 6.5% duty rate). (New major activity for this product would require review by the FTZ Board.) Leiner also plans to admit other foreign inputs under FTZ procedures, but will make customs entry before manufacture into products at the Fort Mill facility or before distribution to other Leiner U.S. manufacturing facilities.
For Leiner's ibuprofen-related production, zone procedures would exempt the company from Customs duty payments on foreign materials used in production for export. On domestic shipments, the company would be able to choose the duty rate during Customs entry procedures that applies to finished ibuprofen mixture and products (duty-free) for the otherwise dutiable foreign active ingredient inputs (6.5% duty rate) noted above (inverted tariff).
Leiner would also obtain duty deferral savings and be able to avoid duty on foreign inputs which become scrap/waste (approximately 5% scrap and waste rate). Additionally, Leiner may realize logistical/procedural and other benefits from subzone status. The application projects up to $642,000 in total FTZ savings (some 65% of which are tied to the inverted tariff on ibuprofen), which it indicates would help improve the international competitiveness of Leiner's Fort Mill plant.In accordance with the Board's regulations, a member of the FTZ staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Information submitted for the record generally should be in a non-proprietary format. If there is a need to submit business proprietary information, it should be appropriately marked and summarized or ranged (in the case of numerical data) in the public submission, which should be accompanied by a single business proprietary version.
Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for the receipt of the public comment submissions is May 10, 2007. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period through May 25, 2007.
A copy of the application will be available for public inspection at each of the following locations: U.S. Department of Commerce Export Assistance Center, 521 East Morehead Street, Suite 435, Charlotte, NC 28217; and, Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2814B, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, D.C. 20230-0002.
For further information, contact Diane Finver at Diane_Finver@ita.doc.gov or (202) 482-1367.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce has received information sufficient to warrant initiation of changed-circumstances reviews of the antidumping duty orders on ball bearings and parts thereof from Italy and the United Kingdom pursuant to section 751(b) of the Tariff Act of 1930, as amended.
March 9, 2007.
Kristin Case at (202) 482-3174 or Richard Rimlinger at (202) 482-4477, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.
The Department of Commerce (the Department) published antidumping duty orders on ball bearings and parts thereof from Italy and the United Kingdom on May 15, 1989. See
On August 11, 2000, the Department revoked the antidumping duty order on ball bearings and parts thereof from Italy with respect to Somecat S.p.A. (Somecat). See
On January 9, 2007, Somecat S.p.A., a subsidiary of Societe Nouvelle de Fabrication Aeronautique S.A.S.U. (SNFA), and SKF Industries S.p.A. (SKF Italy) notified the Department of a change in ownership of SNFA.
We did not receive any other comments.
The products covered by these orders are ball bearings and parts thereof. These products include all bearings that employ balls as the rolling element. Imports of these products are classified under the following categories: antifriction balls, ball bearings with integral shafts, ball bearings (including radial ball bearings) and parts thereof, and housed or mounted ball bearing units and parts thereof.
Imports of these products are classified under the following
As a result of recent changes to the Harmonized Tariff Schedule, effective February 2, 2007, the subject merchandise is also classifiable under the following additional HTS item numbers: 8708.30.5090, 8708.40.7500, 8708.50.7900, 8708.50.8900, 8708.50.9150, 8708.50.9900, 8708.80.6590, 8708.94.75, 8708.95.2000, 8708.99.5500, 8708.99.68, and 8708.99.8180.
Although the HTSUS item numbers above are provided for convenience and customs purposes, written descriptions of the scope of these orders remain dispositive.
For a listing of scope determinations which pertain to the order on ball bearings and parts thereof, see the Scope Determination Memorandum (Scope Memorandum) from the Antifriction Bearings Team to Laurie Parkhill, dated March 2, 2006. The Scope Memorandum is on file in the Central Records Unit (CRU), main Commerce building, Room B-099, in the General Issues record (A-100-001) for the 2004/2005 administrative reviews of the orders on antifriction bearings.
Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), the Department will conduct a changed-circumstances review upon receipt of information concerning, or a request from an interested party for a review of, an antidumping duty order which shows changed circumstances sufficient to warrant a review of the order. Although SKF Italy, SKF UK, Somecat, and SNFA UK assert that conduct of changed-circumstances reviews for the Italy and United Kingdom proceedings would be premature, we disagree and determine that the information submitted demonstrates changed circumstances sufficient to warrant reviews of the antidumping duty orders on ball bearings and parts thereof from Italy and the United Kingdom. For example, SKF Italy and Somecat acknowledge a degree of overlapping production and state that, in instances where both utilize a common supplier, attempts have been made to renegotiate prices based on their combined purchasing power. Further, SKF UK's and SNFA UK's statement that a plan to relocate SNFA UK's production facilities is being developed indicates that production planning and production management decisions may have changed as a result of AB SKF's purchase of SNFA. Finally, SKF Italy, SKF UK, Somecat, and SNFA UK state that SNFA Group management now reports to SKF Group management. Accordingly, we cannot conclude, as requested by SNFA UK and SKF UK, that SNFA UK is not the successor-in-interest to SKF UK nor is SKF UK the successor-in-interest to the pre-acquisition SNFA UK. Similarly, we cannot conclude, as requested by Somecat and SKF Italy, that Somecat is not the successor-in-interest to SKF Italy nor is SKF Italy a successor-in-interest to the pre-acquisition Somecat. Therefore, in accordance with section 751(b)(1) of the Act, the Department is initiating changed-circumstances
Therefore, in accordance with 19 CFR 351.221(b)(2) and (4) and 19 CFR 351.221(c)(3)(i), we will issue questionnaires requesting factual information for the reviews and will publish a notice of preliminary results of the antidumping duty changed-circumstances reviews in the
This notice of initiation is in accordance with section 751(b)(1) of the Act and (d), and 19 CFR 351.221(b)(1).
Import Administration, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (“the Department”) is currently conducting the 2004/2006 administrative review and a 2004/2006 new shipper review of the antidumping duty order on certain frozen warmwater shrimp from the People's Republic of China (“PRC”). The period of review (“POR”) for both the administrative and new shipper reviews is July 14, 2004, through January 31, 2006. We preliminarily determine that sales have not been made below normal value (“NV”) with respect to certain exporters subject to the administrative review. We also have preliminarily found that the single sales made by Asian Seafoods (Zhanjiang) Co., Ltd. (“Asian Seafoods”) and Hai Li Aquatic Co., Ltd. Zhao An, Fujian (“Hai Li”), the new shipper, were not
Interested parties are invited to comment on these preliminary results. We will issue the final results no later than 120 days from the date of publication of this notice.
March 9, 2007.
Erin Begnal or Scot Fullerton, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230;
On February 1, 2005, the Department published in the
On February 22, 2006, Hai Li, in accordance with 19 CFR 351.214(c), requested a new shipper review of the antidumping duty order on certain frozen warmwater shrimp from the PRC, which has a February anniversary month. On March 23, 2006, the Department initiated a new shipper review of Hai Li covering the period July 16, 2004, through January 31, 2006.
On February 1, 2006, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on certain frozen warmwater shrimp from the PRC.
The Department received timely requests from the Ad Hoc Shrimp Trade Action Committee and certain individual companies, in accordance with 19 CFR 351.213(b), during the anniversary month of February, for administrative reviews of the antidumping duty orders on certain frozen warmwater shrimp from the PRC covering 164 companies. However, on March 1, 2006, the Ad Hoc Shrimp Trade Action Committee withdrew its request for administrative review on one company. The Department, therefore, initiated an administrative review on the remaining 163 companies.
The
On March 17, 2006, the Department received copies of CBP documents pertaining to the entry of certain frozen warmwater shrimp from the PRC, exported by Hai Li during the POR, from CBP.
On April 14, 2006, Hai Li agreed to waive the time limits of its new shipper review of certain frozen warmwater shrimp from the PRC, pursuant to 19 CFR 351.214(j)(3), and agreed to have its
Of the 163 named firms for which the Department initiated an administrative review, and consistent with the guidelines established in the
On May 22, 2006, the Department sent a letter to the remaining firms that did not respond to the Department's Q&V questionnaire and separate rate certification/application providing them with another opportunity to submit the requested information (
Of the 163 named firms for which the Department initiated an administrative review, nine companies/corporate groupings (which consisted of sixteen individually initiated companies, some of which are affiliated, yielding nine potential respondents) had both an active request for review, an appropriately submitted Q&V questionnaire response, and shipments of subject merchandise. Thus, nine companies/corporate groupings were considered in the selection of respondents for this review. On June 16, 2006, the Department selected Meizhou, Red Garden, and Yelin Enterprise Co. Hong Kong and its affiliates (collectively “Yelin”) as mandatory respondents.
The Department sent its antidumping questionnaire to Meizhou, Red Garden, and Yelin on June 20, 2006. In the questionnaire, the Department requested that the three firms provide a response to section A of the Department's questionnaire by July 11, 2006, and sections C and D of the questionnaire by July 27, 2006.
On July 6, 2006, the Ad Hoc Shrimp Trade Action Committee withdrew its request for an administrative review of the following 36 companies: Beihai Zhengwu Industry Co., Ltd.; Chaoyang Qiaofeng Group Co., Ltd. (Shantou Qiaofeng (Group) Co., Ltd.) (Shantou/Chaoyang Qiaofeng); Chengai Nichi Lan Foods Co., Ltd.; Citic Heavy Machinery; Dalian Ftz Sea-Rich International Trading Co., Ltd.; Dongri Aquatic Products Freezing Plants; Fuqing Dongwei Aquatic Products Industry Co. Ltd.; Gallant Ocean (Liangjiang) Co. Ltd.; Hainan Fruit Vegetable Food Allocation Co., Ltd.; Hainan Golden Spring Foods Co., Ltd/Hainan Brich Aquatic Products Co., Ltd.; Jinfu Trading Co., Ltd.; Kaifeng Ocean Sky Industry Co., Ltd.; Leizhou Zhulian Frozen Food Co., Ltd.; Pingyang Xinye Aquatic Products Co. Ltd.; Savvy Seafood Inc.; Shanghai Taoen International Trading Co., Ltd.; Shantou Freezing Aquatic Product Food Stuff Co.; Shantou Jinhang Aquatic Industry Co., Ltd.; Shantou Jinyuan District Mingfeng Quick-Frozen Factory; Shantou Long Feng Foodstuffs Co., Ltd. (Shantou Longfeng Foodstuffs Co., Ltd.); Shantou Ruiyaun Industry Co., Ltd.; Shantou Shengping Oceanstar Business Co. Ltd.; Shantou Wanya Food Factory Co. Ltd.; Shantou Yuexing Enterprise Company; Xuwen Hailang Breeding Co., Ltd.; Yantai Wei-Cheng Food Co., Ltd.; Zhangjiang Bobogo Ocean Co., Ltd.; Zhangjiang Newpro Food Co., Ltd.; Zhanjiang Go-Harvest Aquatic Products Co., Ltd.; Zhanjiang Runhai Foods Co., Ltd.; Zhanjiang Universal Seafood Corp; Zhejiang Cereals, Oils, & Foodstuffs Import & Export Co., Ltd.; Zhoushan Cereals, Oils, and Foodstuffs Import and
In turn, on July 31, 2006, the Department issued a notice of partial rescission for the 36 above-referenced companies, as well as Polypro Plastics, for whom the Department initiated, in part, the first administrative review of certain frozen warmwater shrimp from the PRC.
On July 10, 2006, Meizhou submitted its response to section A of the Department's questionnaire. On July 11, 2006, Asian Seafoods submitted a voluntary response to section A of the Department's questionnaire.
On July 12, 2006, Zhanjiang Regal Integrated Marine Resources Co., Ltd. (“Zhanjiang Regal”) submitted a letter indicating it had only one POR shipment of subject merchandise which was already subject to a new shipper review.
On July 17, 2006, counsel for Red Garden filed a letter, in lieu of its section A response, stating that it had decided not to answer the questionnaires in this administrative review.
On July 18, 2006, Yelin submitted its response to section A of the Department's questionnaire. On July 25, 2006, Zhanjiang Regal submitted a letter requesting the administrative review of the company's sales be rescinded as they were already subject to an ongoing new shipper review. On July 25, 2006, Hai Li responded to the Department's July 6, 2006, second supplemental questionnaire. On July 27, 2006, Asian Seafoods submitted its response to sections C and D of the Department's questionnaire.
On August 3, 2006, and September 5, 2006, the Department invited parties to submit comments on the selection of a surrogate country and to submit publicly available information for purposes of calculating normal value.
On August 10, 2006, Meizhou submitted its response to sections C and D of the Department's questionnaire. On August 11, 2006, the Department issued a supplemental section A questionnaire to Asian Seafoods and Yelin. On August 14, 2006, Yelin submitted its response to sections C and D of the Department's questionnaire.
On August 16, 2006, the Department issued a memorandum which indicated that data from CBP corroborated the statements of certain companies which reported making no shipments of subject merchandise during the POR. See Memorandum to the File, from Christopher D. Riker, Program Manager, AD/CVD Operations, Office 9, regarding
The Department also indicated that it was unable to directly serve certain companies with the
On August 16, 2006, Shantou City Qiaofeng Group submitted a letter indicating that it is the same company as Chaoyang Qiaofeng Group Co., Ltd., a company for which the Department rescinded the administrative review.
On August 17, 2006, the Department issued a supplemental section A questionnaire to Meizhou.
On August 25, 2006, the Department extended the deadline for the preliminary results of review by 120 days, until February 28, 2007.
On September 1, 2006, Yelin and Asian Seafoods responded to the Department's supplemental section A questionnaires. On September 6, 2006, Meizhou submitted its response to the Department's supplemental section A questionnaire.
On September 14, 2006, the Ad Hoc Shrimp Trade Action Committee submitted criteria for invoking the multinational corporation (“MNC”) provision for Yelin, and on September 26, 2006, Yelin submitted a response.
On October 6, 2006, the Department issued a supplemental section C and D questionnaire response to Meizhou, and on October 12, 2006, the Department issued a supplemental questionnaire to Yelin. On October 26, 2006, the Department issued its second supplemental questionnaire to Asian Seafoods. On October 27, 2006, the Ad Hoc Shrimp Trade Action Committee responded to Yelin's September 26, 2006, MNC submission.
On November 1, 2006, the Department rejected Meizhou's October 27, 2006, questionnaire response pursuant to 19 CFR 351.304(b). The Department, however, provided Meizhou with an opportunity to correct the filing and to submit the requested information. On November 9, 2006, Yelin submitted its response to the Department's October 12, 2006, questionnaire. On November 6, 2006, Meizhou withdrew from the administrative review.
On November 30, 2006, Asian Seafoods, Allied Pacific, and Hai Li submitted publicly available information for use in the calculation of normal value in the administrative and new shipper reviews. Also, Yelin, on November 30, 2006, and the Ad Hoc Shrimp Trade Action Committee, on December 1, 2006, December 21, 2006, and January 19, 2007, submitted publicly available information for use in the calculation of normal value in the administrative review.
On December 1, 2006, and December 6, 2006, the Department issued its verification outlines to Asian Seafoods and Hai Li, respectively. The Department conducted verification of the responses of Asian Seafoods from December 8 through 10, 2006, and Hai Li from December 13 through 15, 2006. On December 8, 2006, Asian Seafoods submitted its minor corrections presented at the commencement of verification.
On December 13, 2006, the Department requested documentation supporting Zhanjiang Evergreen Aquatic Product Science and Technology Co., Ltd.'s (“Evergreen”) and Zhoushan Huading Seafood Co., Ltd.'s (“Huading”) April 28, 2006, separate rate certifications. On December 29, 2006, Evergreen submitted its separate rate supporting documentation.
On January 8, 2007, the Department issued a verification outline to Yelin, Fuqing Yihua Aquatic Products Co., Ltd. (“Fuqing Yihua”), and Ocean Duke Corporation (“Ocean Duke”), affiliates of Yelin. The Department conducted verification of Yelin's responses from January 15 through 16, 2007, at Fuqing Yihua, from January 22 through 23, 2007, at Yelin, and from January 25 through 26, 2007, at Ocean Duke. On January 11, 2007, the Department issued a verification outline to Huading, and began verification of its separate rate responses on January 18, 2007.
On January 23, 2007, the Department published a correction to the scope of the order in which it clarified that the scope does not cover warmwater shrimp in non-frozen form.
On February 28, 2007, the Department released the verification reports for Asian Seafoods, Hai Li, Zhoushan Huading and Yelin and its affiliates
As previously stated, on August 3, 2006, and September 5, 2006, the Department provided parties an opportunity to submit publicly available information (“PAI”) on surrogate countries and values for consideration in these preliminary results. As previously indicated, the Department received comments on November 30, 2006, December 1, 2006, December 21, 2006, and January 19, 2007.
The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of this investigation, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTS”), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this investigation. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this investigation.
Excluded from the scope are: (1) Breaded shrimp and prawns ( HTS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the
The products covered by this investigation are currently classified under the following HTS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this investigation is dispositive.
On July 17, 2006, the Ad Hoc Shrimp Trade Action Committee requested that the Department conduct verification of the data submitted by all of the firms for which the Department initiated an administrative review, as well as Hai Li. However, due to the Department's
For the administrative and new shipper review respondents that we did verify, we used standard verification procedures, including on site inspection of the manufacturers' and exporters' facilities, and examination of relevant sales and financial records. Our verification results are outlined in the verification report for each company. For a further discussion,
Several companies indicated they did not export certain frozen warmwater shrimp to the United States during the POR. In order to corroborate these submissions, we reviewed PRC certain frozen warmwater shrimp shipment data maintained by CBP, and found no discrepancies with the statements made by these firms.
Therefore, for the reasons mentioned above, we are preliminarily rescinding the administrative review with respect to: Baofa Aquatic Products Co., Ltd.; Guangzhou Lingshan Aquatic Products; Ruian Huasheng Aquatic Products; Sealord North America; Shantou Ocean Freezing Industry and Trade General Corporation; Spectrum Plastics; Taizhou Zhonghuan Industrial Co., Ltd.; Yantai Xinlai Trade; Zhejiang Daishan Baofa Aquatic Products Co., Ltd.; Zhejiang Evernew Seafood Co., Ltd.; Zhejiang Zhenlong Foodstuffs Co., Ltd.; Zhoushan Guotai Aquatic Products Co., Ltd. (AKA Zhoushan Guotai Fisheries Co., Ltd.); Zhoushan Haichang Food Co.; Zhoushan Industrial Co., Ltd.; Zhoushan Putuo Huafa Sea Products Co., Ltd.; and Zhoushan Zhenyang Developing Co., Ltd. because each reported having made no shipments of subject merchandise during the POR, and the Department found no information to indicate otherwise.
The Department is also preliminarily rescinding the administrative review with respect to: Allied Pacific Food; Allied Pacific Aquatic Products (Zhongshan) Co., Ltd.;
Additionally, consistent with section 351.214(j) of the Department's regulations, the Department is rescinding the administrative review of Zhanjiang Regal because the Department has already reviewed all of the company's sales which were made during the POR in the context of a new shipper review.
For the reasons stated below, we preliminarily find that Hai Li's reported U.S. sale during the POR does not appear to be a
Additionally, for the reasons stated below, we preliminarily find that Asian Seafood's reported U.S. sale during the POR does not appear to be a
For the reasons mentioned above, the Department preliminarily finds that Hai Li's and Asian Seafood's single U.S. sales during the POR were not
In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (“NME”) country.
Section 773(c)(4) of the Act requires the Department to value an NME producer's factors of production, to the extent possible, in one or more market-economy countries that (1) are at a level of economic development comparable to that of the NME country, and (2) are significant producers of comparable merchandise. India and Indonesia are among the countries comparable to the PRC in terms of overall economic development.
For the reasons outlined below, we have applied total adverse facts available to: Ammon International; Aquatic Foodstuffs FTY; Dafu Foods Industry; Dalian Shanhai Seafood; Dalian Shan Li Food; Fuchang Aquatic Products; Gallant Ocean International; Gallant Seafoods; Go Harvest Aquatic Products; Guolian Aquatic Products; Hainan Jiadexin Foodstuff; Jinhang Aquatic Industry; Laiyang Hengrun Foodstuff; Laiyang Luhua Foodstuffs; Longsheng Aquatic Product; Luk Ka Paper Industry; Marnex; Meizhou Aquatic; Meizhou; North Supreme Seafood (Zhejiang) Co., Ltd.; Ocean Freezing Industry & Trade General; Power Dekor Group Co., Ltd.; Red Garden; Red Garden Food, Red Garden Foodstuff, Rongcheng Tongda Aquatic Food; Shanghai Linghai Fisheries Economic and Trading Co.; Shantou Longshen Aquatic Product; Silvertie Holding; The Second Aquatic food; Weifang Taihua Food; Weifang Yongqiang Food Ind; Wenling Xingdi Aquatic Products; Zhejiang Xintianjiu Sea Products Co., Ltd.; Zhejiang Xingyang Import & Export; Zhenjaing Evergreen Aquatic Products Science and Technology Co., Ltd.; Zhoushan Jingzhou Aquatic Products Co., Ltd.; and Huading.
In the
By not responding to the Department's Q&V questionnaire, the above-referenced companies failed to provide critical information to be used for the Department's respondent selection process. Pursuant to sections 776(a) and (b) of the Act, the Department may apply adverse facts available if it finds a respondent has failed to cooperate by not acting to the best of its ability to comply with a request for information from the Department. By failing to respond to the Department's Q&V questionnaire, the above-referenced companies have failed to act to the best of their ability in this segment of the proceeding.
In addition, because the above-referenced companies did not submit a separate rate application or certification, the Department was unable to determine whether or not they qualified for a
For the reasons outlined below, we have applied total adverse facts available to Red Garden, Meizhou, and Huading. Section 776(a)(2) of the Act provides that, if an interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested subject to sections 782(c)(1) and (e) of the Act; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to section 782(d) of the Act, use facts otherwise available in reaching the applicable determination.
On July 17, 2006, Red Garden submitted a letter to the Department indicating it would not comply with the Department's requests for information.
As noted above, Red Garden, Meizhou, and Huading submitted letters to the Department withdrawing their participation from the administrative review, in lieu of responding to a request for information. By not responding to the Department's request for information, Red Garden, Meizhou, and Huading failed to provide critical information to be used for the Department's margin calculation, significantly impeded the review, and provided unverifiable information.
By failing to respond to the Department's requests for information and by not allowing the Department to conduct verification, Red Garden, Meizhou, and Huading, respectively, have not proven they are free of government control and are therefore not eligible to receive a separate rate. In the
According to section 776(b) of the Act, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of the party as facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.”
As explained above, the PRC-wide entity (including Red Garden, Meizhou, and Huading) would either not permit the Department to verify information placed on the record or informed the Department that it would not participate further in this review and did not respond to the Department's requests for information. Therefore, the PRC-wide entity did not cooperate to the best of its ability. Because the PRC-wide entity did not cooperate to the best of its ability in the proceeding, the Department finds it necessary, pursuant to sections 776(a)(2)(D) and 776(b) of the Act, to use adverse facts available (“AFA”) as the basis for these preliminary results of review for the PRC-wide entity.
In this segment of the proceeding, in accordance with Department practice (
However, as discussed in the Huading Analysis Memorandum, because Huading terminated verification and we found reimbursement of antidumping duties, it is appropriate to assign Zhoushan Huading a rate inclusive of the PRC-wide entity rate and the reimbursement adjustment. See Huading Analysis Memorandum. This is consistent with the Department's past practice.
Therefore, in accordance with our regulations and past practice, in this unique situation in which the Department found evidence of reimbursement at verification, the cash deposit rate assigned to Huading for these preliminary results is double that of the PRC-wide entity, or 225.62 percent. See Huading Analysis Memorandum.
Section 776(c) of the Act requires that the Department corroborate, to the extent practicable, a figure which it applies as facts available. To be considered corroborated, information must be found to be both reliable and relevant. We are applying as AFA the highest rate from any segment of this administrative proceeding, which is the rate currently applicable to all exporters subject to the PRC-wide rate. The AFA
For purposes of corroboration, the Department will consider whether that margin is both reliable and relevant. The AFA rate we are applying for the current review was corroborated in the LTFV investigation. See,
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in
As the 112.81 percent rate is both reliable and relevant, we determine that it has probative value. Accordingly, we determine that the calculated rate of 112.81 percent, which is the current PRC-wide rate, is in accord with the requirement of section 776(c) that secondary information be corroborated to the extent practicable (
In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty deposit rate (
Of the 163 companies initiated upon, 16 companies filed separate rate certifications or applications. Allied Pacific Group (
Six of the companies listed above (
As referenced above, Red Garden, Meizhou, and Huading failed to establish that they qualify for a separate rate.
Further, as discussed above, because we are preliminarily rescinding the administrative review for Asian Seafoods, and the new shipper review for Hai Li, because their sales are not
Finally, although Fuqing Minhua Trade Co. Ltd. submitted a separate rate application, the company was not listed in the Department's notice of initiation of the administrative review.
The remaining respondents (
Evidence supporting, though not requiring, a finding of de jure absence of government control over export activities includes: (1) An absence of restrictive stipulations associated with the individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) any other formal measures by the government decentralizing control of companies.
Yelin, Allied Pacific (Hong Kong), Allied Pacific (Zhanjiang), and Evergreen have each placed on the administrative record documents to demonstrate an absence of
As in prior cases, we have analyzed the laws presented to us and have found them to establish sufficiently an absence of
As stated in previous cases, there is evidence that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC.
The Department typically considers four factors in evaluating whether each respondent is subject to
Yelin, Allied Pacific (Hong Kong), Allied Pacific (Zhanjiang), and Evergreen have each asserted the following: (1) It establishes its own export prices; (2) it negotiates contracts without guidance from any governmental entities or organizations; (3) it makes its own personnel decisions; and (4) it retains the proceeds of its export sales, uses profits according to its business needs, and has the authority to sell its assets and to obtain loans. Additionally, each of these companies' questionnaire responses indicates that its pricing during the POR does not suggest coordination among exporters.
Consequently, we have preliminarily determined that Yelin, Allied Pacific (Hong Kong), Allied Pacific (Zhanjiang), and Evergreen have each met the criteria for the application of separate rates based on the documentation each of these respondents has submitted on the record of these reviews.
Based on timely requests from individual exporters and petitioners, the Department originally initiated this review with respect to 163 companies. During the course of the review, however, the Department employed a limited examination methodology, as it did not have the resources to examine all companies for which a review request was made. As stated previously, the Department selected three exporters, Yelin, Red Garden (which ultimately withdrew and was replaced by Asian Seafoods), and Meizhou (which also later withdrew) as mandatory respondents in this review. Three additional companies (Allied Pacific HK, Allied Pacific (Zhanjiang) and Evergreen) submitted timely information as requested by the Department and remain subject to review as cooperative separate rate respondents.
Yelin participated fully in this review and is receiving a preliminary antidumping duty rate of zero. As noted above, however, the mandatory respondents either withdrew from the administrative review (
The Department must also assign a rate to the remaining three cooperative separate rate respondents not selected for individual examination. We note that the statute and the Department's regulations do not directly address the establishment of a rate to be applied to individual companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777(A)(c)(2) of the Act. The Department's practice in this regard, in cases involving limited selection based on exporters accounting for the largest volumes of trade, has been to weight-average the rates for the selected companies excluding zero and
While the statute does not specifically address this particular set of circumstances, section 735(c)(5)(B) of the Act does specify the methodology to be followed when a similar fact pattern arises in the context of the all-others rate established in an investigation. While not entirely analogous to the determination of a rate to be applied to responsive separate rate respondents in the context of a NME review, we find it to be instructive in these circumstances.
Section 735(c)(5)(B) of the Act states that in situations where the estimated weighted-average dumping margins established for all exporters and producers individually investigated are zero or
The Statement of Administrative Action (“SAA”) states that in using any reasonable method to calculate the all-others rate, “the expected method in such cases will be to weight-average the zero and
In this case, because of the nature of the shrimp industry, the Department preliminarily concludes that it cannot accurately determine a margin based on information provided by the separate rate entities. Furthermore, we preliminarily find that we cannot employ such alternative methods as weight-averaging AFA,
The Department has therefore preliminarily determined to apply the margin calculated for cooperative separate rate respondents in the immediately preceding segment of this proceeding,
To determine whether sales of the subject merchandise by Yelin to the United States were made at prices below normal value (“NV”), we compared each company's constructed export prices (“CEPs”) to NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice, below.
For Yelin, we used CEP methodology in accordance with section 772(b) of the Act for sales in which the subject merchandise was first sold in the United States before or after the date of importation by a seller affiliated with the producer or exporter to an unaffiliated purchaser in the United States. We made the following company-specific adjustments:
We calculated CEP based on packed U.S. prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight, foreign brokerage and handling charges in the PRC, international ocean freight, in accordance with section 772(c) of the Act, as well as imputed inventory carrying costs, commissions, credit expenses, indirect selling expenses, and profit, in accordance with section 772(d) of the Act. For additional discussion on these, and other specifics pertaining to Yelin's margin calculation,
To value foreign brokerage and handling expenses, we used publicly summarized or “ranged” expense data submitted during the past year by Indian companies in connection with other antidumping duty administrative reviews conducted by the Department.
In determining the most appropriate surrogate values to use in a given case, the Department's stated practice is to use investigation or review period-wide price averages, prices specific to the input in question, prices that are net of taxes and import duties, prices that are contemporaneous with the period of investigation or review, and publicly available data. The data we used for brokerage and handling expenses fulfill all of the foregoing criteria except that they are not specific to the subject merchandise: there is no information of that type on the record of this review.
We used a simple average of two companies' brokerage expense data in order to achieve a more representative value than a single source would provide. Both sources are of equal quality and are contemporaneous with the POR. See Bicycles, 61 FR at 19039 (on using a simple, as opposed to a weighted, average in the calculation of financial ratios).
Section 773(c)(1) of the Act provides that the Department shall determine NV using a factors of production methodology if the merchandise is exported from an NME country and the information does not permit the calculation of NV using home market prices, third country prices, or constructed value under section 773(a) of the Act. The Department will base NV on the factors of production because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under its normal methodologies.
For purposes of calculating NV, we valued the PRC factors of production in accordance with section 773(c)(1) of the Act. Factors of production include, but are not limited to, hours of labor required, quantities of raw materials employed, amounts of energy and other utilities consumed, and representative capital costs, including depreciation.
In accordance with section 773(c) of the Act, we calculated NV based on the factors of production reported by the respondents for the POR. We relied on the factor specification data submitted by the respondents for the above-mentioned inputs in their questionnaire and supplemental questionnaire responses, where applicable, for purposes of selecting surrogate values.
To calculate NV, we multiplied the reported per unit factor quantities by publicly available Indian surrogate values (except where noted below). In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to Indian import surrogate values a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory, where appropriate. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in
Except where discussed below, we valued raw material inputs using July 2004-January 2006 weighted-average Indian import values derived from the
Furthermore, with regard to the Indian import-based surrogate values, we have disregarded prices from NME countries and those that we have reason to believe or suspect may be subsidized (
Finally, we excluded imports that were labeled as originating from an “unspecified” country from the average value, because the Department could not be certain that they were not from either an NME or a country with general export subsidies.
We valued these factors of production based on Indian WTA data: shrimp feed; antiseptic; anti virus; nutriment; sodium; and salt. Additionally, we valued these packing factors of production based on Indian WTA data: cardboard boxes; plastic bags; and adhesive tape.
To value raw shrimp, we used Indonesian data from an October 2006 report on shrimp farming in South and South-East Asia from the Network of Aquaculture Centres in Asia-Pacific (
To value shrimp larvae, we used the audited 2004-2005 financial statements of Sharat Industries Limited, an Indian shrimp producer. Trade Pacific, PLLC placed this data on the record of this review.
To value by-products, we used a public price quote from an Indonesian company that has been used in the investigation of this proceeding.
We valued electricity using the 2000 total average price per kilowatt hour for “Electricity for Industry” as reported in the International Energy Agency's publication,
We valued heavy oil using the 2005 first quarter “Heavy Fuel Oil for Industry” price as reported in the International Energy Agency's publication,
To value water, the Department used the industrial water rates within the
To value diesel fuel, we used the 2005 first quarter “Automotive Diesel Oil” price as reported in the International Energy Agency's publication,
The Department revised its calculation of expected wages of selected NME countries.
To value PRC inland freight for inputs shipped by truck, we used Indian freight rates from the following Web site:
For the domestic ground transport of shrimp, we used an Indian refrigerated truck freight rate based on price quotations provided by Petitioners in the investigation of certain frozen warmwater shrimp from the PRC from CTC Freight Carriers of Delhi, India.
To value factory overhead and selling, general and administrative (“SG&A”) expenses, and profit, we used data from the 2004-2005 financial reports of Falcon Marine Exports Limited and Nakkanti Sea Foods Limited. These Indian companies are shrimp producers based on data contained in each Indian company's financial reports. We averaged the ratios for the two companies.
We preliminarily determine that the following margins exist during the period July 16, 2004, through January 31, 2006:
We will
Interested parties who wish to request a hearing or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed.
Issues raised in the hearing will be limited to those raised in case and rebuttal briefs. Case briefs from interested parties may be submitted not later than 30 days of the date of publication of this notice, pursuant to 19 CFR 351.309(c). Rebuttal briefs, limited to issues raised in the case briefs, will be due five days later, pursuant to 19 CFR 351.309(d). Parties who submit case or rebuttal briefs in this proceeding are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument. Parties are also encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited.
The Department will issue the final results of these reviews, including the results of its analysis of issues raised in any such written briefs or at the hearing, if held, not later than 120 days after the date of publication of this notice.
Pursuant to 19 CFR 351.212(b), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of this review. For assessment purposes, where possible, we calculated importer-specific assessment rates for certain frozen warmwater shrimp from the PRC via
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be established in the final results of this review (except, if the rate is zero or
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These administrative and new shipper reviews and notice are in accordance with sections 751(a)(1), 751(a)(2)(B), and 777(i) of the Act and 19 CFR 351.213 and 351.214.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp from India with respect to 70 companies.
We preliminarily determine that sales made by Falcon, HLL, and the Liberty Group have been made below normal value (NV). In addition, based on the preliminary results for the respondents selected for individual review, we have preliminarily determined a weighted-average margin for those companies that were not selected for individual review but were responsive to the Department's requests for information. For those companies which were not responsive to the Department's requests for information, we have preliminarily assigned to them a margin based on adverse facts available (AFA).
If the preliminary results are adopted in our final results of administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on the preliminary results.
March 9, 2007.
Elizabeth Eastwood or Jill Pollack, AD/CVD Operations, Office 2, Import Administration-Room B099, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3874 or (202) 482-4593, respectively.
In February 2005, the Department published in the
On April 7, 2006, the Department published a notice of initiation of administrative review for 347 companies and requested that each provide data on the quantity and value (Q&V) of its exports of subject merchandise to the United States during the POR for mandatory respondent selection purposes. These companies are listed in the Department's notice of initiation.
During the period April 24 through June 12, 2006, we received responses to the Department's Q&V questionnaire from 59 companies. We were unable to locate 29 companies, and we did not receive responses to this questionnaire from the remaining companies.
One of the companies that responded to our Q&V questionnaire, Coastal
Based upon our consideration of the responses received to the Q&V questionnaire and the resources available to the Department, we determined that it was not practicable to examine all exporters/producers of subject merchandise for which a review was requested. As a result, on July 11, 2006, we selected the three largest producers/exporters of certain frozen warmwater shrimp from India during the POR (
On July 21, 2006, we published a notice rescinding the administrative review with respect to 268 companies for which the requests for an administrative review were withdrawn in a timely manner, in accordance with 19 CFR 351.213(d)(1).
On August 8, 2006, we received responses to section A of the questionnaire from Falcon, HLL, and the Liberty Group.
On August 11, 2006, the petitioner submitted comments regarding third country market selection and the possible existence of a “particular market situation” with respect to both Falcon and HLL.
On August 25, 2006, the Department postponed the preliminary results in this review until no later than February 28, 2007.
We issued supplemental section A questionnaires to HLL, Falcon, and the Liberty Group on August 31, 2006.
We received responses to sections B and C of the questionnaire from Falcon and HLL on September 6, 2006, and from the Liberty Group on September 7, 2006. Also on September 7, 2006, HLL submitted a response to section D of the questionnaire.
On September 14, 2006, we published a notice amending the partial rescission of the administrative review to correct a typographical error.
The petitioner requested that the Department initiate a sales-below-cost investigation of the Liberty Group on September 20, 2006, and of HLL on September 21, 2006.
Also on September 21, 2006, we issued a supplemental questionnaire covering sections A through C to the Liberty Group and we received a response to the supplemental section A questionnaire from HLL.
We received responses to the supplemental section A questionnaires from Falcon on September 22, 2006, and from the Liberty Group on September 25, 2006. Also on September 25, 2006, we issued a supplemental questionnaire covering sections B and C to Falcon.
On September 27, 2006, the petitioner requested that the Department initiate a sales-below-cost investigation of Falcon, and the petitioner submitted comments on the selection of the appropriate third country comparison markets for Falcon and HLL.
On October 4, 2006, we initiated a sales-below-cost investigation of the Liberty Group.
On October 5, 2006, we determined that Japan constitutes the appropriate third country comparison market for both Falcon and the Liberty Group, and that France constitutes the appropriate third country comparison market for HLL.
On October 17, 2006, Falcon submitted its supplemental questionnaire response covering sections A through C. On October 20, 2006, Falcon submitted a revised section B questionnaire response reporting sales to Japan. Also on October 20, 2006, Liberty submitted its supplemental questionnaire response covering sections A through C. On October 25, 2006, HLL submitted both a revised section B questionnaire response reporting sales to France and a response to the supplemental section C questionnaire.
On November 3, 2006, we determined that the Department's finding in the less-than-fair- value (LTFV) investigation, that HLL made comparison market sales below the cost of production and that such sales were disregarded, provides sufficient grounds to automatically initiate a sales-below-cost investigation for HLL in this segment of the proceeding.
On November 7, 2006, the Liberty Group submitted a response to section D of the questionnaire. Also on November 7, 2006, we issued a supplemental section D questionnaire to HLL.
On November 13, 2006, we initiated a sales-below-cost investigation for Falcon. See the Memorandum to James Maeder, Director, Office 2, AD/CVD Operations, from The Team entitled, “Petitioners' Allegation of Sales Below the Cost of Production for Falcon Marine Exports Limited,” dated
On November 29, 2006, we issued a supplemental section D questionnaire to the Liberty Group.
On December 5, 2006, we received HLL's response to the supplemental section D questionnaire.
On December 12 and 20, 2006, respectively, Falcon and the Liberty Group responded to section D of the questionnaire. On December 22, 26, and 28, 2006, respectively, we issued supplemental section D questionnaires to Falcon, the Liberty Group, and HLL. We received responses to these questionnaires from Falcon and the Liberty Group on January 11, 2007, and from HLL on January 22, 2007.
On January 23, 2007, we published a correction to the scope of the order in which we clarified that the scope does not cover warmwater shrimp in non-frozen form.
We issued an additional section D supplemental questionnaire to HLL on February 2, 2007, and to the Liberty Group on February 8, 2007. We received responses to these questionnaires on February 9 and 15, 2007, respectively.
Sales and cost verifications were conducted at Falcon and the Liberty Group in January and February 2007. The sales verification reports for Falcon and the Liberty Group were issued in February 2007.
On February 8, 2007, we issued an additional supplemental questionnaire to the Liberty Group regarding its relationship with Liberty Oil Mills Limited (LOML).
On February 12, 2007, Falcon submitted a revised cost database which incorporated certain minor corrections to its data discovered at verification.
On February 15, 2007, we received the Liberty Group's response to the February 8, 2007, supplemental questionnaire.
On February 23 and 26, 2007, respectively, the Liberty Group and Falcon submitted revised sales databases which incorporated certain minor corrections to these companies' data discovered at verification.
The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order.
Excluded from the scope are: 1) breaded shrimp and prawns (HTSUS subheading 1605.20.10.20); 2) shrimp and prawns generally classified in the
The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.
As noted above, in April 2006, Coastal Trawlers informed the Department that it is now doing business under the name Coastal Corp. As a result, on June 1, 2006, we requested that Coastal Corp. address the following four factors with respect to this change in name in order to determine whether Coastal Corp. is the successor-in-interest to Coastal Trawlers: management, production facilities for the subject merchandise, supplier relationships, and customer base.
On June 15, 2006, Coastal Corp. responded to the Department's request. In this submission, Coastal Corp. stated that, in February 2005, Coastal Trawlers changed its name to Coastal Corp., and that the name change had no effect on the core activity of the company. According to Coastal Corp., there were no changes to Coastal Trawlers' management, production facilities for the subject merchandise, supplier relationships, or customer base as a result of the change in corporate structure. Specifically, Coastal Corp. maintains that the only change in production was that the company ceased its deep sea fishing/trawler activities.
Based on our analysis of Coastal Corp.'s June 15, 2006, submission, we preliminarily find that Coastal Trawlers' organizational structure, management, production facilities, supplier relationships, and customers have remained essentially unchanged.
Eight of the companies that responded to the Department's Q&V questionnaire stated that they had no shipments/entries of subject merchandise into the United States during the POR. However, based on information obtained from CBP, it appeared that these eight companies did, in fact, have shipments or entries of subject merchandise entered into the United States during the POR.
Three of the remaining four exporter/producers, Baby Marine (Eastern) Exports, Baby Marine Exports, and Baby Marine Products (collectively, “the Baby Marine Group”), failed to respond to the Department's request for additional information. The remaining company, LOML, is an affiliate of the Liberty Group. Therefore, we are not rescinding the administrative review with respect to these companies. For further information, see the “Application of Facts Available” and “Collapsing the Liberty Group and LOML” sections of this notice.
The Liberty Group has an affiliate, LOML, which exported some of the shrimp produced by the Liberty Group during the POR. In its August 9, 2006, section A response, as well as its February 15, 2007, response and at verification, the Liberty Group provided information regarding the relationship between these entities during the POR. After an analysis of this information, we preliminarily determine that, in accordance with 19 CFR 351.401(f), it is appropriate to collapse these entities for purposes of this review because: 1) certain of the directors of LOML are also directors of Liberty Group companies, and the family which owns the Liberty Group owns a majority of the shares in LOML; 2) LOML exported shrimp produced by the Liberty Group to the United States during the POR; and 3) the operations of LOML and the Liberty Group are intertwined. Thus, there is significant potential for manipulation of price if LOML does not receive the same antidumping duty rate as the Liberty Group. For further discussion, see the Memorandum from Elizabeth Eastwood, Senior Analyst, Office 2, to James Maeder, Director, Office 2, entitled, “Whether to Collapse Liberty Oil Mills Limited with the Liberty Group in the 2004-2006 Administrative Review on Certain Frozen Warmwater Shrimp from India,” dated February 28, 2007.
Section 776(a) of the Act provides that the Department will apply “facts otherwise available” if,
As discussed in the “Background” section above, in April 2006, the Department requested that all companies subject to review respond to the Department's Q&V questionnaire for purposes of mandatory respondent selection. The original deadline to file a response was April 28, 2006. Of the 347 companies initially subject to review, 213 companies did not respond to the Department's initial requests for information. Subsequently, in May 2006, the Department issued letters to these companies affording them a second opportunity to submit a response to the Department's Q&V questionnaire. However, after rescinding this administrative review for 268 companies in July 2006, there were still several companies which failed to respond to the Department's second request for Q&V data.
Furthermore, three additional companies, all within the Baby Marine Group, claimed that they made no shipments of subject merchandise to the United States during the POR. However, because we were unable to confirm the accuracy of the Baby Marine Group's claim with CBP, we requested further information/clarification from these exporters. However, the Baby Marine Group failed to provide the requested information. Finally, an additional exporter, Kadalkanny Frozen Foods, failed to properly file its Q&V response with the Department because it did not
According to section 776(b) of the Act, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available.
Section 776(b) of the Act provides that the Department may use as AFA information derived from: 1) the petition; 2) the final determination in the investigation; 3) any previous review; or 4) any other information placed on the record.
The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
In order to ensure that the margin is sufficiently adverse so as to induce cooperation, we have preliminarily assigned a rate of 82.3 percent, which is the lowest rate alleged in the petition (as adjusted at the initiation of the LTFV investigation).
Information from the petition constitutes secondary information and section 776(c) of the Act provides that the Department shall, to the extent practicable, corroborate that secondary information from independent sources reasonably at its disposal. The Department's regulations provide that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value.
To corroborate the margins in the petition, we compared them to the transaction-specific rates calculated for each respondent in this review. We note that we are unable to corroborate the highest rate alleged in the petition (as adjusted at the initiation of the LTFV investigation) using the data of other respondents, as it is significantly higher than the highest non-aberrational transaction-specific rate calculated for any respondent in this review. However, we find that the lowest rate alleged in the petition (as adjusted at the initiation of the LTFV investigation), 82.30 percent, is reliable and relevant because it is similar to several individual transaction margins calculated for the mandatory respondents.
Further, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department may disregard the margin and determine an appropriate margin.
Because we did not find evidence indicating that the selected margin is not appropriate and because this margin is similar to the range of transactions-specific margins for the mandatory respondents, we have preliminarily determined that the 82.3 percent margin, as alleged in the petition and adjusted at the initiation of the LTFV investigation, is appropriate as AFA. We are assigning this rate to Amison Foods Ltd., Amison Seafoods Ltd., the Baby Marine Group, Cherukattu Industries (Marine Div), Global Sea Foods & Hotels Ltd, HA & R Enterprises, InterSea Exports Corporation, Kadalkanny Frozen Foods, Lotus Sea Farms, National Steel, National Steel & Agro Ind, Nsil Exports, Premier Marine Foods, R F. Exports, and Vaibhav Sea Foods. For company-specific information used to corroborate this
To determine whether sales of certain frozen warmwater shrimp by Falcon, HLL, and the Liberty Group to the United States were made at less than NV, we compared EP to the NV, as described in the “Export Price” and “Normal Value” sections of this notice.
Pursuant to section 777A(d)(2) of the Act, we compared the EPs of individual U.S. transactions to the weighted-average NV of the foreign like product where there were sales made in the ordinary course of trade, as discussed in the “Cost of Production Analysis” section below.
In accordance with section 771(16) of the Act, we considered all products produced by Falcon, HLL, and the Liberty Group covered by the description in the “Scope of the Order” section, above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), we compared U.S. sales of non-broken shrimp to sales of non-broken shrimp made in Japan (for Falcon and the Liberty Group) and France (for HLL) within the contemporaneous window period, which extends from three months prior to the month of the first U.S. sale until two months after the last U.S. sale. Where there were no non-broken sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by Falcon, HLL, and the Liberty Group in the following order: cooked form, head status, count size, organic certification, shell status, vein status, tail status, other shrimp preparation, frozen form, flavoring, container weight, presentation, species, and preservative.
For all U.S. sales made by Falcon, HLL, and the Liberty Group, we used EP methodology, in accordance with section 772(a) of the Act, because the subject merchandise was sold directly to the first unaffiliated purchaser in the United States prior to importation and constructed export price (CEP) methodology was not otherwise warranted based on the facts of record.
We based EP on packed prices to the first unaffiliated purchaser in the United States. We made deductions from the starting price for cold storage expenses, inland freight expenses, wharfage charges, loading expenses, inspection fees, other miscellaneous shipment charges, foreign brokerage and handling expenses, international freight expenses, U.S. customs duties, and U.S. brokerage and handling expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act. We also made deductions for export taxes in accordance with section 772(c)(2)(B) of the Act.
We based EP on packed prices to the first unaffiliated purchaser in the United States. We made deductions from the starting price for inland freight expenses, port dues, terminal handling charges, other shipment expenses, foreign brokerage and handling expenses, international freight expenses, marine insurance, U.S. customs duties, and U.S. brokerage and handling expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act. We also made deductions for export taxes in accordance with section 772(c)(2)(B) of the Act.
We based EP on packed prices to the first unaffiliated purchaser in the United States. Where appropriate, we made adjustments for billing adjustments. We made deductions from the starting price for cold storage charges, inland freight expenses, other shipment and movement expenses, foreign brokerage and handling expenses, shipment related expenses, international freight expenses, terminal handling charges, U.S. customs duties, and U.S. brokerage and handling expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act. We also made deductions for export taxes, in accordance with section 772(c)(2)(B) of the Act.
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act.
We determined that aggregate volume of home market sales of the foreign like product for Falcon, HLL, and the Liberty Group was insufficient to permit a proper comparison with U.S. sales of the subject merchandise. Therefore, with respect to Falcon and the Liberty Group, we used sales to Japan, and, with respect to HLL, we used sales to France as the basis for comparison-market sales in accordance with section 773(a)(1)(C) of the Act and 19 CFR 351.404 because, among other things, sales of foreign like product in these third country markets were the most similar to the subject merchandise.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (
In this administrative review, we obtained information from each respondent regarding the marketing stages involved in making the reported foreign market and U.S. sales, including a description of the selling activities performed by each respondent for each channel of distribution. Company-specific LOT findings are summarized below.
Falcon reported that it made EP sales in the U.S. market to trading companies and distributors. Because Falcon reported no difference in the selling activities it performed for these two customer categories, we find that there is only one channel of distribution for Falcon's EP sales. We examined the selling activities performed for this channel and found that Falcon performed the following selling functions: 1) customer contact; 2) price negotiation; 3) order processing; 4) invoice issuance; 5) arranging for freight and the provision of customs clearance/brokerage services; 6) cold storage and inventory maintenance; 7) quality assurance related activities; 8) commission payments; 9) payment receipt; and 10) packaging services. These selling activities can be generally grouped into four core selling function categories for analysis: 1) sales and marketing; 2) freight and delivery; 3) inventory maintenance and warehousing; and, 4) warranty and technical support. Accordingly, based on the core selling functions, we find that Falcon performed sales and marketing, freight and delivery services, and inventory maintenance and warehousing for U.S. sales. Because all sales in the United States are made through a single distribution channel, we preliminarily determine that there is one LOT in the U.S. market.
With respect to the third country market, Falcon reported that it made sales to trading companies. We examined the selling activities performed for third country sales, and found that Falcon performed the following selling functions: 1) customer contact; 2) price negotiation; 3) order processing; 4) invoice issuance; 5) arranging for freight and the provision of customs clearance/brokerage services; 6) cold storage and inventory maintenance; 7) quality assurance related activities; 8) commission payments; 9) payment receipt; and 10) packaging services. Accordingly, based on the core selling functions, we find that Falcon performed sales and marketing, freight and delivery services, and inventory maintenance and warehousing for third country sales. Because all third country sales are made through a single distribution channel, we preliminarily determine that there is one LOT in the third country market for Falcon.
Finally, we compared the EP LOT to the third country market LOT and found that the core selling functions performed for U.S. and third country market customers do not differ. Therefore, we determined that sales to the U.S. and third country markets during the POR were made at the same LOT, and as a result, no LOT adjustment was warranted.
HLL reported that it made EP sales in the U.S. market to distributors. We examined the selling activities performed for this channel and found that HLL performed the following selling functions: 1) customer contact; 2) price negotiation; 3) order processing; 4) production scheduling; 5) arranging for freight and the provision of customs clearance/brokerage services; 6) quality assurance related activities; 7) arranging for a refrigerated container; and 8) payment receipt. Accordingly, based on the core selling functions noted above, we find that HLL performed sales and marketing and freight and delivery services for U.S. sales. Because all sales in the United States are made through a single distribution channel, we preliminarily determine that there is one LOT in the U.S. market.
With respect to the third country market, HLL reported that it also made sales only to distributors. We examined the selling activities performed for third country sales and found that HLL performed the following selling functions: 1) customer contact; 2) price negotiation; 3) order processing; 4) production scheduling; 5) arranging for freight and the provision of customs clearance/brokerage services; 6) quality assurance related activities; 7) arranging for a refrigerated container; and 8) payment receipt. Accordingly, based on the core selling functions, we find that HLL performed sales and marketing and freight and delivery services for third country sales. Because all third country sales are made through a single distribution channel, we preliminarily determine that there is one LOT in the third country market for HLL.
Finally, we compared the EP LOT to the third country market LOT and found that the core selling functions performed for U.S. and third country market customers do not differ. Therefore, we determined that sales to the U.S. and third country markets during the POR were made at the same LOT, and as a result, no LOT adjustment was warranted.
The Liberty Group reported that it made EP sales in the U.S. market to trading companies. We examined the selling activities performed for this channel and found that the Liberty Group performed the following selling functions: 1) customer contact; 2) price negotiation; 3) order processing; 4) invoice issuance; 5) arranging for freight and the provision of customs clearance/brokerage services; 6) cold storage and inventory maintenance; 7) quality assurance related activities; 8) commission payments; 9) payment receipt; and 10) packaging services. Accordingly, based on the core selling functions noted above, we find that the Liberty Group performed sales and marketing, freight and delivery services, and inventory maintenance and warehousing for U.S. sales. Because all sales in the United States are made through a single distribution channel, we preliminarily determine that there is one LOT in the U.S. market.
With respect to the third country market, the Liberty Group reported that it made sales to trading companies. We examined the selling activities performed for third country sales, and found that the Liberty Group performed the following selling functions: 1) customer contact; 2) price negotiation; 3) order processing; 4) invoice issuance; 5) arranging for freight and the provision of customs clearance/brokerage services; 6) cold storage and inventory maintenance; 7) quality assurance related activities; 8) commission payments; 9) payment receipt; and 10) packaging services. Accordingly, based on the core selling
Finally, we compared the EP LOT to the third country market LOT and found that the core selling functions performed for U.S. and third country market customers do not differ. Therefore, we determined that sales to the U.S. and third country markets during the POR were made at the same LOT, and as a result, no LOT adjustment was warranted.
Based on our analysis of the petitioner's allegations, we found that there were reasonable grounds to believe or suspect that Falcon and the Liberty Group's sales of frozen warmwater shrimp in the third country comparison markets were made at prices below their cost of production (COP). Accordingly, pursuant to section 773(b) of the Act, we initiated sales-below-cost investigations to determine whether Falcon's and the Liberty Group's sales were made at prices below their respective COPs.
Regarding HLL, we found that HLL had made sales below the COP in the LTFV investigation, the most recently completed segment of this proceeding as of the date the questionnaire was issued in this review, and such sales were disregarded.
In accordance with section 773(b)(3) of the Act, we calculated the respondents' COPs based on the sum of their costs of materials and conversion for the foreign like product, plus amounts for G&A expenses and interest expenses (
The Department relied on the COP data submitted by each respondent in its most recently submitted cost database for the COP calculation, except for the following instances:
1. Falcon did not provide the Department with cost data for a small number of products sold in the comparison market during the window periods. Thus, as neutral facts available, we assigned these products the cost of the most similar product reported in the cost database.
2. Falcon adjusted its standard cost of raw shrimp purchased for each count size to the actual cost of raw shrimp by applying a variance (
3. We revised Falcon's raw shrimp cost by reallocating the costs from Falcon's shrimp farms only to those species and count sizes that could have been raised on the farms.
4. We revised the costs for packaging, labor, variable overhead, and fixed overhead (FOH) to base them on production quantities that were glaze-exclusive. We also revised FOH to allocate depreciation expenses to block frozen, individually quick frozen, and cooked products.
5. We revised the reported G&A expense ratio by reclassifying certain expenses from the cost of goods sold to G&A expenses.
6. We revised the net financial expense ratio by excluding the deduction for the profit on the sale of securities, and only including a deduction for interest income from short-term sources.
1. HLL did not provide the Department with cost data for a small number of products sold in the comparison market during the window periods. Thus, as neutral facts available, we assigned these products the cost of the most similar product reported in the cost database.
2. We adjusted HLL's reported raw shrimp consumption cost to account for an understatement.
3. We revised HLL's reported G&A expense ratio to include in the numerator certain items related to research and development, supply support and chain management, and restructuring costs. Moreover, we included the surplus of fixed assets sold and miscellaneous income as offsets to the G&A expenses. In addition, we excluded from the cost of sales, used as the denominator in calculating the G&A expense ratio, excise duties and packing material costs, and included the 2005 fiscal year increase in finished goods inventory.
4. We revised the net financial expenses to include pension costs and similar obligations.
1. We revised the cost data reported for all Liberty Group companies to account for minor corrections found during the cost verification.
2. We revised DMF's shrimp direct material costs to exclude certain by-product revenues.
3. We revised DMF's inner packing costs to exclude the revenue related to the sale of outer packing materials.
4. We revised KEPL's variable overhead costs to exclude premiums paid on duty export passbook benefits.
5. We revised the application of the G&A expense ratio from a single weighted-average rate applied to all Liberty Group companies to applying each Liberty Group entity's specific G&A expense ratio to its specific cost of manufacture. We continued to allocate certain G&A expenses to all Liberty Group companies. We revised each Liberty Group company's costs of sales, used as the denominator in calculating the G&A expense ratio, to include the change in finished goods inventory. We reclassified certain expenses for DMF from production to G&A. Finally, we included certain expenses related to the loss on a sale of a fixed asset in the calculation of PMP's G&A expenses.
6. The Liberty Group does not prepare consolidated financial statements in the normal course of business. Therefore, we revised the application of the financial expense ratio by applying each Liberty Group company's specific financial expense ratio to its specific cost of manufacture. We also revised each Liberty Group company's costs of sales, used as the denominator in calculating the financial expense ratio, to include the change in finished goods inventory. Finally, we included certain bank charges in each entity's financial expenses.
On a product-specific basis, we compared the adjusted weighted-average COP to the third country sales prices of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used COP exclusive of selling and packing expenses. The prices (inclusive of billing adjustments, where appropriate) were exclusive of any applicable movement charges, rebates, direct and indirect selling expenses and packing expenses, revised where appropriate, as discussed below under the “Price-to-Price Comparisons” section.
In determining whether to disregard third country sales made at prices below the COP, we examined, in accordance with sections 773(b)(1)(A) and (B) or the Act: 1) whether, within an extended period of time, such sales were made in substantial quantities; and 2) whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. Where less than 20 percent of the respondent's third country sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard the below-cost sales when: 1) they were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act, and 2) based on our comparison of prices to the weighted-average COPs for the POR, they were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
We found that, for certain products, more than 20 percent of Falcon's, HLL's, and the Liberty Group's third country sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
For those U.S. sales of subject merchandise for which there were no useable third country sales in the ordinary course of trade, we compared EPs to the CV in accordance with section 773(a)(4) of the Act. See “Calculation of Normal Value Based on Constructed Value” section below.
We based NV for Falcon on delivered prices to unaffiliated customers in the third country market. We made deductions from the starting price for export taxes, in accordance with section 773(a)(6)(B)(iii) of the Act. We also made deductions, where appropriate, from the starting price for inland freight expenses from the plant to the port, other shipment and movement expenses, clearing and forwarding agency charges, cold storage charges, international freight expenses, and terminal handling charges, under section 773(a)(6)(B)(ii) of the Act.
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for commissions, credit expenses, bank fees, export inspection agency (EIA) expenses, export credit guarantee corporation premiums, and outside inspection/lab expenses. Specifically, where commissions were granted in the U.S. market but not in the comparison market, we made a downward adjustment to NV for the lesser of: 1) the amount of commission paid in the U.S. market; or 2) the amount of indirect selling expenses incurred in the comparison market. If commissions were granted in the comparison market but not in the U.S. market, we made an upward adjustment to NV following the same methodology.
We also deducted third country packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act.
We based NV for HLL on cost and freight, delivered, and free on board prices to unaffiliated customers in the third county market. We made adjustments, where appropriate, to the starting price for export taxes, in accordance with section 773(a)(6)(B)(iii) of the Act. We also made deductions, where appropriate, from the starting price for inland freight expenses from the plant to the port, other shipment and movement expenses, shipment-related expenses, international freight expenses, and terminal handling charges, under section 773(a)(6)(B)(ii) of the Act.
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for commissions, credit expenses, bank fees, EIA inspection fees, and outside inspection/lab expenses. Specifically, where
We also deducted third country packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act.
We based NV for the Liberty Group on delivered prices to unaffiliated customers in the third country market. We made deductions from the starting price for export taxes, in accordance with section 773(a)(6)(B)(iii) of the Act. We also made deductions, where appropriate, from the starting price for inland freight expenses from the plant to the port, other shipment and movement expenses, clearing and forwarding agency charges, shipment-related expenses, cold storage charges, international freight expenses, and terminal handling charges, under section 773(a)(6)(B)(ii) of the Act.
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for commissions, credit expenses, bank fees, EIA inspection fees, and outside inspection/lab expenses. Specifically, where commissions were granted in the U.S. market but not in the comparison market, we made a downward adjustment to NV for the lesser of: 1) the amount of commission paid in the U.S. market; or 2) the amount of indirect selling expenses incurred in the comparison market. If commissions were granted in the comparison market but not in the U.S. market, we made an upward adjustment to NV following the same methodology.
We also deducted third country packing costs and added U.S. packing costs, in accordance with section 773(a)(6)(A) and (B) of the Act.
Section 773(a)(4) of the Act provides that where NV cannot be based on comparison-market sales, NV may be based on CV. Accordingly, for those frozen warmwater shrimp products for which we could not determine the NV based on comparison-market sales, either because there were no useable sales of a comparable product or all sales of the comparable products failed the COP test, we based NV on CV.
Section 773(e) of the Act provides that CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for SG&A expenses, profit, and U.S. packing costs. For each respondent, we calculated the cost of materials and fabrication based on the methodology described in the “Cost of Production Analysis” section, above. We based SG&A and profit for each respondent on the actual amounts incurred and realized by the respondents in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the comparison market, in accordance with section 773(e)(2)(A) of the Act.
We made adjustments to CV for differences in circumstances of sale in accordance with section 773(a)(8) of the Act and 19 CFR 351.410. For comparisons to EP, we made circumstance-of-sale adjustments by deducting direct selling expenses incurred on comparison market sales from, and adding U.S. direct selling expenses to, CV.
We made currency conversions into U.S. dollars for HLL and the Liberty Group in accordance with section 773A of the Act and 19 CFR 351.415, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
Regarding Falcon, this respondent reported that it purchased forward exchange contracts which were used to convert the currency in which certain sales transactions were made into home market currency. Under 19 CFR 351.415(b), if a currency transaction on forward markets is directly linked to an export sale under consideration, the Department is directed to use the exchange rate specified with respect to such foreign currency in the forward sale agreement to convert the foreign currency.
We preliminarily determine that weighted-average dumping margins exist for the respondents for the period August 4, 2004, through January 31, 2006, as follows:
The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, Room B-099, within 30 days of the date of publication of this notice. Requests should contain: 1) the party's name, address and telephone number; 2) the number of participants; and, 3) a list of issues to be discussed.
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP 15 days after the date of publication of the final results of this review.
For Falcon, HLL, and the Liberty Group, because these companies reported the entered value for some of their U.S. sales, we will calculate importer-specific
For the responsive companies which were not selected for individual review, we will calculate an assessment rate based on the weighted average of the cash deposit rates calculated for the companies selected for individual review excluding any which are
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: 1) the cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp from Thailand with respect to 27 companies.
We preliminarily determine that sales were made by Good Luck Product, Pakfood, and Thai I-Mei below normal value (NV). In addition, based on the preliminary results for the respondents selected for individual review, we have preliminarily determined a weighted-average margin for those companies that were not selected for individual review but were responsive to the Department's requests for information. For those companies which were not responsive to the Department's requests for information, we have preliminarily assigned to them a margin based on adverse facts available (AFA).
If the preliminary results are adopted in our final results of administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on the preliminary results.
March 9, 2007.
Irina Itkin or Alice Gibbons, AD/CVD Operations, Office 2, Import Administration-Room B099, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0656 or (202) 482-0498, respectively.
In February 2005, the Department published in the
On April 7, 2006, the Department published a notice of initiation of administrative review for 145 companies and requested that each provide data on the quantity and value (Q&V) of its exports of subject merchandise to the United States during the POR for mandatory respondent selection purposes. These companies are listed in the Department's notice of initiation.
During the period April 24, 2006, through July 10, 2006, we received responses to the Department's Q&V questionnaire from 106 companies.
Based upon our consideration of the responses to the Q&V questionnaire received and the resources available to the Department, we determined that it was not practicable to examine all exporters/producers of subject merchandise for which a review was requested. As a result, on July 11, 2006, we selected the three largest producers/exporters of certain frozen warmwater shrimp from Thailand during the POR, Good Luck Product, Pakfood, and Thai I-Mei, as the mandatory respondents in this proceeding.
On July 20, 2006, we published a notice rescinding the administrative review with respect to 112 companies for which the requests for an administrative review were withdrawn in a timely manner, in accordance with 19 CFR 351.213(d)(1).
On August 3, 2006, we published a notice amending the partial rescission of the administrative review to correct a typographical error.
We received responses to section A of the questionnaire from Pakfood on August 8, 2006, and from Good Luck Product and Thai I-Mei on August 16, 2006.
On August 25, 2006, the Department postponed the preliminary results in this review until no later than February 28, 2007.
On August 29, 2006, the petitioner submitted comments regarding home market viability with respect to Good Luck Product and Pakfood.
We received responses to sections B and C of the questionnaire from Pakfood and Good Luck Product on September 1 and 5, 2006, respectively. In addition, we received a response to sections C and D of the questionnaire from Thai I-Mei on September 5, 2006.
On September 8 and 13, 2006, Pakfood and Good Luck Product, respectively, responded to the petitioner's comments regarding home market viability. For further discussion, see “Home Market Viability and Selection of Comparison Markets” section of this notice.
On September 14, 2006, we published an additional notice amending the partial rescission of the administrative review to correct a typographical error.
We received comments from the petitioner on September 15, 2006, regarding the application of the multinational corporation (MNC) provision in section 773(d) of the Act with respect to Thai I-Mei.
On September 19, 2006, we issued a supplemental sales questionnaire to Pakfood.
On September 20, 2006, the petitioner requested that the Department initiate a sales-below-cost investigation of Pakfood.
On September 21, 2006, we issued a supplemental sales questionnaire to Thai I-Mei.
On September 26, 2006, Thai I-Mei submitted a response to the petitioner's comments regarding the application of the MNC provision in section 773(d) of the Act with respect to Thai I-Mei.
On September 27, 2006, we issued a supplemental sales questionnaire to Good Luck Product.
We initiated a sales-below-cost investigation for Pakfood on October 3, 2006.
We received Pakfood's supplemental response on October 17, 2006. Also on October 17, 2006, we issued a supplemental cost questionnaire to Thai I-Mei.
We received supplemental sales responses from Thai I-Mei and Good Luck Product on October 23 and 26, 2006, respectively.
On October 27, 2006, the petitioner requested that the Department initiate a sales-below-cost investigation of Good Luck Product. This investigation for Good Luck Product was initiated on October 30, 2006.
Pakfood submitted a response to section D of the questionnaire on November 2, 2006.
On November 14, 2006, we issued a second sales supplemental questionnaire to Good Luck Product.
We received a response to the supplemental cost questionnaire from Thai I-Mei on November 15, 2006.
On November 16, 2006, we issued a supplemental cost questionnaire to Pakfood.
We received a second supplemental sales response, as well as a response to section D of the questionnaire from Good Luck Product on November 22 and 30, 2006, respectively.
On December 7, 2006, we issued a second sales supplemental questionnaire to Thai I-Mei. Also, on December 8, 2006, we issued a supplemental cost questionnaire to Good Luck Product.
We received a supplemental cost response from Pakfood on December 14, 2006.
On December 21, 2006, we issued a supplemental cost questionnaire to Thai I-Mei.
Sales verifications were conducted at Good Luck Product and Pakfood in December 2006. Sales verification reports were issued in January and February 2007 for Pakfood and Good Luck Product, respectively.
On January 4, 2007, we received Good Luck Product's supplemental cost response, as well as Thai I-Mei's second supplemental sales response. In addition, we received a supplemental cost response from Thai I-Mei on January 10, 2006.
On January 11, 2007, we issued a third supplemental sales questionnaire to Thai I-Mei.
On January 19, 2007, based on the information on the record, we found that the MNC provision does not apply to Thai I-Mei. For further discussion, see the Memorandum to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration from The Team entitled, “Application of the Multinational Corporation Provision,” dated January 19, 2007.
We received Thai I-Mei's third supplemental sales response on January 23, 2007. Also on this date, we published a correction to the scope of the order in which we clarified that the scope does not cover warmwater shrimp in non-frozen form.
On January 24 and February 14, 2007, respectively, Pakfood and Good Luck Product submitted revised sales databases which incorporated certain minor corrections to these companies' data discovered at verification.
We conducted cost verifications at Good Luck Product and Pakfood in January and February 2007.
The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the
The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.
Eight of the companies that responded to the Department's Q&V questionnaire stated that they had no shipments/entries of subject merchandise into the United States during the POR. However, based on information obtained from CBP, it appeared that these companies did, in fact, have shipments or entries of subject merchandise that entered into the United States during the POR.
Based on either responses to the Department's solicitation or the CBP information, we have preliminarily determined that entries at issue by four of the eight exporters/producers, Bangkok Dehydrated Marine Product, Siam Ocean,
One of the remaining exporters/producers, Siam Intersea Co., Ltd., provided additional information to the Department indicating that it did, in fact, have a reportable transaction during the POR. Therefore, we are not rescinding the administrative review with respect to this company and are preliminarily assigning to it a weighted-average margin calculated for the companies selected for individual review because, based on its response: (1) The discrepancy between the Q&V questionnaire response and the CBP data appeared to be an inadvertent oversight; (2) the quantity of the exports in question was so small that it would not have impacted our selection of respondents; and, (3) the company has been responsive to our requests for information.
In addition, of the remaining two exporters/producers, NR Instant Produce
Finally, the remaining exporter/producer, Thai World,
Section 776(a) of the Act provides that the Department will apply “facts otherwise available” if,
As discussed in the “Background” section, above, in April 2006, the
Furthermore, one company, Thai World, claimed that it made no shipments of subject merchandise to the United States during the POR. Because we were unable to confirm the accuracy of Thai World's claim with CBP, we requested further information/clarification from it. However, Thai World failed to provide the requested information/clarification. By doing so, Thai World withheld requested information and significantly impeded the proceeding. Therefore, pursuant to sections 776(a)(2)(A) and (C) of the Act, the Department also preliminarily finds that the use of total facts available with respect to Thai World is appropriate.
According to section 776(b) of the Act, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available.
Section 776(b) of the Act provides that the Department may use as AFA information derived from: (1) The petition; (2) the final determination in the investigation; (3) any previous review; or (4) any other information placed on the record.
The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
In order to ensure that the margin is sufficiently adverse so as to induce cooperation, we have preliminarily assigned a rate of 57.64 percent, which is the highest rate alleged in the petition, as adjusted at the initiation of the less-than-fair-value (LTFV) investigation.
Information from prior segments of the proceeding constitutes secondary information and section 776(c) of the Act provides that the Department shall, to the extent practicable, corroborate that secondary information from independent sources reasonably at its disposal. The Department's regulations provide that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value.
To corroborate the petition margin, we compared it to the transaction-specific rates calculated for each respondent in this review. We find that it is reliable and relevant because the petition rate fell within the range of individual transaction margins calculated for the mandatory respondents.
Further, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department may disregard the margin and determine an appropriate margin.
Because we did not find evidence indicating that the selected margin is not appropriate and because this margin falls within the range of transaction-specific margins for the mandatory respondents, we have preliminarily determined that the 57.64 percent margin, as alleged in the petition and adjusted at the initiation of the LTFV investigation, is appropriate as AFA. We are assigning this rate to Anglo-Siam Seafoods, Fortune Frozen Foods, Gallant Ocean, Li-Thai, Queen Marine Food, Smile Heart Foods, and Thai World. For company-specific information used to corroborate this rate, see the Memorandum to the File from Brianne Riker, Analyst, Office 2, AD/CVD Operations, entitled “Corroboration of Adverse Facts Available Rate for the Preliminary Results in the 2004-2006 Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from Thailand,” dated February 28, 2007.
To determine whether sales of certain frozen warmwater shrimp from Thailand to the United States were made at less than NV, we compared the export price (EP) or constructed export price (CEP) to the NV, as described in the “Constructed Export Price/Export Price” and “Normal Value” sections of this notice.
Pursuant to section 777A(d)(2) of the Act, for Good Luck Product and Pakfood, we compared the EPs of individual U.S. transactions to the weighted-average NV of the foreign like product where there were sales made in the ordinary course of trade, as discussed in the “Cost of Production Analysis” section below.
Regarding Thai I-Mei, we have determined that this company did not have a viable home or third country market during the POR. Therefore, as the basis for NV, we used constructed value (CV) when making comparisons to CEP for Thai I-Mei in accordance with section 773(a)(4) of the Act.
In accordance with section 771(16) of the Act, we considered all products produced by Good Luck Product and Pakfood covered by the description in the “Scope of the Order” section, above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), we compared U.S. sales of shrimp to sales of shrimp made in the home market for Good Luck Product and Pakfood within the contemporaneous window period, which extends from three months prior to the month of the U.S. sale until two months after the sale. Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales of shrimp to sales of shrimp of the most similar foreign like product made in the ordinary course of trade. For Good Luck Product and Pakfood, where there were no sales of identical or similar merchandise, and for all Thai I-Mei sales, we made product comparisons using CV.
With respect to sales comparisons involving broken shrimp, we compared Pakfood's sales of broken shrimp in the home market to its sales of comparable quality shrimp to the United States.
In making the product comparisons, we matched foreign like products based on the physical characteristics reported by Good Luck Product and Pakfood in the following order: cooked form, head status, count size, organic certification, shell status, vein status, tail status, other shrimp preparation, frozen form, flavoring, container weight, presentation, species, and preservative.
For all U.S. sales made by Good Luck Product and Pakfood we used EP methodology, in accordance with section 772(a) of the Act, because the subject merchandise was sold directly to the first unaffiliated purchaser in the United States prior to importation and CEP methodology was not otherwise warranted based on the facts of record.
For U.S. sales made by Thai I-Mei, we calculated CEP in accordance with section 772(b) of the Act because the subject merchandise was sold for the account of Thai I-Mei by its subsidiary, Ocean Duke Corporation, in the United States to unaffiliated purchasers.
We based EP on packed prices to the first unaffiliated purchaser in the United States. Where appropriate, we made adjustments for billing adjustments. We made deductions from the starting price for foreign inland freight expenses (
We based EP on packed prices to the first unaffiliated purchaser in the United States. Where appropriate, we made adjustments for billing adjustments and discounts. We made deductions from the starting price for foreign inland freight expenses, foreign warehousing expenses, gate charges, survey fees, foreign brokerage and handling expenses, ocean freight expenses, U.S. brokerage expenses, and U.S. customs duties, where appropriate, in accordance with section 772(c)(2)(A) of the Act.
Regarding warehousing expenses, Pakfood reported that certain of these services were provided by an affiliated party. At verification, we tested the warehousing expenses charged by the affiliated party to determine whether the prices charged were at “arm's length.” Where we found that the prices were not at arm's length, we adjusted them to be equivalent to the market price. For further discussion, see the Memorandum to the File from Irina Itkin and Brianne Riker entitled, “Verification of the Sales Response of Pakfood Public Company Limited in the Antidumping Duty Administrative Review on Certain Frozen Warmwater Shrimp from Thailand” (“Pakfood Verification Report”), dated January 19, 2007.
In accordance with section 772(b) of the Act, we calculated CEP for those sales where the merchandise was first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter. For Thai I-Mei's direct shipments, we used the earlier of shipment date from Thailand to the customer or the U.S. affiliate's invoice date as the date of sale, in accordance with our practice.
We based CEP on the packed delivered prices to unaffiliated purchasers in the United States. Where appropriate, we made adjustments for billing adjustments. We made deductions from the starting price for foreign inland freight, foreign inland insurance, foreign brokerage and handling expenses, ocean freight expenses, marine insurance expenses, U.S. brokerage and handling, U.S. customs duties, U.S. inland insurance, U.S. inland freight expenses, and U.S. warehousing expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act. In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
Pursuant to section 772(d)(3) of the Act, we calculated an amount for profit to arrive at CEP. In accordance with section 772(f)(2)(C)(iii) of the Act, we based the CEP profit rate on Thai I-Mei's financial statements because Thai I-Mei made sales during the POR solely to the United States. For further discussion, see the Memorandum to the File from Alice Gibbons, Senior Analyst, Office 2, AD/CVD Operations, entitled, “Calculations Performed for Thai I-Mei Frozen Foods Co., Ltd. for the Preliminary Results in the 2004-2006 Antidumping Duty Administrative Review on Certain Frozen Warmwater Shrimp from Thailand,” dated February 28, 2007.
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act. Based on this comparison, we determined that Good Luck Product and Pakfood had viable home markets during the POR. Consequently, we based NV on home market sales for these respondents.
However, the petitioner has argued throughout this review that a large portion of Pakfood's home market is not legitimate (therefore, making its home market not viable) because there is no significant market for frozen shrimp in Thailand. In response, Pakfood has argued that its reported home market sales are legitimate because they: (1) Were exclusively of foreign like product; (2) were for consumption in Thailand; and, (3) do not constitute a particular market situation. At verification we thoroughly examined this issue and confirmed Pakfood's assertions regarding its home market sales. For further discussion, see the “Pakfood Verification Report.”
Further, we determined that Thai I-Mei's aggregate volumes of home and third country market sales of the foreign like product were insufficient to permit a proper comparison with U.S. sales of the subject merchandise. Therefore, we used CV as the basis for calculating NV for Thai I-Mei, in accordance with section 773(a)(4) of the Act.
During the POR, Good Luck Product and Pakfood sold the foreign like product to affiliated customers. To test whether these sales were made at arm's-length prices, we compared, on a product-specific basis, the starting prices of sales to affiliated and unaffiliated customers, net of all discounts and rebates, movement charges, direct selling expenses, and packing expenses. Pursuant to 19 CFR 351.403(c) and in accordance with the Department's practice, where the price to the affiliated party was, on average, within a range of 98 to 102 percent of the price of the same or comparable merchandise sold to unaffiliated parties, we determined that sales made to the affiliated party were at arm's length.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (
In this administrative review, we obtained information from each respondent regarding the marketing stages involved in making the reported foreign market and U.S. sales, including a description of the selling activities performed by each respondent for each channel of distribution. Company-specific LOT findings are summarized below.
Good Luck Product reported that it made EP sales in the U.S. market through a single channel of distribution (
With respect to the home market, Good Luck Product made sales through the following channels of distribution: (1) Spot sales; (2) sales to a Thai retailer; and, (3) sales through retail arrangements. Good Luck Product stated that its home market sales were made at the same LOT, regardless of distribution channel. We examined the selling activities performed for spot sales and found that Good Luck Product performed the following selling functions: order input/processing, providing direct sales personnel, providing commission payment, claim services (
Finally, we compared the EP LOT to the home market LOT and found that the core selling functions performed for U.S. and home market customers do not differ significantly. Therefore, we determined that sales to the U.S. and home markets during the POR were made at the same LOT, and as a result, no LOT adjustment was warranted.
Pakfood reported that it made EP sales in the U.S. market through a single channel of distribution (
With respect to the home market, Pakfood made sales to distributors, retailers, and end-users. Pakfood stated that its home market sales were made through a single channel of distribution, regardless of customer category. We examined the selling activities performed for this channel, and found that Pakfood performed the following selling functions: sales forecasting/market research, sales promotion/trade shows/advertising, customer contact, price negotiation, order processing, invoice issuance, delivery services, providing direct sales personnel, payment receipt, and packing. Accordingly, based on the core selling functions, we find that Pakfood performed sales and marketing, freight and delivery services, and inventory maintenance and warehousing at the same relative level of intensity for all customers in the home market. Because all sales in the home market are made through a single distribution channel, we preliminarily determine that there is one LOT in the home market.
Finally, we compared the EP LOT to the home market LOT and found that the core selling functions performed for U.S. and home market customers are virtually identical. Therefore, we determined that sales to the U.S. and home markets during the POR were made at the same LOT, and as a result, no LOT adjustment was warranted.
With respect to Thai I-Mei, this exporter had no viable home or third country market during the POR. Therefore, we based NV on CV. When NV is based on CV, the NV LOT is that of the sales from which we derive selling, general, and administrative (SG&A) expenses and profit.
Thai I-Mei reported that it made sales through six channels of distribution in the United States; however, it stated that the selling activities it performed did not vary by channel of distribution. Thai I-Mei reported performing the following selling functions for sales to its U.S. affiliate: order input/processing, providing direct sales personnel, warranty service, freight and delivery services, and packing. Accordingly, based on the core selling functions, we find that Thai I-Mei performed sales and marketing, freight and delivery services, and warranty services for sales to its U.S. affiliate. Because Thai I-Mei's selling activities did not vary by distribution channel, we preliminarily determine that there is one LOT in the U.S. market.
As noted above, we find that Good Luck Product and Pakfood performed the following core selling functions: sales and marketing, freight and
Regarding the CEP-offset provision, as described above, it is appropriate only if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability. Because we find that no difference in LOTs exists, we do not find that a CEP offset is warranted for Thai I-Mei.
Based on our analysis of the petitioner's allegations, we found that there were reasonable grounds to believe or suspect that Good Luck Product's and Pakfood's sales of frozen warmwater shrimp in the home market were made at prices below their cost of production (COP). Accordingly, pursuant to section 773(b) of the Act, we initiated sales-below-cost investigations to determine whether Good Luck Product's and Pakfood's sales were made at prices below their respective COPs.
In accordance with section 773(b)(3) of the Act, we calculated the respondents' COPs based on the sum of their costs of materials and conversion for the foreign like product, plus amounts for G&A expenses and interest expenses (
The Department relied on the COP data submitted by each respondent in its most recent supplemental section D questionnaire response for the COP calculation, except for the following instances where the information was not appropriately quantified or valued:
a. Good Luck Product
1. We adjusted Good Luck Product's reported G&A expenses to exclude an offset claimed for trade fair income because the cost of the products sold was already deducted from the reported costs.
2. We adjusted the cost of sales denominator used to calculate the G&A and financial expense ratios to deduct certain shrimp purchases that were erroneously double-booked by Good Luck Product and removed from the reported costs.
3. Good Luck Product did not remove packing costs from the denominator used to calculate the G&A and financial expense ratios. Therefore, we applied these rates to the reported cost of manufacturing, including packing expenses.
Our revisions to Good Luck Product's COP data are discussed in the Memorandum from Christopher Zimpo, Accountant, to Neal Halper, Director, Office of Accounting, entitled “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Results—Good Luck Product Co., Ltd.,” dated February 28, 2007.
b.
1. We adjusted the G&A expense ratios for Pakfood and its affiliates Asia Pacific (Thailand) Company Limited and Takzin Samut Company Limited to include a portion of the affiliate Okeanos Company Limited's administrative expenses.
2. We adjusted Pakfood's G&A expense ratio to: (1) Exclude the offset for the gain on the sale of marketable securities; and, (2) include the G&A expenses and cost of sales of an affiliated producer in the numerator and denominator. In addition, we excluded an offset to Pakfood's G&A expenses for rental income received from an affiliated producer.
3. Because Pakfood had net financial income, we did not include an amount for financial expense for COP. This is in accordance with the Department's practice of determining that, when a company earns enough financial income that it recovers all of its financial expense, that company did not have a resulting cost for financing during that period.
Our revisions to Pakfood's COP data are discussed in the Memorandum from Ernest Gziryan, Accountant, to Neal Halper, Director, Office of Accounting, entitled “Cost and Constructed Value Calculation Memorandum for the Preliminary Results—Pakfood Public Company Limited,” dated February 28, 2007.
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used COP exclusive of selling and packing expenses. The prices (inclusive of billing adjustments, where appropriate) were exclusive of any applicable movement charges, rebates, discounts, and direct and indirect selling expenses, and packing expenses, revised where appropriate, as discussed below under the “Price-to-Price Comparisons” section.
Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 percent of a respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the POR were at prices less than COP, we determined that such sales have been made in “substantial quantities.”
We found that, for certain specific products, more than 20 percent of Good Luck Product's and Pakfood's sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in
For those U.S. sales of subject merchandise for which there were no useable home market sales in the ordinary course of trade, we compared EPs to CV in accordance with section 773(a)(4) of the Act.
We based NV for Good Luck Product on delivered prices to unaffiliated customers in the home market or prices to affiliated customers in the home market that were determined to be at arm's length. We made adjustments, where appropriate, to the starting price for discounts and rebates. We made deductions, where appropriate, from the starting price for inland freight expenses and warehousing expenses, under section 773(a)(6)(B)(ii) of the Act.
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for imputed credit expenses and bank charges.
Regarding credit expenses, Good Luck Product reported that it had not received full payment for certain home market and U.S. sales. Consequently, for the unpaid portion of these sales, we used a payment date of February 28, 2007 (
We also made adjustments in accordance with 19 CFR 351.410(e) for indirect selling expenses incurred on comparison-market or U.S. sales where commissions were granted on sales in one market but not the other. Specifically, where commissions were granted in the U.S. market but not in the comparison market, we made a downward adjustment to NV for the lesser of: (1) The amount of commission paid in the U.S. market; or, (2) the amount of indirect selling expenses incurred in the comparison market. If commissions were granted in the comparison market but not in the U.S. market, we made an upward adjustment to NV following the same methodology.
Finally, we deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act.
We based NV for Pakfood on ex-factory or delivered prices to unaffiliated customers in the home market or prices to affiliated customers in the home market that were determined to be at arm's length. We made deductions, where appropriate, from the starting price for inland freight and warehousing expenses, under section 773(a)(6)(B)(ii) of the Act.
Regarding warehousing expenses, Pakfood reported that certain of these services were provided by an affiliated party. At verification, we tested the warehousing expenses charged by the affiliated party to determine whether the prices charged were at “arm's length.” Where we found that the prices were not at arm's length, we adjusted them to be equivalent to the market price. For further discussion, see the “Pakfood Verification Report.”
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for imputed credit expenses and bank charges. We also made adjustments in accordance with 19 CFR 351.410(e) for indirect selling expenses incurred on comparison-market or U.S. sales where commissions were granted on sales in one market but not the other. Specifically, where commissions were granted in the U.S. market but not in the comparison market, we made a downward adjustment to NV for the lesser of: (1) The amount of commission paid in the U.S. market; or, (2) the amount of indirect selling expenses incurred in the comparison market.
We also deducted home market packing costs and added U.S. packing costs, in accordance with section 773(a)(6)(A) and (B) of the Act.
Section 773(a)(4) of the Act provides that where NV cannot be based on comparison-market sales, NV may be based on CV. Accordingly, for those frozen warmwater shrimp products for Pakfood and Good Luck Product for which we could not determine the NV based on comparison-market sales, either because there were no useable sales of a comparable product or all sales of the comparable products failed the COP test, we based NV on CV. For Thai I-Mei, in accordance with section 773(a)(4) of the Act, we based NV on CV because there was no viable home or third country market.
Section 773(e) of the Act provides that CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for SG&A expenses, profit, and U.S. packing costs. For Good Luck Product and Pakfood, we calculated the cost of materials and fabrication based on the methodology described in the “Cost of Production Analysis” section, above, and we based SG&A and profit for each respondent on the actual amounts incurred and realized by it in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the home market, in accordance with section 773(e)(2)(A) of the Act. For comparisons to Good Luck Product's and Pakfood's EP, we made circumstances-of-sale adjustments by deducting direct selling expenses incurred on home market sales from, and adding U.S. direct selling expenses, to CV, in accordance with section 773(a)(8) of the Act and 19 CFR 351.410.
For Thai I-Mei, in accordance with section 773(e) of the Act, we calculated CV based on the sum of Thai I-Mei's cost of materials and fabrication for the foreign like product, plus amounts for SG&A, profit, and U.S. packing costs. The Department relied on COP data submitted by Thai I-Mei in its most recent supplemental section D questionnaire response for the COP calculation, except for the calculation of the company's G&A and financial expense ratios. For these ratios, we adjusted the reported data to include inventory changes in the denominator. Our revisions to Thai I-Mei's COP data are discussed in the Memorandum from Oh Ji Young, Accountant, to Neal Halper, Director, Office of Accounting, entitled, “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Results—Thai I-Mei Frozen Foods Co., Ltd.,” dated February 28, 2007.
Because Thai I-Mei does not have a viable comparison market, the Department cannot determine profit under section 773(e)(2)(A) of the Act, which requires sales by the respondent in question in the ordinary course of trade in a comparison market. Likewise, because Thai I-Mei does not have sales of any product in the same general category of products as the subject merchandise, we are unable to apply alternative (i) of section 773(e)(2)(B) of the Act. Therefore, we calculated Thai I-Mei's CV profit and selling expenses based on alternative (ii) of this section, in accordance with section 773(e)(2)(B)(ii) of the Act. As a result,
For comparisons to Thai I-Mei's CEP, we deducted from CV direct selling expenses incurred on Good Luck Product's and Pakfood's home market sales, in accordance with section 773(a)(7)(ii)(B) of the Act.
We made currency conversions into U.S. dollars in accordance with section 773A of the Act and 19 CFR 351.415 based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
We preliminarily determine that weighted-average dumping margins exist for the respondents for the period August 4, 2004, through January 31, 2006, as follows:
Review-Specific Average Rate Applicable to the Following Companies:
AFA Rate Applicable to the Following Companies:
The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Interested parties who wish to request a hearing or to participate if one is requested must submit a written request to the Assistant Secretary for Import Administration, Room B-099, within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and, (3) a list of issues to be discussed.
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP 15 days after the date of publication of the final results of this review.
For certain sales made by Pakfood and all of Thai I-Mei's sales, we note that these companies reported the entered value for the U.S. sales in question. We will calculate importer-specific
For all of Good Luck Product's and certain of Pakfood's sales, we note that these companies did not report the entered value for the U.S. sales in question. We will calculate importer-specific per-unit duty assessment rates by aggregating the total amount of antidumping duties calculated for the examined sales and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates are
For the responsive companies which were not selected for individual review, we will calculate an assessment rate based on the weighted-average of the cash deposit rates calculated for the companies selected for individual review excluding any which are
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent, and therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp from Brazil with respect to 11 companies.
We preliminarily determine that sales made by Aquatica and Compescal have been made below normal value (“NV”). In addition, we have preliminarily determined a weighted-average margin for those companies that were not selected for individual review but were responsive to the Department's requests for information based on the preliminary results for the respondents selected for individual review. For those companies which were not responsive to the Department's requests for information, we have preliminarily assigned to them a margin based on adverse facts available (“AFA”).
If the preliminary results are adopted in our final results of administrative review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on the preliminary results.
March 9, 2007.
Kate Johnson or Rebecca Trainor, AD/CVD Operations, Office 2, Import Administration-Room B099, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4929 or (202) 482-4007, respectively.
In February 2005, the Department published in the
On April 7, 2006, the Department published a notice of initiation of administrative review for 50 companies and requested that each provide data on the quantity and value of its exports of subject merchandise to the United States during the POR for mandatory respondent selection purposes. These companies are listed in the Department's notice of initiation.
During the period April 28 through June 19, 2006, we received responses to the Department's quantity and value questionnaire from 19 companies. We
Subsequently, the Department received withdrawal requests with respect to many of the companies. However, based upon our consideration of the responses to the quantity and value questionnaire and the resources available to the Department, we determined that it was not practicable to examine all exporters/producers of subject merchandise for which a review request remained. As a result, on July 11, 2006, we selected the two largest remaining producers/exporters by export volume of certain frozen warmwater shrimp from Brazil during the POR, Aquatica and Compescal, as the mandatory respondents in this review.
On July 20, 2006, we published a notice rescinding the administrative review with respect to 34 companies for which the requests for an administrative review were withdrawn in a timely manner, in accordance with 19 CFR 351.213(d)(1).
We received responses to section A of the questionnaire from Aquatica and Compescal on August 15, 2006.
On August 25, 2006, the Department postponed the preliminary results in this review until no later than February 28, 2007.
On August 31, 2006, the petitioner submitted comments regarding third country market selection with respect to Aquatica and the possible existence of a “particular market situation” with respect to Compescal.
We received responses to sections B and C of the questionnaire from Compescal and Aquatica on September 7 and 8, 2006, respectively.
We issued supplemental questionnaires to Aquatica and Compescal on September 28, 2006, and received responses on October 20, 2006.
On November 1, 2006, the petitioner submitted additional comments on the appropriate comparison markets to be used for Aquatica and Compescal.
On September 20, 2006, the petitioner requested that the Department initiate a sales-below-cost investigation of Aquatica. On November 6, 2006, we initiated this investigation.
Also on November 6, 2006, we determined that France constitutes the appropriate comparison market with respect to Aquatica.
On November 9, 2006, we found that a particular market situation does not exist which would render Compescal's home market inappropriate for purposes of determining NV in this review.
On November 17, 2006, the petitioner requested that the Department initiate a sales-below-cost investigation of Compescal. This investigation was initiated on November 28, 2006.
Aquatica and Compescal submitted responses to section D of the questionnaire on December 6 and 28, 2006, respectively. We issued a section D supplemental questionnaire to Aquatica on December 21, 2006, and to Compescal on January 10, 2007. On January 11 and 30, 2007, we received responses to these supplemental questionnaires from Aquatica and Compescal, respectively. We issued a second section D supplemental questionnaire to Aquatica on January 18, 2007, and received a response on February 1, 2007.
On January 23, 2007, we published a correction to the scope of the order in which we clarified that the scope does not cover warmwater shrimp in non-frozen form.
Verifications were conducted in January and February 2007. Sales verification reports were issued on February 23, 2007. Cost verification reports will be issued following the preliminary results.
The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off,
The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTSUS”), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which
Excluded from the scope are: 1) breaded shrimp and prawns (HTS subheading 1605.20.10.20); 2) shrimp and prawns generally classified in the
The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.
On July 20, 2006, we published a notice rescinding the administrative review with respect to 34 companies for which the petitioner and CIDA timely withdrew their requests for an administrative review, and because no other interested party requested a review for these companies, in accordance with 19 CFR 351.213(d)(1).
Artico was inadvertently omitted from the list of companies for which the administrative review was rescinded in July 2006. Artico has the same address as Ortico, which was included in our earlier rescission notice. Accordingly, we consider Artico and Ortico to be the same company.
In addition, as a result of additional research, we confirmed that Marine Maricultura do Nordeste SA, Marine Maricultura do Nordeste and Marine Maricultura Nordeste SA are, in fact, the same company, and that the correct company name is Marine Maricultura do Nordeste SA, which is no longer in business. We rescinded the administrative review with respect to Marine Maricultura do Nordeste in July 2006, as a result of the petitioner's timely withdrawal of the request for review of this company.
For these reasons, we are also preliminarily rescinding this review with respect to Artico, Marine Maricultura do Nordeste SA and Marine Maricultura Nordeste SA.
Aquatica has three affiliates involved in the production and sale of the subject merchandise, two of which exported shrimp to the United States during the POR. The third affiliate, Aquafeed, which produces feed for larva and shrimp and also sold some frozen shrimp produced by Aquatica to France during the POR, together with Aquatica, submitted a consolidated questionnaire response to the Department.
Section 776(a) of the Act provides that the Department will apply “facts otherwise available” if,
As discussed in the “Background” section, above, in April 2006, the Department requested that all companies subject to review respond to the Department's quantity and value questionnaire for purposes of mandatory respondent selection. The original deadline to file a response was April 28, 2006. Of the 11 companies subject to review,
According to section 776(b) of the Act, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available.
Section 776(b) of the Act provides that the Department may use as AFA, information derived from: 1) the petition; 2) the final determination in the investigation; 3) any previous review; or 4) any other information placed on the record. The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
In order to ensure that the margin is sufficiently adverse so as to induce cooperation, we have preliminarily assigned a rate of 349 percent, which is the highest rate alleged in the petition.
Information from prior segments of the proceeding constitutes secondary information and section 776(c) of the Act provides that the Department shall, to the extent practicable, corroborate that secondary information from independent sources reasonably at its disposal. The Department's regulations provide that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value.
To corroborate the petition margin, we compared it to the transaction-specific rates calculated for each respondent in this review. We find that it is reliable and relevant because the petition rate fell within the range of individual transaction margins calculated for the mandatory respondents.
Further, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department may disregard the margin and determine an appropriate margin.
Because we did not find evidence indicating that the selected margin is not appropriate and because this margin falls within the range of transaction-specific margins for the mandatory respondents, we have preliminarily determined that the 349 percent margin, as alleged in the petition, is appropriate as AFA. We are assigning this rate to SM Pescados Industria Comercio E Exportacao Ltda. and Valenca da Bahia Maricultura SA. For company-specific information used to corroborate this rate, see the Memorandum to the File from Kate Johnson and Rebecca Trainor, Senior International Trade Compliance Analysts, Office 2, AD/CVD Operations, entitled “Corroboration of Data Contained in the Petition for Assigning Facts Available Rates in the 2004-2006 Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from Brazil,” dated February 28, 2007.
To determine whether sales of certain frozen warmwater shrimp by Aquatica and Compescal to the United States were made at less than NV, we compared EP to the NV, as described in the “Export Price” and “Normal Value” sections of this notice.
Pursuant to section 777A(d)(2) of the Act, we compared the EPs of individual U.S. transactions to the weighted-average NV of the foreign like product where there were sales made in the ordinary course of trade, as discussed in the “Cost of Production Analysis” section below.
With respect to Compescal, we excluded certain home market sales from our analysis which we verified were either cancelled or outside the ordinary course of trade.
In accordance with section 771(16) of the Act, we considered all products produced by Aquatica and Compescal covered by the description in the “Scope of the Order” section, above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), we compared U.S. sales to sales made in the home market for Compescal and France for Aquatica within the contemporaneous window period, which extends from three months prior to the month of the U.S. sale until two months after the sale. Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by Aquatica and Compescal in the following order: cooked form, head status, count size, organic certification, shell status, vein status, tail status, other shrimp preparation, frozen form, flavoring, container weight, presentation, species, and preservative.
With respect to sales comparisons involving broken shrimp, we compared Compescal's sales of broken shrimp in the home market to its sales of comparable quality shrimp to the United States. As Aquatica did not make any sales of broken shrimp in its comparison market, we compared Aquatica's U.S. sales of broken shrimp to constructed value (“CV”).
For all U.S. sales made by Aquatica and Compescal, we used EP methodology, in accordance with section 772(a) of the Act, because the subject merchandise was sold directly to the first unaffiliated purchaser in the United States prior to importation and constructed export price (“CEP”) methodology was not otherwise warranted based on the facts of record.
We based EP on packed prices to the first unaffiliated purchaser in the United States. We made deductions from the starting price for foreign inland freight, insurance, foreign brokerage, port handling and warehousing expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act. Aquatica reported port handling expenses as direct selling expenses. We reclassified these expenses as movement expenses in accordance with our normal practice.
Based on our sales verification findings, we made revisions to the insurance expense reported for certain U.S. sales.
We based EP on packed prices to the first unaffiliated purchaser in the United States. We made deductions from the starting price for foreign inland freight, insurance, and port expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act.
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act.
Because Compescal's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales for the subject merchandise, we determined that its home market was viable. Therefore, we used home market sales as the basis for NV in accordance with section 773(a)(1)(B) of the Act.
Furthermore, we determined that Aquatica's aggregate volume of home market sales of the foreign like product was insufficient to permit a proper comparison with U.S. sales of the subject merchandise. Therefore, with respect to Aquatica, we used sales to France, Aquatica's largest third country market, as the basis for comparison-market sales in accordance with section 773(a)(1)(C) of the Act and 19 CFR 351.404.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (“LOT”) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (
In this administrative review, we obtained information from each respondent regarding the marketing stages involved in making the reported foreign market and U.S. sales, including a description of the selling activities performed by each respondent for each channel of distribution. Company-specific LOT findings are summarized below.
Aquatica reported that it made EP sales in the U.S. market through a single channel of distribution (
When NV is based on CV, as in this case, the NV LOT is that of the sales from which we derive SG&A expenses and profit. (
Compescal reported that it made EP sales in the U.S. market through a single channel of distribution (
With respect to the home market, Compescal made sales to final consumers (restaurants and individuals). Compescal stated that its home market sales were made through four channels of distribution: 1) ex-factory; 2) delivery to the Fortaleza business unit; 3) delivery to the Fortaleza business unit and then to the customer; and 4) delivery to the Fortaleza business unit and then to the airport. We examined the selling activities performed for these channels, and found that Compescal performed the following selling functions: packing, verbal guarantees, freight and delivery (excluding ex-factory sales), and invoicing. These selling activities can be generally grouped into three core selling function categories for analysis: 1) sales and marketing; 2) freight and delivery services; and, 3) warranty and technical support. Accordingly, based on the core selling functions, we find that Compescal performed sales and marketing and warranty and technical support for all home market sales, and freight and delivery services for certain home market sales. We do not find that the fact that freight and delivery services are not provided for one channel of distribution is sufficient to distinguish it as a separate LOT. Accordingly, we preliminarily determine that there is one LOT in the home market.
Finally, we compared the EP LOT to the home market LOT and found that the core selling functions performed for U.S. and home market customers are virtually identical. Therefore, we determined that sales to the U.S. and home markets during the POR were made at the same LOT, and as a result, no LOT adjustment was warranted.
Based on our analysis of the petitioner's allegations, we found that there were reasonable grounds to believe or suspect that Aquatica's and Compescal's sales of frozen warmwater shrimp in the third country and home market, respectively, were made at prices below their COP. Accordingly, pursuant to section 773(b) of the Act, we initiated sales-below-cost investigations to determine whether Aquatica's and Compescal's sales were made at prices below their respective COPs.
In accordance with section 773(b)(3) of the Act, we calculated the respondents' cost of production (“COP”) based on the sum of their costs of materials and conversion for the foreign like product, plus amounts for general and administrative (“G&A”) expenses and interest expenses.
The Department relied on the COP data submitted by each respondent in its most recent supplemental section D questionnaire response for the COP calculation, except for the following instances where the information was not appropriately quantified or valued:
1. We disallowed Aquatica's claimed adjustment to its reported costs for flood and virus losses because Aquatica did not provide sufficient evidence of flood losses and because we determined that the virus was not non-recurring, unforeseen or otherwise extraordinary.
2. We adjusted the cost of larva that was purchased from Aquatica's affiliate to reflect the market value of larva in accordance with section 773(f)(2) of the Act.
1. We disallowed Compescal's offset to the POR larva laboratory and farm costs for losses in productivity experienced as a result of a viral infection because we determined that the virus was not non-recurring, unforeseen, or otherwise extraordinary.
2. We revised the reported total fixed overhead costs to exclude only the 2004 and 2005 construction-in-progress costs that were actually incurred and capitalized during the POR.
3. We increased Compescal's cost of raw shrimp obtained from an affiliated supplier to reflect the market value of this input in accordance with section 773(f)(2) of the Act.
4. We revised Compescal's reported G&A expense rate calculation to include the “revaluation of depreciation expenses” that the company recorded as an administrative expense in their records. In addition, we adjusted the cost of goods sold denominator of the calculation to reflect the same basis as the total cost of manufacturing to which the rate is applied.
5. We adjusted the cost of goods sold denominator of the financial expense rate calculation to reflect the same basis as the total cost of manufacturing to which the rate is applied.
On a product-specific basis, we compared the adjusted weighted-average COP to the home market or third country sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used COP exclusive of selling and packing expenses. The prices were inclusive of interest revenue and exclusive of any applicable movement charges, discounts, and direct and indirect selling expenses and packing expenses, revised where appropriate. With respect to Aquatica, we reclassified certain expenses (
In determining whether to disregard home market or third country sales made at prices below the COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act: 1) whether, within an extended period of time, such sales were made in substantial quantities; and 2) whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. Where less than 20 percent of the respondent's home market or third country sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard the below-cost sales because: 1) they were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act, and 2) based on our comparison of prices to the weighted-average COPs for the POR, they were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
We found that, for certain specific products, more than 20 percent of Compescal's home market sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
We found that, for all products, Aquatica's third country sales were at prices less than the COP, and in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded all third country sales and used CV as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
With respect to Compescal, for those U.S. sales of subject merchandise for which there were no useable home market sales in the ordinary course of trade, we compared EPs to the CV in accordance with section 773(a)(4) of the Act.
We based NV for Compescal on delivered, FOB port, FOB airport, or ex-factory prices to unaffiliated customers in the home market. We made adjustments, where appropriate, to the starting price for interest revenue. We made deductions, where appropriate, from the starting price for foreign inland freight and warehousing expenses, under section 773(a)(6)(B)(ii) of the Act. We recalculated foreign inland freight and warehousing expenses for all comparison market sales consistent with verification findings.
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstance-of-sale (“COS”) for imputed credit expenses, courier fees and documentation fees. We recalculated courier fees for all U.S. sales based on verification findings. We recalculated home market credit expenses using a publicly available average Brazilian short-term lending rate relevant to the POR, in accordance with the Import Administration Policy Bulletin No. 98.2 (February 23, 1998), because Compescal had no home market borrowings during the POR.
We also deducted home market packing costs and added U.S. packing costs, in accordance with section 773(a)(6)(A) and (B) of the Act.
Section 773(a)(4) of the Act provides that where NV cannot be based on comparison-market sales, NV may be based on CV. Accordingly, for those frozen warmwater shrimp products for which we could not determine the NV based on comparison-market sales, either because there were no useable sales of a comparable product or all sales of the comparable products failed the COP test, we based NV on the CV.
Section 773(e) of the Act provides that the CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for SG&A expenses, profit, and U.S. packing costs. For each respondent, we calculated the cost of materials and fabrication, G&A, and interest based on the methodology described in the “Cost of Production Analysis” section, above.
For Aquatica, because all of its comparison-market sales failed the COP test and, therefore, were outside the ordinary course of trade, we cannot determine selling expenses or profit under section 773(e)(2)(A) of the Act, which requires sales by the respondent in question in the ordinary course of trade in a comparison market. Likewise, because Aquatica did not have sales of any product in the same general category of products as the subject merchandise, we are unable to apply alternative (i) of section 773(e)(2)(B) of the Act. Further, we cannot calculate profit based on alternative (ii) of this section without violating our responsibility to protect respondent's administrative protective order (APO) information because Compescal is the only other respondent with viable home market sales (19 CFR 351.405(b) requires that a profit ratio under this alternative be based solely on home market sales). If we were to use Compescal's profit ratio exclusively under this alternative, Aquatica would be able to determine Compsecal's proprietary profit rate. Therefore, we based Aquatica's CV profit and selling expenses on the third alternative, any other reasonable method, in accordance with section 773(e)(2)(B)(iii) of the Act. As a reasonable method, we calculated Aquatica's CV profit and selling expenses based on the weighted-average selling expense and profit rates derived from the comparison-market data of the respondents in the previous segment of this proceeding.
For Compescal, we based SG&A and profit on the actual amounts incurred and realized by Compescal in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the comparison market, in accordance with section 773(e)(2)(A) of the Act.
We made adjustments to CV for each respondent for differences in COS in accordance with section 773(a)(8) of the Act and 19 CFR 351.410. For comparisons to EP for Compescal, we made COS adjustments by deducting direct selling expenses incurred on home market sales from, and adding U.S. direct selling expenses to, CV. For comparisons to EP for Aquatica, we made COS adjustments by deducting direct selling expenses derived based on the methodology discussed above, and adding U.S. direct selling expenses to, CV.
We made currency conversions into U.S. dollars in accordance with section 773A of the Act and 19 CFR 351.415 based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
We preliminarily determine that weighted-average dumping margins exist for the respondents for the period August 4, 2004, through January 31, 2006, as follows:
The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Interested parties who wish to request a hearing or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, Room B-099, within 30 days of the date of publication of this notice. Requests should contain: 1) the party's name, address and telephone number; 2) the number of participants; and 3) a list of issues to be discussed.
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP 15 days after the date of publication of the final results of this review.
For Aquatica and Compescal, because they did not report the entered value of their U.S. sales, we will calculate importer-specific per-unit duty assessment rates by aggregating the total amount of antidumping duties calculated for the examined sales and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates are
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: 1) the cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent, and therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the
This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting an administrative review and a new shipper review of the antidumping duty order on certain frozen warmwater shrimp from the Socialist Republic of Vietnam (“Vietnam”), both covering the period of review (“POR”) of July 16, 2004, through January 1, 2006. As discussed below, we preliminarily determine that certain respondents in these reviews (covering one new shipper review and sixteen companies subject to the administrative review)
Nicole Bankhead (respondent Grobest), and Matthew Renkey (respondent Fish One), AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-9068 and (202) 482-2312, respectively.
On February 1, 2005, the Department published in the
On February 28, 2006, we received requests to conduct administrative reviews of 83 companies from the Petitioner
On July 27, 2006, in accordance with section 351.213(d)(1) of the Department's regulations, we rescinded the administrative review with respect to sixty-eight companies.
On August 21, 2006, the Department extended the preliminary results for the instant reviews until February 28, 2007.
On January 23, 2007, we published a correction to the scope of the order in which we clarified that the scope does not cover warmwater shrimp in non-frozen form.
The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the
The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.
On April 3, 2006, the Department sent letters to the Vietnam Association of Seafood Exporters and Producers (“VASEP”) and the Ministry of Fisheries in Vietnam requesting assistance with distributing the Department's questionnaire. On April 25, 2006, the Department sent a letter to all interested parties clarifying an aspect of the separate rates application. Between April 27 and May 19, 2006, the Department received Quantity and Value questionnaire (“Q&V”) responses and separate rate certifications from COFIDEC, Seaprodex Hanoi, CATACO, FAQUIMEX, HAVICO, Kim Anh, Fish One, Phuong Nam Co., Ltd. and subsidiary Western Seafood Processing and Exporting Factory, Fimex, Grobest, CAM RANH, Bac Lieu, Thuan Phuoc Seafoods and Trading Corporation, Ngoc Sinh, STAPIMEX, UTXI, Amanda, Minh Phu, Nha Trang Fisco, Viet Foods, VIMEXCO, Seaprimexco, Kisimex, Cafatex, Seaprodex Minh Hai, CP Vietnam, Incomfish, Minh Hai Jostco, Phu Cuong, Camimex, Cuu Long Sea Pro, Nha Trang Seafoods, Seaprodex Danang, and CADOVIMEX.
On May 22, 2006, the Department resent its Q&V questionnaire and separate rate application via e-mail and overnight express delivery to all companies that did not respond to the Department's original Q&V questionnaire and separate rate application.
Between June 2 and July 11, 2006, the Petitioner withdrew its request for antidumping administrative reviews for certain companies and certain companies also withdrew their requests for an administrative review.
On June 16, 2006, the Department issued its respondent selection memorandum stating that we selected Amanda, Fimex, and Phuong Nam as the three mandatory respondents since they were the three largest exporters, by volume, of the remaining companies.
The following sixteen companies remain in the administrative review: Aquatic Products Trading Company, Bac Lieu Fisheries, Camranh Seafoods, Seaprodex Hanoi, Incomfish, Kisimex, Nha Trang Company Limited, Nhatrang Fisco, Nha Trang Fisheries Co. Ltd., Seaprodex, Sea Products Imports & Exports, Song Huong ASC Import-Export Company Ltd., Song Huong ASC Joint Stock Company, Vietnam Fish One, Viet Nhan Company, and V N Seafoods.
On March 20, 2006, the Department issued Grobest the non-market economy questionnaire. On July 12, 2006, the Department issued its non-market economy questionnaire to the three new mandatory respondents Fish One, Seaprodex Hanoi, and Kisimex.
Grobest responded to the Department's non-market economy questionnaire and subsequent supplemental questionnaires between April 2006 and November 2006. Fish One responded to the Department's non-market economy questionnaire and subsequent supplemental questionnaires between August 2006 and November 2006. Between August and November 2006, the Petitioner submitted comments regarding Fish One's questionnaire responses.
On June 20, 2006, the Department sent interested parties a letter requesting comments on surrogate country and information pertaining to valuing factors of production. Grobest, Fish One, and the Petitioner submitted surrogate country comments and surrogate value data between November 16, 2006, and February 12, 2007.
Section 776(a)(2) of the Tariff Act of 1930, as amended (“the Act”), provides that, if an interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested subject to sections 782(c)(1) and (e) of the Act; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.
Section 782(c)(1) of the Act provides that if an interested party “promptly after receiving a request from {the Department}for information, notifies {the Department} that such party is unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative form in which such party is able to submit the information,” the Department may modify the requirements to avoid imposing an unreasonable burden on that party.
Section 782(d) of the Act provides that, if the Department determines that a response to a request for information does not comply with the request, the Department will inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person the opportunity to remedy or explain the deficiency. If that person submits further information that continues to be unsatisfactory, or this information is not submitted within the applicable time limits, the Department may, subject to section 782(e), disregard all or part of the original and subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not decline to consider information deemed “deficient” under section 782(d) if: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.
Furthermore, section 776(b) of the Act states that if the Department “finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority or the Commission, the administering authority or the Commission * * *, in reaching the applicable determination under this title, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.”
For these preliminary results, in accordance with sections 776(a)(2)(A) of the Act, we have determined that the use of facts available is appropriate for Fish One's unreported consumption of salt2
Fish One did not report salt2 or marinade consumption in its three
Section 776(b) of the Act states that if the Department “finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority or the Commission, the administering authority or the Commission * * *, in reaching the applicable determination under this title, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.”
In this instance, Fish One failed to act to the best of its ability to comply with the Department's repeated requests for information regarding all of its FOP used during the POR,
As mentioned in the “General Background” section above, based on withdrawals and subsequent rescissions, the administrative review covers sixteen companies. Of those sixteen companies, only one mandatory respondent (Fish One) and four separate rate companies (Bac Lieu Fisheries, Camranh Seafoods, Incomfish, and Nhatrang Fisco) chose to participate. The remaining eleven companies did not provide responses to the Department's requests for information. On July 12, 2006, the Department issued the non-market economy questionnaire to mandatory respondents, Kisimex and Seaprodex Hanoi. Neither respondent provided a response to Section A of the Department's antidumping questionnaire by the deadline of August 2, 2006. The Department sent letters to both companies on August 4, 2006, stating that the final opportunity to submit a response to the Department's questionnaire would be August 11, 2006, but neither company responded. Additionally, the nine remaining companies
As AFA, we are applying the highest rate from any segment of this proceeding which in this case is the rate assigned to the Vietnam-wide entity in the LTFV investigation. Section 776(c) of the Act requires that the Department corroborate, to the extent practicable, secondary information used as facts available. Secondary information is defined as “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
The SAA further provides that the term “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value.
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in
As this rate is both reliable and relevant, we determine that it has probative value, and is thus in accordance with section 776(c)'s requirement that secondary information be corroborated to the extent practicable (
Pursuant to 19 CFR 351.307(b)(iv), we conducted verifications of the sales and factors of production (“FOP”) for Grobest
Consistent with the Department's practice, we investigated the
In every case conducted by the Department involving Vietnam, Vietnam has been treated as a non-market economy (“NME”) country. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority.
A designation as an NME remains in effect until it is revoked by the Department.
The Department considers the following
In the LTFV investigation for this case, the Department granted separate rates to Fish One, the only mandatory respondent in the instant review, and to the four participating separate rate respondents, Nha Trang Fisco, Bac Lieu Fisheries, Cam Ranh Seafoods, and Incomfish.
In this review, only Fish One, Grobest, and the four participating separate rate companies submitted complete responses to the separate rates section of the Department's NME questionnaire. The evidence submitted by these companies includes government laws and regulations on corporate ownership, business licenses, and narrative information regarding the companies' operations and selection of management. The evidence provided by these companies supports a finding of a
The absence of
In their questionnaire responses, Fish One and the separate rate companies submitted evidence indicating an absence of
Based on timely requests from individual exporters and petitioners, the Department originally initiated this review with respect to 84 companies. During the course of the review, numerous requests for review were withdrawn; however, the Department employed a limited examination methodology, as it did not have the resources to examine all companies for which a review request was made. As stated previously, the Department selected three exporters, Fish One, Seaprodex Hanoi, and Kisimex as mandatory respondents in this review. Four additional companies (Nha Trang Fisco, Bac Lieu Fisheries, Cam Ranh Seafoods and Incomfish) submitted timely information as requested by the Department and remain subject to review as cooperative separate rate respondents.
Fish One participated fully in this review and is receiving a preliminary antidumping duty rate of zero. As noted above, however, the remaining two mandatory respondents, Seaprodex Hanoi and Kisimex, did not respond to our questionnaires. As a result, these two entities are not entitled to a separate rate in this review and thus are considered to be part of the Vietnam-wide entity. As part of the Vietnam-wide entity, these two companies are receiving a preliminary antidumping duty rate of 25.76 percent.
The Department must also assign a rate to the remaining four cooperative separate rate respondents not selected for individual examination. We note that the statute and the Department's regulations do not directly address the establishment of a rate to be applied to individual companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777(A)(c)(2) of the Act. The Department's practice in this regard, in cases involving limited selection based on exporters accounting for the largest volumes of trade, has been to weight-average the rates for the selected companies excluding zero and
While the statute does not specifically address this particular set of circumstances, section 735(c)(5)(B) of the Act does specify the methodology to be followed when a similar fact pattern arises in the context of the all-others rate established in an investigation. While not entirely analogous to the determination of a rate to be applied to responsive separate rate respondents in the context of a NME review, we find it to be instructive in these circumstances.
Section 735(c)(5)(B) of the Act states that in situations where the estimated weighted-average dumping margins established for all exporters and producers individually investigated are zero or
The Statement of Administrative Action (“SAA”) states that in using any reasonable method to calculate the all-others rate, “the expected method in
In this case, because of the nature of the shrimp industry, the Department preliminarily concludes that it cannot accurately determine a margin based on information provided by the separate rate entities, furthermore, we preliminarily find that we cannot employ such alternative methods as weight-averaging AFA,
The Department has preliminarily determined to apply the margin calculated for cooperative separate rate respondents in the immediately preceding segment of this proceeding,
When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's factors of production (“FOPs”), valued in a surrogate market economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the factors of production, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market economy countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise. The sources of the surrogate factor values are discussed under the “Normal Value” section below and in
As discussed in the “Separate Rates” section, the Department considers Vietnam to be an NME country. The Department has treated Vietnam as an NME country in all previous antidumping proceedings. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. None of the parties to this proceeding contested such treatment. Accordingly, we treated Vietnam as an NME country for purposes of this review and calculated NV, pursuant to section 773(c) of the Act, by valuing the FOPs in a surrogate country.
The Department determined that Bangladesh, Pakistan, India, Sri Lanka, and Indonesia are countries comparable to Vietnam in terms of economic development.
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results in an antidumping administrative review and a new shipper review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results.
In accordance with section 772(a) of the Act, we calculated the export price (“EP”) for sales to the United States for Fish One because the first sale to an unaffiliated party was made before the date of importation and the use of constructed EP (“CEP”) was not otherwise warranted. We calculated EP based on the price to unaffiliated purchasers in the United States. In accordance with section 772(c) of the Act, as appropriate, we deducted from the starting price to unaffiliated purchasers foreign inland freight and brokerage and handling. Each of these services was either provided by an NME vendor or paid for using an NME currency. Thus, we based the deduction of these movement charges on surrogate values. Additionally, for international freight provided by a market economy provider and paid in U.S. dollars, we
For Grobest, we based U.S. price on CEP in accordance with section 772(b) of the Act, because sales were made on behalf of the Vietnam-based company by its U.S. affiliate to unaffiliated purchasers. For Grobest's sales, we based CEP on prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign movement expenses, international movement expenses, U.S. movement expenses, and appropriate selling adjustments, in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States. We deducted, where appropriate, commissions, inventory carrying costs, credit expenses, and indirect selling expenses. Where foreign movement expenses, international movement expenses, or U.S. movement expenses were provided by Vietnam service providers or paid for in Vietnamese Dong, we valued these services using surrogate values (see “Factors of Production” section below for further discussion). For those expenses that were provided by a market-economy provider and paid for in market-economy currency, we used the reported expense. Due to the proprietary nature of certain adjustments to U.S. price, for a detailed description of all adjustments made to U.S. price for Grobest,
Section 773(c)(1)(B) of the Act provides that the Department shall determine the NV using a factors-of-production methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on the FOP because the presence of government controls on various aspects of non-market economies renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
In accordance with section 773(c) of the Act, we calculated NV based on factors of production reported by respondents for the POR, except as noted above. To calculate NV, we multiplied the reported per-unit factor-consumption rates by publicly available Bangladeshi surrogate values. In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to Bangladeshi import surrogate values a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory of production or the distance from the nearest seaport to the factory of production where appropriate. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in
With regard to surrogate values and the market-economy input values, we have disregarded prices that we have reason to believe or suspect may be subsidized. We have reason to believe or suspect that prices of inputs from Indonesia, South Korea, Thailand, and India may have been subsidized. We have found in other proceedings that these countries maintain broadly available, non-industry-specific export subsidies and, therefore, it is reasonable to infer that all exports to all markets from these countries may be subsidized.
Therefore, based on the information currently available, we have not used prices from these countries either in calculating the Bangladeshi import-based surrogate values or in calculating market-economy input values. In instances where a market-economy input was obtained solely from suppliers located in these countries, we used Bangladeshi import-based surrogate values to value the input. Except as discussed below, the Department used United Nations ComTrade Statistics (“UN ComTrade”), provided by the United Nations Department of Economic and Social Affairs' Statistics Division, as its primary source of Bangladeshi surrogate value data.
It is the Department's practice to calculate price index adjustors to inflate or deflate, as appropriate, surrogate values that are not contemporaneous with the POR using the wholesale price index for the subject country.
Certain surrogate values were calculated using data from the
Bangladeshi and other surrogate values denominated in foreign currencies were converted to USD using the applicable average exchange rate based on exchange rate data from the Department's Web site.
The value of the main input, head-on, shell-on (“HOSO”) shrimp, is an important factor of production in our dumping calculation as it accounts for a significant percentage of normal value. As a general matter, the Department prefers to use publicly available data to value surrogate values from the surrogate country to determine factor prices that, among other things represent a broad market average and are contemporaneous with the POR. The Respondents and the Petitioner have placed numerous Bangladeshi shrimp values on the record. In this case, the Department has determined that data contained in a study of the Bangladeshi shrimp industry published by the Network of Aquaculture Centres in Asia-Pacific (“NACA”), an intergovernmental organization affiliated with the UN's Food and Agriculture Organization, is a suitable surrogate value for shrimp from the surrogate country, namely, Bangladesh.
The Department's practice when selecting the “best available information” for valuing FOPs, in accordance with section 773(c)(1) of the Act, is to select, to the extent practicable, surrogate values which are: publicly available, product-specific, representative of a broad market average, tax-exclusive and contemporaneous with the POR.
To value the by-products, the Department used a surrogate value for shrimp by-products based on a purchase price quote for wet shrimp shells from an Indonesian buyer of crustacean shells. Although we recognize this surrogate value is not from Bangladesh, the primary surrogate, this information represents the best information on the record and is being used for these preliminary results. This information is specific to the by-product in question, shrimp shells, whereas the Bangladeshi data on the record represent a basket category.
To value packing materials, we used UN ComTrade data as the primary source of Bangladeshi surrogate value data.
To value factory overhead (“FOH”), Selling, General & Administrative (“SG&A”) expenses, and profit, we used the simple average of the 2004-2005 and 2005-2006 financial statement of Apex Foods Limited (“Apex”), the 2005 financial statement of Bionic Seafood Exports Limited, and the 2004-2005 financial statement of Gemini Seafood Limited, all of which are Bangladeshi shrimp processors.
The Department has determined that the following preliminary dumping margins exist for the period July 16, 2004, through January 31, 2006:
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of these preliminary results.
The Department will issue the final results of this administrative review and new shipper reviews, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. If these preliminary results are adopted in our final results of review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific (or customer)
The following cash deposit requirements will be effective upon publication of the final results of these new shipper reviews for all shipments of subject merchandise from Grobest entered, or withdrawn from warehouse, for consumption on or after the
Further, the following cash deposit requirements will be effective upon publication of the final results of the administrative review for shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided by section 751(a)(2)(C) of the Act: (1) For subject merchandise exported by Fish One, the cash-deposit rate will be that established in these final results of review; (2) for previously reviewed or investigated companies not listed above that have separate rates, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (3) for all other Vietnam exporters of subject merchandise, which have not been found to be entitled to a separate rate, the cash-deposit rate will be Vietnam-wide rate of 25.76 percent; (4) for all non-Vietnam exporters of subject merchandise, the cash-deposit rate will be the rate applicable to the Vietnam exporter that supplied that exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review, the new shipper reviews and this notice are in accordance with sections 751(a)(1), 751(a)(2)(B), and 777(i) of the Act, and 19 CFR 351.213(g), 351.214(h) and 352.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp from Ecuador with respect to 23 companies.
We preliminarily determine that sales made by OceanInvest and Promarisco have been made below normal value (NV). In addition, based on the preliminary results for the respondents selected for individual review, we have preliminarily determined a weighted-average margin for those companies that were not selected for individual review but were responsive to the Department's requests for information. For those companies which were not responsive to the Department's requests for information, we have preliminarily assigned to them a margin based on adverse facts available (AFA).
If the preliminary results are adopted in our final results of administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on the preliminary results.
March 9, 2007.
David Goldberger or Gemal Brangman, AD/CVD Operations, Office 2, Import Administration-Room B099, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-3773, respectively.
In February 2005, the Department published in the
On April 7, 2006, the Department published a notice of initiation of administrative review for 71 companies and requested that each provide data on the quantity and value of its exports of subject merchandise to the United States during the POR for mandatory respondent selection purposes. These companies are listed in the Department's notice of initiation.
During the period April 27, 2006, through June 13, 2006, we received responses to the Department's quantity and value questionnaire from 59 companies. A number of these companies reported that their names
Subsequently, the Department received withdrawal requests with respect to many of the companies. However, based upon our consideration of the responses to the quantity and value questionnaire and the resources available to the Department, we determined that it was not practicable to examine all exporters/producers of subject merchandise for which a review request remained. As a result, on July 11, 2006, we selected the two largest remaining producers/exporters by export volume of certain frozen warmwater shrimp from Ecuador during the POR, OceanInvest and Promarisco, as the mandatory respondents in this review.
On July 20, 2006, we published a notice rescinding the administrative review with respect to 47 companies for which the requests for an administrative review were withdrawn in a timely manner,
We received responses to section A of the questionnaire from Promarisco and OceanInvest on August 8 and August 15, 2006, respectively.
On August 11, 2006, the petitioner submitted comments regarding third country market selection with respect to Promarisco.
On August 25, 2006, the Department postponed the preliminary results in this review until no later than February 28, 2007.
We received responses to sections B and C of the questionnaire from OceanInvest and Promarisco on September 6, 2006. In addition, on this date Promarisco submitted a response to section D of the questionnaire.
On September 19, 2006, we published a notice amending the initiation and partial rescission of the administrative review to include an additional company which was inadvertently omitted.
On September 20, 2006, the petitioner requested that the Department initiate a sales-below-cost investigation of OceanInvest. On October 20, 2006, we initiated this investigation. See Memorandum to James Maeder, Director, Office 2, AD/CVD Operations, from The Team entitled “Petitioner's Allegation of Sales Below the Cost of Production for OceanInvest S.A.,” dated October 20, 2006 (OceanInvest COP Initiation Memo). On that date, we instructed OceanInvest to respond to the Department's section D questionnaire.
We issued a supplemental section A, B, and C questionnaire to OceanInvest on September 21, 2006, and received responses on October 13 and 17, 2006. We issued a supplemental section A, B, and C questionnaire to Promarisco on October 3, 2006, along with an additional information request on October 16, 2006, and received responses on October 11, 23, and 27, 2006.
On October 17, 2006, the petitioner submitted additional comments on the appropriate comparison market to be used for Promarisco. Promarisco responded to these comments in its October 23, 2006, submission.
On November 6, 2006, we determined that Spain constitutes the appropriate comparison market with respect to Promarisco. See Memorandum to James Maeder, Director Office 2, AD/CVD Operations, from The Team entitled “Selection of the Appropriate Third Country Market for Promarisco,” dated November 6, 2006.
OceanInvest submitted its response to section D of the questionnaire on November 16, 2006. In response to Department requests, OceanInvest also submitted additional information concerning its section B and C questionnaire responses on November 9, 20, and 28, 2006.
We issued a section D supplemental questionnaire to Promarisco on November 21, 2006, and to OceanInvest on December 19, 2006. On December 22, 2006, and January 18, 2007, respectively, we received responses to these supplemental questionnaires. We issued additional supplemental section D questionnaires to OceanInvest on January 24 and February 5, 2007, and to Promarisco on February 9, 2007. OceanInvest submitted its responses on February 2 and 12, 2007, and Promarisco submitted its response on February 21, 2007.
We conducted a verification of OceanInvest's reported sales data in December 2007, and issued our verification report on January 18, 2007. In response to our January 22, 2007, request, OceanInvest submitted revised third-country and U.S. sales data bases reflecting certain verification findings on January 30, 2007.
On January 23, 2007, we published a correction to the scope of the order in which we clarified that the scope does not cover warmwater shrimp in non-frozen form.
We conducted a verification of OceanInvest's reported cost data in February 2007. Our cost verification report will be issued following the preliminary results.
The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order.
Excluded from the scope are: 1) breaded shrimp and prawns (HTS subheading 1605.20.10.20); 2) shrimp and prawns generally classified in the
The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.
In response to our quantity and value data solicitation, Studmark, S.A. claimed that the only shipment of subject merchandise it made during the POR was being reviewed in the context of a new shipper review that was initiated prior to the initiation of this administrative review.
Section 776(a) of the Act provides that the Department will apply “facts otherwise available” if,
Doblertel, S.A., Pacfish, S.A. (
According to section 776(b) of the Act, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available.
Section 776(b) of the Act provides that the Department may use as AFA, information derived from: 1) the petition; 2) the final determination in the investigation; 3) any previous review; or 4) any other information placed on the record. The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
In selecting an appropriate AFA rate, the Department considered: 1) the rates alleged in the petition (
Section 776(c) of the Act provides that the Department shall, to the extent practicable, corroborate that secondary information from independent sources reasonably at its disposal. The Department's regulations provide that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value.
Because the companies did not submit information to the Department or participate in a previous segment of this proceeding, we do not have such information to consider in determining whether the petition rate is relevant to each of them. To determine whether the margin is reliable and relevant in this administrative review, we examined the transaction-specific rates of the respondents in this administrative review compared to the petition rates and found that they were not relevant for use in this administrative review. The highest transaction-specific rate calculated for a respondent in this review was 48.61 percent, which is substantially lower than the lowest margin alleged in the petition. We then examined the elements of the export price (EP) and NV calculations on which the margins in the petition were based. The petitioner based EP on the average unit values (AUVs) for Ecuadorian shrimp of various count sizes as calculated from CBP data and reported on a headless, shell-on (HLSO) basis. The petitioner based NV on an Italian price list for head-on, shell-on (HOSO) shrimp of various count sizes and made several adjustments to those prices, including conversion from an HOSO to an HLSO basis. We compared the EPs and NVs in the petition to entered values in the U.S. sales listings for both respondents, and gross unit prices for HLSO shrimp in the Italian market from OceanInvest's sales listing, respectively. Although we found the U.S. entered values reported in this review to be comparable to the AUVs in the petition, OceanInvest's POR sales prices in the Italian market were substantially different from the NVs in the petition.
As noted above, we do not find the weighted-average rates calculated for respondents in this and previous segments of this proceeding to be sufficiently adverse. Therefore, we are applying the highest transaction-specific rate calculated for the mandatory respondents in this review. With respect to corroboration of a rate calculated in a segment of a proceeding, we note that, unlike other types of information, such as input costs or selling expenses, there are no independent sources from which the Department can derive dumping margins. The only source for calculated dumping margins is administrative determinations. Thus, in an administrative review, if the Department chooses as total AFA a calculated dumping margin from the current or a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period.
The Department will, however, consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department may disregard the margin and determine an appropriate margin.
To determine whether sales of certain frozen warmwater shrimp by OceanInvest and Promarisco to the United States were made at less than
Pursuant to section 777A(d)(2) of the Act, we compared the EPs of individual U.S. transactions to the weighted-average NV of the foreign like product where there were sales made in the ordinary course of trade, as discussed in the “Cost of Production Analysis” section below.
In accordance with section 771(16) of the Act, we considered all products produced by OceanInvest and Promarisco covered by the description in the “Scope of the Order” section, above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), we compared U.S. sales to sales made in Italy for OceanInvest and Spain for Promarisco within the contemporaneous window period, which extends from three months prior to the month of the U.S. sale until two months after the sale. Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by OceanInvest and Promarisco in the following order: cooked form, head status, count size, organic certification, shell status, vein status, tail status, other shrimp preparation, frozen form, flavoring, container weight, presentation, species, and preservative.
With respect to Promarisco's U.S. sales of broken shrimp, we compared them to constructed value (CV), as Promarisco did not make any sales of broken shrimp in its comparison market.
For all U.S. sales made by OceanInvest and Promarisco, we applied the EP methodology, in accordance with section 772(a) of the Act, because the subject merchandise was sold directly to the first unaffiliated purchaser in the United States prior to importation and constructed export price (
We based EP on FOB or delivered, duty-paid (DDP) prices to the first unaffiliated purchaser in the United States. Where appropriate, we made adjustments to the starting price for billing adjustments. We also made deductions to the starting price for demurrage expenses, foreign inland freight expenses, Ecuadorian brokerage and handling expenses, ocean freight expenses, U.S. customs duties (
OceanInvest reported certain price adjustments and demurrage expenses as direct selling expenses. We reclassified these items as billing adjustments and movement expenses, respectively.
As noted in the sales verification report (
Based on our sales verification findings, we made minor revisions to the movement expenses reported for a small number of U.S. sales.
We based EP on CIF or DDP prices to the first unaffiliated purchaser in the United States. We made deductions to the starting price for foreign inland freight expenses, ocean freight expenses, marine insurance expenses, U.S. customs duties (including merchandise processing and harbor maintenance fees), U.S. brokerage and handling expenses, and U.S. warehousing expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act.
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act.
In the less-than-fair-value (LTFV) investigation segment of this proceeding, the Department determined that a particular market situation existed which rendered the Ecuadorian market inappropriate for purposes of determining NV for the three respondents in the LTFV investigation, including Promarisco.
Furthermore, based on our analysis of OceanInvest's questionnaire responses, we determined that OceanInvest's aggregate volume of home market sales of the foreign like product was insufficient to permit a proper comparison with U.S. sales of the subject merchandise.
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent). See 19 CFR 351.412(c)(2). Substantial differences in selling
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (i.e., no LOT adjustment was practicable), the Department shall grant a CEP offset, as provided in section 773(a)(7)(B) of the Act.
In this administrative review, we obtained information from each respondent regarding the marketing stages involved in making the reported foreign market and U.S. sales, including a description of the selling activities performed by each respondent for each channel of distribution. Company-specific LOT findings are summarized below.
OceanInvest sold frozen warmwater shrimp to distributors and traders in the U.S. market, and distributors in the Italian market. OceanInvest reported that it made EP sales in the U.S. market through two channels of distribution: FOB sales, and DDP. We examined the selling activities performed for these channels, and found that OceanInvest performed the following selling functions for both channels: packing, order input/processing, direct sales personnel services, and claim services (
With respect to the Italian market, OceanInvest reported one channel of distribution, FOB sales. We examined the selling activities performed for this channel, and found that OceanInvest performed the following selling functions: packing, order input/processing, direct sales personnel services, payment of commissions, and claim services (
Finally, we compared the EP LOT to the comparison market LOT and found that, with the exception of freight and delivery services performed on some U.S. sales, and the payment of commissions on Italian sales, the core selling functions performed for U.S. and Italian market customers are virtually identical. Therefore, we determined that sales to the U.S. and Italian markets during the POR were made at the same LOT, and as a result, no LOT adjustment was warranted.
Promarisco made direct sales of frozen warmwater shrimp to retailers, food processors, restaurant chains, and distributors in the U.S. market, and food processors and distributors in the Spanish market. Promarisco reported that it made EP sales in the U.S. market on a CIF or DDP basis through one channel of distribution. We examined the selling activities performed for this channel, and found that Promarisco performed the following selling functions: sales forecasting, sales promotion, order input/processing, technical assistance, pay commissions, freight and delivery, and claim services. These selling activities can be generally grouped into two core selling function categories for analysis: 1) sales and marketing (
With respect to the Spanish market, Promarisco reported that it made sales on an FOB, C&F, or CIF basis through one channel of distribution. We examined the selling activities performed for this channel, and found that Promarisco performed the following selling functions: sales forecasting, sales promotion, order input/processing, technical assistance, pay commissions, freight and delivery, and claim services. These selling activities can be generally grouped into two core selling function categories for analysis: 1) sales and marketing (
Finally, we compared the EP LOT to the comparison-market LOT and found that the core selling functions performed for U.S. and Spanish market customers are virtually identical. Therefore, we determined that sales to the U.S. and Spanish markets during the
Based on our analysis of the petitioner's allegations, we found that there were reasonable grounds to believe or suspect that OceanInvest's sales of frozen warmwater shrimp in the third-country market were made at prices below their cost of production (COP). Accordingly, pursuant to section 773(b) of the Act, we initiated a sales-below-cost investigation to determine whether OceanInvest's sales were made at prices below their respective COPs.
In the LTFV investigation, the most recently completed segment of this proceeding as of April 7, 2006, the publication date of the initiation of this review, we found that Promarisco had made sales below the cost of production.
In accordance with section 773(b)(3) of the Act, we calculated the respondents' COP based on the sum of their costs of materials and conversion for the foreign like product, plus amounts for general and administrative (G&A) expenses and interest expenses (
We made an adjustment to OceanInvest's reported costs of manufacture to account for unreconciled costs. Our revision to OceanInvest's COP data is discussed in the Memorandum from Laurens van Houten, Accountant, to Neal Halper, Director, Office of Accounting, entitled “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Results - OceanInvest, S.A.,” dated February 28, 2007.
We recalculated Promarisco's G0z7 A expense ratio to include research and development expenses. Our revision to Promarisco's COP data are discussed in the Memorandum from Frederick W. Mines, Accountant, to Neal Halper, Director, Office of Accounting, entitled “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Results - Promarisco S.A.,” dated February 28, 2007.
On a product-specific basis, we compared the adjusted weighted-average COP to the third country sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used COP exclusive of selling and packing expenses. The prices (inclusive of billing adjustments, where appropriate) were exclusive of any applicable movement charges, and direct and indirect selling expenses and packing expenses, revised where appropriate, as discussed below under the “Price-to-Price Comparisons” section.
In determining whether to disregard third country sales made at prices below the COP, we examined, in accordance with sections 773(b)(1)(A) and (B) or the Act: 1) whether, within an extended period of time, such sales were made in substantial quantities; and 2) whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. Where less than 20 percent of the respondent's third country sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product because we determine that in such instances the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard the below-cost sales because: 1) they were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act, and 2) based on our comparison of prices to the weighted-average COPs for the POR, they were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
We found that, for certain specific products, more than 20 percent of OceanInvest's and Promarisco's third country sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
For those U.S. sales of subject merchandise for which there were no useable third country sales in the ordinary course of trade, we compared EPs to the CV in accordance with section 773(a)(4) of the Act. See “Calculation of Normal Value Based on Constructed Value” section below.
We based NV for OceanInvest on FOB prices to unaffiliated customers in Italy. We made adjustments, where appropriate, to the starting price for billing adjustments. We made deductions, where appropriate, from the starting price for foreign inland freight and Ecuadorian brokerage and handling expenses, under section 773(a)(6)(B)(ii) of the Act.
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale (COS) for imputed credit expenses, bank fees, testing fees, bill of lading fees, and international courier fees. As discussed above under “Export Price,” we recalculated the per-unit amounts for these expenses to reflect a glaze-exclusive basis. We also made adjustments in accordance with 19 CFR 351.410(e) for indirect selling expenses incurred on comparison-market or U.S. sales where commissions were granted on sales in one market but not the other. Specifically, as commissions were
We also deducted comparison-market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act.
OceanInvest reported certain price adjustments relevant to Italian sales as direct selling expenses. We reclassified these items as billing adjustments. We also recalculated the imputed credit expense for both U.S. and Italian sales to account for these items.
We recalculated the reported per-unit commission expenses applicable to Italian sales based on our verification findings.
We recalculated indirect selling expenses to include the cost of a product sample.
We calculated NV based on CIF, C&F or FOB prices to unaffiliated customers in the Spanish market. We made adjustments, where appropriate, to the starting price for billing adjustments. We made deductions from the starting price for movement expenses, including inland freight, marine insurance, and international freight, under section 773(a)(6)(B)(ii) of the Act.
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in COS for imputed credit expenses. We also made adjustments in accordance with 19 CFR 351.410(e) for indirect selling expenses incurred on comparison-market or U.S. sales where commissions were granted on sales in one market but not the other. Specifically, where commissions were granted in the U.S. market but not in the comparison market, we made a downward adjustment to NV for the lesser of 1) the amount of commission paid in the U.S. market, or 2) the amount of indirect selling expenses incurred in the comparison market. If commissions were granted in the comparison market but not in the U.S. market, we made an upward adjustment to NV following the same methodology.
We also deducted comparison market packing costs and added U.S. packing costs, in accordance with section 773(a)(6)(A) and (B) of the Act.
In response to the Department's inquiry, Promarisco submitted a letter on February 14, 2007, explaining that three transactions reported in the Spanish sales data base with missing payment dates were actually free product samples. As this information was received too late for consideration in the preliminary results and did not include any supporting documentation, we have included these transactions in our calculation of NV and set the payment date equal to February 28, 2007, the date of the preliminary results, for purposes of calculating imputed credit expenses.
Promarisco reported in its December 22, 2006, questionnaire response that it did not recalculate the imputed credit expense after revisions were made to the Spanish market sales file to include certain missing payment dates in its October 27, 2006, questionnaire response. Accordingly, we recalculated the imputed credit expense for the Spanish market sales to account for the revised payment dates, based on Promarisco's methodology described in its response.
Promarisco reported certain movement-related insurance expenses incurred on sales to Spain as direct selling expenses. We reclassified these expenses as movement expenses. In addition, we have corrected and recalculated these expenses and marine insurance expenses incurred on certain Spanish sales, in accordance with the information provided in Promarisco's February 12, 2007, submission.
We recalculated indirect selling expenses to include certain expenses Promarisco excluded from its indirect selling expense calculation. See Memorandum to the File entitled “Promarisco, S.A. Preliminary Results Notes and Margin Calculation,” dated February 28, 2007.
Section 773(a)(4) of the Act provides that where NV cannot be based on comparison-market sales, NV may be based on CV. Accordingly, for those frozen warmwater shrimp products for which we could not determine the NV based on comparison-market sales because there were no useable sales of a comparable product, we based NV on the CV.
Section 773(e) of the Act provides that the CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for SG&]A expenses, profit, and U.S. packing costs. For each respondent, we calculated the cost of materials and fabrication based on the methodology described in the “Cost of Production Analysis” section, above. We based SG&A and profit for each respondent on the actual amounts incurred and realized by the respondents in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the comparison market, in accordance with section 773(e)(2)(A) of the Act.
We made adjustments to CV for differences in COS in accordance with section 773(a)(8) of the Act and 19 CFR 351.410. For comparisons to EP, we made COS adjustments by deducting direct selling expenses incurred on comparison-market sales from, and adding U.S. direct selling expenses to, CV.
We did not make any currency conversions pursuant to section 773A of the Act and 19 CFR 351.415 because all sales and cost data for both respondents were reported in U.S. dollars.
We preliminarily determine that weighted-average dumping margins exist for the respondents for the period August 4, 2004, through January 31, 2006, as follows:
Review-Specific Average Rate Applicable to the Following Companies:
AFA Rate Applicable to the Following Companies:
The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Interested parties who wish to request a hearing or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, Room B-099, within 30 days of the date of publication of this notice. Requests should contain: 1) the party's name, address and telephone number; 2) the number of participants; and 3) a list of issues to be discussed.
The Department will issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP 15 days after the date of publication of the final results of this review.
Regarding OceanInvest, for those sales where it reported the entered value of its U.S. sales, we will calculate importer-specific
Regarding Promarisco, because it reported the entered value of all of its U.S. sales, we will calculate importer-specific
For the responsive companies which were not selected for individual review, we will calculate an assessment rate based on the weighted-average of the cash deposit rates calculated for the companies selected for individual review excluding any which are
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: 1) the cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent, and therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties
This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.
Import Administration, International Trade Administration, Department of Commerce.
March 9, 2007.
Yasmin Nair or Nancy Decker, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-3813 or (202) 482-0196, respectively.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department of Commerce (“Department”) to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested and a final determination within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within the time period, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days, respectively.
On August 30, 2006, the Department published in the
The Department requires additional time to review, analyze, and verify the sales and cost information submitted by the parties in this administrative review. Moreover, the Department requires additional time to issue supplemental questionnaires and fully analyze the responses. Thus, it is not practicable to complete this review within the original time limit (
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On September 29, 2006, the U.S. Department of Commerce (“the Department”) published a notice of initiation of an administrative review of the antidumping duty order on small diameter seamless carbon and alloy steel standard, line and pressure pipe (“seamless line and pressure pipe”) from Argentina. The review covers one manufacturer/exporter, Siderca S.A.I.C. (“Siderca”). The period of review (“POR”) is August 1, 2005, through July 31, 2006. Following the receipt of a certification of no shipments by Siderca, we notified the domestic interested party of the Department's intent to rescind this review and provided an opportunity to comment on the rescission. We received no comments. Therefore, we are rescinding this administrative review.
March 9, 2007.
Helen Kramer or Angelica Mendoza, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0405 and (202) 482-3019, respectively.
On August 1, 2006, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on seamless line and pressure pipe from Argentina for the period August 1, 2005, through July 31, 2006.
The antidumping duty order on imports from Argentina covers small diameter seamless carbon and alloy standard, line, and pressure pipes (“seamless pipes”) produced to the American Standard for Testing and Materials (“ASTM”) standards A-335, A-106, A-53, and American Petroleum Institute (“API”) standard API 5L specifications and meeting the physical parameters described below, regardless of application. The scope of this order also includes all products used in standard, line, or pressure pipe applications and meeting the physical
The following information further defines the scope of this order, which covers pipes meeting the physical parameters described above.
Seamless pressure pipes are intended for the conveyance of water, steam, petrochemicals, chemicals, oil products, natural gas and other liquids and gasses in industrial piping systems. They may carry these substances at elevated pressures and temperatures and may be subject to the application of external heat. Seamless carbon steel pressure pipe meeting the ASTM standard A-106 may be used in temperatures of up to 1000 degrees Fahrenheit, at various American Society of Mechanical Engineers (“ASME”) code stress levels. Alloy pipes made to ASTM standard A-335 must be used if temperatures and stress levels exceed those allowed for A-106 and the ASME codes. Seamless pressure pipes sold in the United States are commonly produced to the ASTM A-106 standard.
Seamless standard pipes are most commonly produced to the ASTM A-53 specification and generally are not intended for high temperature service. They are intended for the low temperature and pressure conveyance of water, steam, natural gas, air and other liquids and gasses in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipes (depending on type and code) may carry liquids at elevated temperatures but must not exceed relevant ASME code requirements. Seamless line pipes are intended for the conveyance of oil and natural gas or other fluids in pipelines. Seamless line pipes are produced to the API 5L specification. Seamless pipes are commonly produced and certified to meet ASTM A-106, ASTM A-53 and API 5L specifications. Such triple certification of pipes is common because all pipes meeting the stringent A-106 specification necessarily meet the API 5L and ASTM A-53 specifications. Pipes meeting the API 5L specification necessarily meet the ASTM A-53 specification. However, pipes meeting the A-53 or API 5L specifications do not necessarily meet the A-106 specification. To avoid maintaining separate production runs and separate inventories, manufacturers triple- certify the pipes. Since distributors sell the vast majority of this product, they can thereby maintain a single inventory to service all customers. The primary application of ASTM A-106 pressure pipes and triple certified pipes is in pressure piping systems by refineries, petrochemical plants and chemical plants. Other applications are in power generation plants (electrical-fossil fuel or nuclear), and in some oil field uses (on shore and offshore), such as for separator lines, gathering lines and metering runs. A minor application of this product is for use as oil and gas distribution lines for commercial applications. These applications constitute the majority of the market for the subject seamless pipes. However, A-106 pipes may be used in some boiler applications.
The scope of this order includes all seamless pipe meeting the physical parameters described above and produced to one of the specifications listed above, regardless of application, and whether or not also certified to a non-covered specification. Standard, line and pressure applications and the above-listed specifications are defining characteristics of the scope of this order. Therefore, seamless pipes meeting the physical description above, but not produced to the A-335, A-106, A-53, or API 5L standards shall be covered if used in a standard, line or pressure application. For example, there are certain other ASTM specifications of pipe that, because of overlapping characteristics, could potentially be used in A-106 applications. These specifications generally include A-162, A-192, A-210, A-333, and A-524. When such pipes are used in a standard, line or pressure pipe application, such products are covered by the scope of this order.
Specifically excluded from the scope of this order are boiler tubing and mechanical tubing, if such products are not produced to A-335, A-106, A-53 or API 5L specifications and are not used in standard, line or pressure applications. In addition, finished and unfinished OCTG are excluded from this order, if covered by the scope of another antidumping duty order from the same country. If not covered by such an OCTG order, finished and unfinished OCTG are included in this order when used in standard, line or pressure applications. Finally, also excluded from this order are redraw hollows for cold-drawing when used in the production of cold-drawn pipe or tube. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive.
As noted above, on October 18, 2006, Siderca submitted a letter to the Department indicating that it did not make any shipments or entries of subject merchandise to the United States during the POR. In response to the Department's query to U.S. Customs and Border Protection (CBP), CBP confirmed that a small quantity of subject merchandise was entered for consumption into the United States during the POR from a third country. On February 8, 2007, the Department placed on the record of this review copies of the entry documents in question. On the basis of these documents, the Department concluded that Siderca could not have known that the merchandise exported to a third country would be re-exported to the United States. On February 20, 2007, the Department notified counsel for U.S. Steel of its intent to rescind this administrative review and requested comments on the intended rescission. Counsel notified the Department on the following day that they would not comment and had no objection to rescission.
Based upon Siderca's certification and the evidence on the record, we are satisfied that Siderca had no shipments of subject merchandise to the United States during the POR. Pursuant to 19 CFR 351.213(d)(3), the Department may rescind an administrative review, in whole or with respect to a particular exporter or producer, if the Secretary concludes that, during the period covered by the review, there were no
Although Siderca did not have any sales or exports of subject merchandise to the United States during the POR, its subject merchandise entered the United States during the POR under its antidumping case number, without its knowledge, by way of intermediaries. The Department will instruct CBP 15 days after the publication of this notice to liquidate such entries at the “All Others” rate in effect on the date of the entry.
We are issuing and publishing this notice in accordance with section 751(a)(1) of the Act and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
March 9, 2007.
Brandon Farlander or Audrey Twyman, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0182 and (202) 482-3534, respectively.
On July 24, 1996, the Department of Commerce (“the Department”) published a countervailing duty order on certain pasta (“pasta” or “subject merchandise”) from Italy.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested and the final results of review within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within the time period, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days, respectively.
We are currently analyzing supplemental information provided by the respondents and the Government of Italy in this review. Because the Department requires additional time to review, analyze, and issue additional supplemental questionnaires, it is not practicable to complete this review within the originally anticipated time limit (
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
A meeting of the Exporters' Textile Advisory Committee will be held on Thursday, April 12, 2007 from 1:00-4:00 at the Ronald Reagan Building, Trade Information Center, 1300 Pennsylvania Avenue, NW., Washington, DC 20004, Training Room A.
The ETAC is a national advisory committee that advises Department of Commerce officials on the identification of export barriers, and on market expansion activities. With the elimination of textile quotas under the WTO agreement on textiles and clothing, the Administration is committed to encouraging U.S. textile and apparel firms to export and remain competitive in the global market.
The meeting will be open to the public with a limited number of seats available. For further information or copies of the minutes, contact Rachel Alarid at (202) 482-5154.
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration, U.S. Commercial Service, Office of Global Trade Programs, in conjunction with the Global Healthcare Team, will lead a healthcare technologies trade mission to Istanbul, Turkey; Amman, Jordan; and Cairo, Egypt from October 24 to November 1, 2007. This mission will allow representatives of U.S. medical equipment and healthcare technology firms interested in entering or expanding existing business in these
This U.S. Department of Commerce trade mission is the ideal way for small and mid-sized companies to evaluate these markets and make important business contacts.
During the trade mission participants will receive:
(A) Briefings on local medical markets;
(B) Introductions to potential distributors, facility administrators, and purchasing managers through group events;
(C) Hospital and other site visits, if applicable;
(D) One-on-one meetings tailored to each firm's interests; and
(E) Meetings with local business representatives and government officials, as suitable.
The precise schedule will depend on the availability of local government and business officials, specific goals of mission participants, and air travel schedules.
Applications for this Mission are available, and may be obtained by contacting: Lisa Huot, USDOC/CS—Room 2118, 1401 Constitution Ave., NW., Washington, DC 20230. Tel: 202-482-2796; Fax 202-482-0115. E-mail:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.
Notice of initiation of a status review under the Endangered Species Act (ESA); request for information.
We, NMFS, announce the initiation of a status review for the cusk and solicit information on the status of, and threats to, the species.
Information regarding the status of, and threats to, the cusk must be received by April 1, 2007.
You may submit information by any one of the following methods:
• Fax: 978-281-9394, Attention: Kim Damon-Randall-Damon
• Mail: Information on paper, disk, or CD-ROM should be addressed to the Assistant Regional Administrator for Protected Resources, NMFS, Protected Resources Division, One Blackburn Drive, Gloucester, MA 01930.
• E-mail:
Kim Damon-Randall, NMFS Northeast Region, 978-281-9300 ext. 6535; or Marta Nammack, NMFS-HQ, Office of Protected Resources, 301-713-1401 ext. 180.
Because of concern over declines in abundance, we identified cusk (Brosme brosme) as a species of concern on April 15, 2004 (69 FR 19975). In May 2003, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) completed a status report for cusk in Canada and assessed the species status as threatened. In April 2006, the Minister of the Environment referred the assessment back to COSEWIC for further information and consideration. It is, therefore, unclear whether cusk will be listed in Canada under the Species at Risk Act.
Our Northeast Fisheries Science Center (NEFSC) autumn bottom trawl survey biomass index for cusk has fluctuated considerably, but a declining trend has been evident since the late 1960s, with all indices remaining at or close to record-low levels from 1985 through 2002 (Sosebee and Cadrin, 2006). The 1998 biomass index is near zero and is the record low. Cusk have been found to be distributed primarily in deeper waters in the central portion of the Gulf of Maine where a declining trend is also apparent on the distribution maps, and where very few fish were caught in 1993-1997 and 1998-2002 (Sosebee and Cadrin, 2006). Mean length has also declined from 24 inches (62 cm) during 1964 to 1987 to 19 inches (50 cm) during the period of 1988 to 1998. In the early 1970s, individual fish weight averaged 3 kg but was reduced by 50 percent to 1.5 kg in the late 1990s. Landings and survey indices have dropped considerably from 1984 to 2004 (NMFS, 2004). The ratio of landings to survey biomass estimates has been increasing since 1986, which implies increased exploitation over that time period.
In the United States, the cusk fishery is not presently managed. Fishing was unrestricted in Canada until 1999 when limitations were established for landings in the Scotia-Fundy region. Despite these limitations, fishing continues to be a source of mortality. Fishing mortality is one of the prime factors for the observed decline. This appears to be a transboundary species, and, as such, conservation measures may be needed both in the United States and Canada.
Our notice establishing the species of concern list states that as resources permit, we intend to conduct status reviews, collect documentation, and make appropriate amendments relevant to species on the list (69 FR 19975; April 15, 2004). As such, we are initiating a status review for cusk. We will use the status review report and any other information that we obtain during this process to determine if listing this species under the ESA is warranted or if this species should be retained or removed from the species of concern list.
To support this status review, we are soliciting information relevant to the status of and threats to the species, including, but not limited to, information on the following topics: (1) Historical and current abundance and distribution of the species; (2) potential factors for the species' decline throughout its range; (3) rates of capture and release of the species from both recreational and commercial fisheries; (4) post-release mortality; (5) life history information (size/age at maturity, growth rates, fecundity, reproductive rate/success, etc.); (6) morphological and molecular information to assist in determining stock structure; (7) threats to the species, particularly: (a) Present or threatened destruction, modification, or curtailment of habitat or range; (b) over-utilization for commercial, recreational, scientific, or educational purposes; (c) disease or predation; (d) inadequacy of existing regulatory mechanisms; or (e) other natural or manmade factors affecting its continued existence; and (8) any ongoing conservation efforts for the species. See
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; availability of permit upgrades.
NMFS is soliciting applications for American Samoa longline limited entry permit upgrades. Fourteen (14) permit upgrades will be available in 2007 for Class A vessel permit holders to upgrade to larger vessel size classes (B-1, C-1, or D-1) in the American Samoa pelagic longline fishery. The permit upgrades are available only to Class A permit holders who participated in the fishery before March 22, 2002, and the highest priority for receiving a permit upgrade will be given to the person with the earliest date of documented participation.
Completed permit upgrade applications must be received by NMFS by May 8, 2007.
Applicants should send completed applications to NMFS Pacific Islands Region (PIR), ATTN: ASLE Permit Upgrade, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700.
Application forms may be obtained from NMFS PIR, ATTN: ASLE Permit Upgrade, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700, or from the NMFS PIR Web site:
Walter Ikehara, NMFS PIR (808)944-2275.
On May 25, 2005, NMFS published a final rule (70 FR 29646) that established a limited entry program for the pelagic longline fishery based in American Samoa, under Amendment 11 to the Fishery Management Plan for Pelagic Fisheries in the Western Pacific Region. American Samoa longline limited entry permits were established for four vessel size classes, based on length:
• Class A: less than or equal to 40 ft (12.2 m),
• Class B and B-1: over 40 ft (12.2 m) to 50 ft (15.2 m) inclusive,
• Class C and C-1: over 50 ft (15.2 m) to 70 ft (21.3 m) inclusive, and
• Class D and D-1: over 70 ft (21.3 m).
A total of 60 initial American Samoa longline limited entry permits were issued, 22 in Class A, five in Class B, 12 in Class C, and 21 in Class D. These numbers are the vessel size class limits on the number of allowed American Samoa longline limited entry permits, as defined by the regulations setting the maximum limit on permits under the limited entry program.
The limited entry program allows for a total of 26 permit upgrades to be made available for the exclusive use of permit holders in Class A, distributed over a four-year period following the issuance of initial limited entry permits. In 2006, eight permit upgrades were available (four in Class B-1, two in Class C-1, and two in Class D-1), but only one Class B-1 upgrade and one Class D-1 upgrade were issued, leaving six unissued. In 2007, 14 permit upgrades will be available (four new and three unissued in Class B-1, two new and two unissued in Class C-1, and two new and one unissued in Class D-1). The Regional Administrator may initially issue Class B-1, C-1 and D-1 permit upgrades only to persons who hold a Class A permit and who participated in the American Samoa pelagic longline fishery before March 22, 2002. The highest priority will be given to those with the earliest date of documented participation. Those receiving upgraded permits must surrender their Class A permits and the surrendered permits are deducted from the allowed Class A permit total.
This notice announces the availability of permit upgrades and solicits applications for the upgrades. Complete applications must include the completed and signed application form (available from NMFS), legible copies of documents supporting historical participation in the American Samoa pelagic longline fishery, and payment for the non-refundable application processing fee. Documents supporting fishery participation should show that fishing was conducted using longline gear. Properly completed applications must be received by NMFS (see
Authoritative additional information on the American Samoa longline limited entry program may be found at 50 CFR part 665.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Mid-Atlantic Fishery Management Council's Scientific and Statistical Committee will hold a Population Dynamics Sub-group public meeting.
The meeting will be held on Friday, March 30, 2007, from 10 a.m. to 4 p.m.
The meeting will be held at the Courtyard by Marriott, Baltimore-Washington Airport, 1671 Nursery Rd., Linthicum, MD 21090; telephone: (410) 859-8855.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; 300 S. New Street, Room 2115, Dover, DE 19904; telephone: (302) 674-2331, extension 19.
The purpose of this meeting is to address issues related to recruitment dynamics and stock rebuilding for the Atlantic butterfish stock. Additional technical issues concerning standards defining best available scientific data may also be discussed.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Bryan at the Mid-Atlantic Council Office, (302) 674-2331 extension 18, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Trawl Survey Advisory Panel, composed of representatives from the National Marine Fisheries Service's Northeast Fisheries Science Center (NEFSC), the Mid-Atlantic Fishery Management Council (MAFMC), the New England Fishery Management Council (NEFMC), Atlantic States Marine Fisheries Commission (ASMFC), and several independent scientific researchers, will hold a public meeting.
The meeting will be held on Wednesday, April 4, 2007, from 8 a.m. to 4 p.m.
The meeting will be held at the Sheraton Providence Airport, 1850 Post Road, Warwick, RI 02886, telephone: (401) 738-4000.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; 300 S. New Street, Room 2115, Dover, DE 19904; telephone: (302) 674-2331, extension 19.
The purpose of this meeting is to tour the new research vessel FSV Henry B. Bigelow, discuss Protocol Development Cruises, NEFSC's upcoming Calibration Design Workshop, NEAMAP cruise usage in defining differences between inshore and offshore stations, and gear standardization issues.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Bryan at the Mid-Atlantic Council Office, (302) 674-2331 extension 18, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Ad Hoc Sector Omnibus Committee (Committee) in March, 2007 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will be held on Thursday, March 29, 2007, at 9:30 a.m.
The meeting will be held at the Holiday Inn, 31 Hampshire Street, Mansfield, MA 02048; telephone: (508) 339-2200; fax: (508) 256-2550.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Committee will continue development of sector programs and operational guidelines.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The North Pacific Fishery Management Council (Council) and its advisory committees will hold public meetings in Anchorage, AK.
The meetings will be held from Monday, March 26 through Tuesday, April 3, 2007. See
The meetings will be held at the Anchorage Hilton Hotel, 500 West Third Avenue, Anchorage, AK.
David Witherell, Council staff, telephone: (907) 271-2809.
The Council will begin its plenary session at 8 a.m. on Wednesday, March 28, continuing through Tuesday, April 3, 2007. The Council will meet jointly with the Alaska Board of Fisheries from 1 p.m. to 5 p.m. on Wednesday, March 28.
The agenda will consist of: Halibut Charter Management; Steller Sea Lion (SSL) Recovery Plan and Biological Opinion (BiOp); Salmon Bycatch; Potential sector split for cod in the Gulf of Alaska (GOA) and License Limitation Program (LLP) recency in the GOA and tendering issues; Dark Rockfish in the GOA (and potential state management aspects); Request for closed area around Unalaska Bay; Arctic Management Plan discussion paper.
The Council's Advisory Panel (AP) will begin at 8 a.m., Monday, March 26 and continue through Saturday, March 31.
The Scientific and Statistical Committee (SSC) will begin at 8 a.m. on Monday, March 26 and continue through Wednesday March 28, 2007.
The Enforcement Committee will meet Tuesday, March 27, from 9 a.m. to 12 noon, in the Birch/Willow Room.
The Ecosystem Committee will meet March 27, from 1 p.m. to 5 p.m., in the Birch/Willow Room.
All meetings are open to the public, except executive sessions. Council Plenary Session:
The agenda for the Council's plenary session will include the following issues. The Council may take appropriate action on any of the issues identified.
1. Reports
•Executive Director's Report (including revised National Environmenal Protection Act (NEPA) process, Statement of Oreganization, Practices, and Procedures).
•NMFS Management Report (including National Bycatch Report Updates and annual catch limit guidelines).
•U.S. Coast Guard Report.
•Alaska Department of Fish & Game Report.
•U.S. Fish & Wildlife Service Report.
•Protected Species Report (including update on recovery plan/BiOp).
2. Charter Halibut Management: NMFS Report on International Pacific Halibut Commission (IPHC) action; receive Stakeholder Committee report, action as necessary; Final action on Moratorium; State/Federal Management - review discussion paper; Review discussion paper on sport fish discard mortality; Initial review of analysis of Area 2C Guideline Harvest Levels (GHLs) measures; Discussion paper on halibut allocations, action as necessary; Report on Alaska Department of Fish & Game (ADF&G) logbook data (SSC only).
3. GOA Groundfish Management Review: Review discussion paper on GOA sideboards; review problem statement and develop alternatives GOA sector split; review problem statement and develop alternatives for GOA latent licenses; review discussion paper on Western GOA pollock trip limits and action as necessary.
4. Trawl LLP Recency: Review discussion paper on interactions with other limited entry programs; review discussion paper on implementation issues; action as necessary.
5. Bering Sea Aleutian Island (BSAI) Crab Management: Review 18-month BSAI Crab Review report, and take action as necessary; review crab data collection protocols, action as necessary.
6. Observer Program: Progress report and action as necessary.
7. Community Development Quota (CDQ): Review of legal opinion about CDQ Program roles and responsibilities, and action as necessary (T).
8. Socioeconomic Data: Receive workgroup report on Comprehensive Socioeconomic Data Collection.
9. Scallop Management: Review and approve Scallop Stock Assessment Fishery Evaluation (SAFE).
10. Groundfish Management: Discussion paper on >Other Species= management; final action on Dark Rockfish management; stock assessment review guidelines, action as necessary; SSCs Salmon Bycatch Workshop; action as necessary.
11. Habitat Conservation: Initial Review of Bering Sea habitat conservation measures; review Habitat Area of Particular Concern (HAPC) priorities and timing, action as necessary; final action on Essential Fish Habitat Aleutian Island open area adjustment.
12. Aleutian Island Fishery Ecosystem Plan (FEP): Initial review of FEP (T).
13. Arctic Management: Review discussion paper, and take action as necessary.
14. Staff Tasking: Review Committees and tasking, and take action as necessary.
15. Other Business.
The SSC agenda will include the following issues:
1. Protected Species
2. Charter Halibut Management
3. GOA Groundfish Management
4. BSAI Crab Management
5. Trawl LLP Recency
6. Socioeconomic Data
7. Scallop Management
8. Groundfish Management
9. Habitat Conservation
10. Aleutian Island Fishery Ecosystem Plan
11. Arctic Management
The Advisory Panel will address the same agenda issues as the Council, except for reports.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at (907) 271-2809 at least 7 working days prior to the meeting date.
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by March 26, 2007.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 07-C0004, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 502, Bethesda, Maryland 20814-4408.
Ronald G. Yelenik, Trial Attorney, Office of Compliance and Field Operations, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7582.
The text of the Agreement and Order appears below.
1. This Settlement Agreement is made by and between the staff (the “staff”) of the U.S.
2. The Commission is an independent federal regulatory agency responsible for the enforcement of the CPSA, 15 U.S.C. 2051-2084.
3. Fisher-Price is a corporation organized and existing under the laws of the State of Delaware, with its principal corporate office in East Aurora, New York. At all times relevant herein, Fisher-Price designed, imported and sold toys and juvenile products.
4. Between June 17, 2002 and July 31, 2002, Fisher-Price imported and sold nationwide approximately 67,000 Little People® Animal Sounds Farm toys (the “Farm(s)” or “products”). The Farms are shaped like a barn and make animal sounds when the doors of the cow or horse stall are opened.
5. The Farms are “consumer product(s)” and, at the times relevant herein, Fisher-Price was a “manufacturer” of “consumer product(s),” which were “distributed in commerce” as those terms are defined in sections 3(a)(1), (4), (11) and (12) of the CPSA, 15 U.S.C. 2052(a)(1), (4), (11) and (12).
6. The Farms are defective because the ringed nail fasteners used to attach the toy “stall doors” in place can disengage from the product. If this should occur, young children could choke on or aspirate the loose nail fastener.
7. On or about September 11, 2002, Fisher-Price first learned of an incident in which a nail fastener disengaged from one of the stall doors.
8. By November 18, 2002, Fisher-Price had become aware of nine reports of nail fasteners coming loose from the stall doors, including one report from a consumer that a nail fastener came out and that her child placed it in her mouth.
9. By early February of 2003, Fisher-Price was aware of two telephone calls in which consumers indicated a concern that this problem posed a choking hazard to children.
10. On February 14, 2003, Fisher-Price learned of a December 30, 2002 incident in which a 14-month old child aspirated a Farm nail fastener into his lung. The child was taken to a hospital where emergency surgery was performed to remove the nail fastener.
11. Despite being aware of the information set forth in paragraphs 4 through 10, Fisher-Price did not report to the Commission until March 14, 2003. By that time, Fisher-Price was aware of at least 33 reports of incidents in which a nail fastener came loose from the stall doors. These included four reports of children who put a fastener in the mouth (including a report of a child who cut the inside of her mouth), and one report of a child who required emergency surgery to remove an aspirated nail fastener from his lung.
12. Although Fisher-Price had obtained sufficient information to reasonably support the conclusion that the Farms contained a defect which could create a substantial product hazard, or created an unreasonable risk of serious injury or death, it failed to immediately inform the Commission of such defect or risk as required by sections 15(b)(2) and (3) of the CPSA, 15 U.S.C. 2064(b)(2) and (3). In failing to do so, Fisher-Price “knowingly” violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).
13. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Fisher-Price is subject to civil penalties for its failure to make a timely report under section 15(b) of the CPSA, 15 U.S.C. 2064(b).
14. Fisher-Price denies that the Farms contain a defect which could create a substantial product hazard, or create an unreasonable risk of serious injury or death, and denies that it violated the reporting requirements of section 15(b) of the CPSA, 15 U.S.C. 2064(b).
15. Fisher-Price believes that the Farms do not violate any CPSC regulations regarding small parts or otherwise and do not violate any applicable safety standards.
16. Fisher-Price denies any liability or wrongdoing of any kind.
17. Fisher-Price was not advised of the December 30, 2002 incident, in which a consumer's child was reported to have aspirated a fastener, until February 14, 2003. The consumer advised Fisher-Price that the incident had been reported to the CPSC. Fisher-Price, nevertheless, filed a Full Report with the CPSC pursuant to Section 15(b) of the CPSA on March 14, 2003 and undertook a Fast Track Recall of the product on April 23, 2003.
18. The Commission has jurisdiction over this matter and over Fisher-Price under the CPSA, 15 U.S.C. 2051-2084.
19. In settlement of the staff's allegations, Fisher-Price agrees to pay a civil penalty of nine hundred seventy five thousand dollars ($975,000.00) within twenty (20) calendar days of service of the Final Order of the Commission accepting this Settlement Agreement. This payment shall be made by check payable to the order of the United States Treasury.
20. The parties enter this Settlement Agreement for settlement purposes only. The Settlement Agreement does not constitute an admission by Fisher-Price or a determination by the Commission that Fisher-Price violated the CPSA's reporting requirements.
21. Upon provisional acceptance of this Settlement Agreement and Order by the Commission, the Commission shall place this Agreement and Order on the public record and shall publish it in the
22. Upon final acceptance of this Settlement Agreement by the Commission and issuance of the Final Order, Fisher-Price knowingly, voluntarily and completely waives any rights it may have in this matter to the following: (i) An administrative or judicial hearing; (ii) judicial review or other challenge or consent of the Commission's actions; (iii) a determination by the Commission as to whether Fisher-Price failed to comply with the CPSA and the underlying regulations; (iv) a statement of findings of fact and conclusions of law; and (v) any claims under the Equal Access to Justice Act.
23. The Commission may publicize the terms of the Settlement Agreement and Order.
24. This Settlement Agreement shall apply to, and be binding upon Fisher-Price and each of its successors and assigns, its parent entity, its parent's subsidiaries, and each of their respective successors and assigns.
25. The Commission's Order in this matter is issued under the provisions of the CPSA, 15 U.S.C. 2051-2084, and a violation of the Order may subject those referenced in paragraph 24 above to appropriate legal action.
26. This Settlement Agreement may be used in interpreting the Order. Agreements, understandings, representations, or interpretations made outside of this Settlement Agreement and Order may not be used to vary or to contradict its terms.
27. This Settlement Agreement and Order shall not be waived, changed, amended, modified, or otherwise altered, without written agreement thereto executed by the party against whom such amendment, modification, alteration, or waiver is sought to be enforced, and approval by the Commission.
28. If, after the effective date hereof, any provision of this Settlement Agreement and Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Settlement Agreement and Order, such provision shall be fully severable. The rest of the Settlement Agreement and Order shall remain in full effect, unless the Commission and Fisher-Price determine that severing the provision materially changes the purpose of the Settlement Agreement and Order.
Dated:
Dated:
Upon consideration of the Settlement Agreement entered into between Fisher-Price, Inc. (“Fisher-Price”) and the staff of the U.S. Consumer Product Safety Commission (the “Commission”), and the Commission having jurisdiction over the subject matter and over Fisher-Price, and it appearing the Settlement Agreement is in the public interest, it is
Provisionally accepted and Provisional Order issued on the 28th day of February, 2007.
By Order of the Commission.
DoD, National Defense University; National Security Education Program.
Notice
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the National Defense University, announces the proposed revision of a previously approved public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by May 8, 2007.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the National Security Education Program, PO Box 20010, attn: Angel Park, Arlington, VA 22219, or call the National Security Education Program Office, at (703) 696-1991.
Respondents are recipients of undergraduate scholarships and graduate fellowship assistance from the National Security Education Program (NSEP), established by the National Security Education Act of 1991. DD Form 2752 is the Service Agreement that award recipients sign in order to acknowledge their understanding of their service obligation, and agree to the obligation. DD Form 2753 is the Service Agreement Report Form on which the student provides an account of his or her work toward fulfilling the service obligation, or justifies a request for deferment. The forms supporting this information collection requirement represent the sole means of establishing a written agreement of the service obligation and progress reports toward fulfilling this obligation between students who receive NSEP undergraduate scholarships and graduate fellowship awards, the program office, and the Department.
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice.
In accordance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Assistant Secretary of Defense for Health Affairs announces the proposed extension of a currently approved collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed extension of collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the
Consideration will be given to all comments received May 8, 2007.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection, please write to the TRICARE Management Activity—Aurora, Office of Program Requirements Division, 16401 E. Centretech Parkway, ATTN: John J.M. Leininger, Aurora, CO 80011-9066, or call TRICARE Management Activity, Office of Program Requirements Division at (303) 676-3613.
This collection instrument is for use by health care providers under the TRICARE Program. TRICARE is a health benefits entitlement program for the dependents of active duty Uniformed Services member and deceased sponsors, retirees and their dependents, dependents of Department of Homeland Security (Coast Guard) sponsors, and certain North Atlantic Treaty Organizations, National Oceanic and Atmospheric Administration, and Public Health Service eligible beneficiaries. The CMS-1500 form is used by individual professional health care or health care related providers to file for reimbursement of civilian health care services or supplies provided to TRICARE beneficiaries. This is the national standard claim form accepted by all major commercial and government payers.
Office of the Under Secretary of Defense (Personnel and Readiness), DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense (Personnel and Readiness) announces the following proposed extension of a public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by May 8, 2007.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on the proposed information collection or to obtain a copy of the proposed and associated collection instruments, please write to the Office of the Under Secretary of Defense (Personnel Readiness) (Military Community and Family Policy/Educational Opportunities Directorate),
This information is needed to satisfy Public Law 101-510, the Defense Department's Fiscal Year 1991 Authorization Act, November 5, 1990, which directed the Secretary of Defense release to civilian employers, organization and other appropriate entities, the names (and other pertinent information) of separating members of the Armed Forces, their spouses, and civilian employees who are seeking employment in the civilian sector. The collection is also required to satisfy Public Law 102-484, the Defense Department's Fiscal Year 1993 Authorization Act, October 23, 1992, which directed the Secretary of Defense to maintain a public and community service registry in which separating Service members would be encouraged to enter into employment in the public and community services arena. DD Form 2581, “Operation Transition Employer Registration,” and DD Form 2581-1, “Public and Community Service Organization Validation,” are used to support this effort.
Office of the Assistant Secretary of Defense (Health Affairs), DoD.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended) and the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), announcement is made of the following committee meeting:
Department of Defense Task Force on the Future of the Military Health Care, a duly established subcommittee of the Defense Health Board.
March 28, 2007.
8:30 a.m. to 4 p.m.
National Transportation Safety Board Conference Center, 429 L'Enfant Plaza, Washington, DC 20594.
To obtain, review, and evaluate information related to the Task Force's congressionally-directed mission to examine matters relating to the future of military health care. The Task Force members will receive briefings on topics related to the delivery of military health care during the public meeting.
Discussion topics include Beneficiary and Government cost sharing structure and premium payments structure.
Prior to the public meeting the Task Force will conduct an Administrative Working Meeting from 8:30 a.m. to 9:15 a.m. to discuss solely administrative matters of the Task Force. In addition, the Task Force, following its public meeting, will conduct a Preparatory Working Meeting from 3:30 p.m. to 4 p.m. to solely analyze relevant issues and facts in preparation for the Task Force's next meeting. Both the Administrative and Preparatory Working Meetings will be held at the National Transportation Safety Board Conference Center. Pursuant to 41 Code of Federal Regulations, Part 102-3.160, both the Administrative and Preparatory Working Meetings will be closed to the public.
Additional information and meeting registration is available online at the Defense Health Board Web site,
Colonel Christine Bader, Executive Secretary, Department of Defense Task Force on the Future of Military Health Care, Skyline One, 5205 Leesburg Pike, Suite 810, Falls Church, VA 22041, (703) 681-3279, ext. 109 (
Open sessions of the meeting will be limited by space accommodations. Any interested person may attend; however, seating is limited to the space available at the National Transportation Safety Board Conference Center. Individuals or organizations wishing to submit written comments for consideration by the Task Force should provide their comments in an electronic (PDF Format) document to the Executive Secretary of the Department of Defense Task Force on the Future of Military Health Care,
Office of the Assistant Secretary of Defense (Health Affairs); DoD.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix as amended ), the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the following meeting notice is announced.
Independent Review Group To Report on Rehabilitative Care and Administrative Processes at Walter Reed Army Medical Center and National Naval Medical Center—a subcommittee of the Defense Health Board (DHB).
March 13, 2007 (Open Session). March 14, 2007 (Open Session).
13:30 p.m.-15 p.m. (March 13, 2007). 13:30 p.m.-15 p.m. (March 14, 2007).
Joel Auditorium, Building 1, Walter Reed Army Medical Center, 16th Street, Washington, DC 20307 (March 13, 2007) and Clark Auditorium, Building 10, National Naval Medical
The purpose of the meeting is to discuss the mechanisms the Independent Review Group to Report on Rehabilitative Care and Administrative Processes at Walter Reed Army Medical Center and National Naval Medical Center (hereafter referred to as the “Independent Review Group”) is using and will use to identify critical shortcomings in and opportunities to improve rehabilitative care, administrative processes, and quality of life for injured and sick members of the Armed Forces at the Walter Reed Army Medical Center (SRAMC) and the National Naval Medical Center (NNMC)—in order to make recommendations for corrective actions. This meeting is intended as one of these mechanisms as interested individuals and groups will be given an opportunity to provide relevant input directly to the Independent Review Group.
The Honorable John O. Marsh (Co-chair) will open both sessions and present a short summary of mechanisms the Independent Review Group is using and will use to identify shortcomings and opportunities for improvement. After comments from group members, members of the public invited to make oral presentations (in accordance with procedures described in this notice) will be given an opportunity to orally provide relevant information. The Honorable Togo West (Co-chair) will close each session, reviewing mechanisms members of the public may use to provide additional information to the Independent Review Group.
Members of the public wishing to provide input to the Independent Review Group at either open sessions should submit written statements in accordance with 41 CFR 102-3.140(C), section 10(a)(3) of the Federal Advisory Committee Act, and the procedures described in this notice. Written statements should be no longer than two type-written pages and must address the following detail: The issue, discussion, and a recommended course of action. Supporting documentation may be included as needed to establish the appropriate historical context and to provide any necessary background information.
Individuals submitting written statements must submit their statements to the Defense Health Board's Designated Federal Officer at the address detailed below and should provide a fax copy directly to the Independent Review Group Staff Director at 703-602-6989. If a written statement is not received at least 1 calendar day prior to the sessions which are the subject of this notice, then it may not be possible to arrange for an opportunity to present at one of the sessions. Regardless of whether a written statement leads to oral presentation at one of the sessions, it will still be provided to the members of the Independent Review Group for their review.
The Designated Federal Officer will review all timely submissions with the Independent Review Group Co-Chairs and ensure they are provided to members of the Independent Review Group before the sessions that are subject to this notice. After reviewing the written statements, the Chairperson and the Designated Federal Officer may choose to invite those who submit statement to orally present their issues during the sessions.
The Designated Federal Officer, in consultation with the Independent Review Group Co-Chairs, may, if desired, allot a specific amount of time for members of the public to orally present their issues for review and discussion by the members of the Independent Review Group.
On March 1, 2007 the members of the Independent Review Group had an administrative working meeting to discuss administrative matters pertaining to the Independent Review Group, and to receive administrative information from the Department of Defense. During the meeting the members of the Independent Review Group indicated that they wanted to hold a public meeting at the earliest opportunity, and the earliest that a meeting could be scheduled was March 13-14, 2007. Since these dates are within the 15-calendar day notification window, the Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3,150(b), grants the Independent Review Group a waiver to the 15-calendar day notification requirement.
Colonel Roger L. Gibson, Executive Secretary, Defense Health Board, Five Skyline Place, 5111 Leesburg Pike, Room 810, Falls Church, Virginia 22041-3206, (703) 681-3279, Ext. 123, (
Defense National Stockpile Center (DNSC), Defense Logistics Agency.
Notice of availability of environmental assessment and a draft finding of no significant impact for the removal of low-activity contamination.
The Defense Logistics Agency announces the availability of the Environmental Assessment (EA) and draft Finding of No Significant Impact (FONSI) for the removal of low-activity contamination resulting from storage of radioactive source material in the National Defense Stockpile of strategic and critical materials.
Stockpiles of commodities containing source material have been removed from DNSC depots at Curtis Bay, MD and Hammond, IN. At the Curtis Bay Depot, the commodities containing source material (columbium/tantalum, thorium nitrate, tungsten ore and concentrates, thorium hydroxide, thorium oxide, monazite sand, uranium pitchblende ore, and sodium sulfate) were previously stored in 16 of the original 59 warehouses. Since the middle 1980s, over 19,000 drums of thorium nitrate were stored in three warehouses. Previously the thorium nitrate stockpile was stored for short periods in six other warehouses on the site. At the Hammond Depot, the commodities containing source material (columbium/tantalum, thorium nitrate, monazite sands, sodium sulfate, and tungsten ore and concentrates) were previously stored in two of the three warehouses on the site. Cleanup of any residual contamination from storage of the commodities containing source material is one task DNSC must complete before its Nuclear Regulatory Commission license can be terminated.
Following evaluation of reasonable alternatives conducted by Oak Ridge National Laboratory on behalf of DNSC, DNSC proposes to remove residual contamination and transfer the contaminants to a regulated disposal site. This disposal will be performed in a manner that will be safe, secure, and environmentally sound and minimizes radiation exposure and potential for risk to workers, the public, and the environment.
Comments on the draft FONSI received by April 9, 2007 will be considered when preparing the final version of the FONSI.
The EA and draft FONSI are available for review on the DNSC Web site (
Mr. Michael Pecullan, Phone (703) 767-7620 or
Fish and Wildlife Service, Interior; U.S. Army Corps of Engineers, DoD.
Notice of availability: Draft environmental impact statement/environmental impact report; request for comments.
The U.S. Fish and Wildlife Service (Service) and the California Department of Fish and Game (CDFG) are proposing a restoration plan for 15,100 acres (6,111 hectares) of former commercial salt ponds in south San Francisco Bay. This South Bay Salt Pond (SBSP) Restoration Project would use a combination of restored tidal marsh, managed ponds, flood control measures and public access features to meet the three goals of the plan: to restore wildlife habitat, to provide flood protection and to provide wildlife-oriented public access. The ponds are located at the Don Edwards San Francisco Bay National Wildlife Refuge and at the Eden Landing State Ecological Reserve.
The Draft Environmental Impact Statement/Environmental Impact Report (EIS/EIR) includes program-level evaluation of the SBSP long-term alternatives as well as project-level analysis of the first phase of restoration (the Phase 1 actions).
The Draft EIS/EIR has been prepared jointly by the Service, the U.S. Army Corps of Engineers (Corps) and the CDFG to analyze the impacts of the SBSP. The EIS/EIR presents a limited evaluation of the potential impacts associated with the list of possible South San Francisco Bay Shoreline Study (Shoreline Study) actions. The Shoreline Study area includes the SBSP Restoration Project area as well as shoreline and floodplain areas in the counties of Alameda, San Mateo, and Santa Clara. The Corps and non-Federal sponsors will prepare an EIS/EIR for the Shoreline Study, which will tier off of this EIS/EIR and cover specific project-level actions.
Note that the Draft SBSP EIS/EIR is being submitted for public review under separate Federal and State processes. The following addresses and due dates are applicable to the Federal NEPA review process:
For the Federal process, written comments under the National Environmental Policy Act should be received on or before April 23, 2007. We will hold two public meetings in March 2007 to solicit comments on the draft Environmental Impact Statement. Dates, times, and addresses for the public meetings follow.
• March 28, 2007, 6 p.m. to 8 p.m., NASA Research Center, Building 943 (Eagle Room), Moffett Field, CA 94035.
• March 29, 2007, 6 p.m. to 8 p.m., Centennial Hall, 22292 Foothill Boulevard, Room 4, Hayward, CA 94541.
Call Anna Schneider at (510) 286-1015 if directions are needed. Persons needing reasonable accommodations in order to attend and participate in these public meetings should contact Anna Schneider at (510) 286-1015 sufficiently in advance of the meeting to allow time to process the request.
Written comments and requests for information should be sent to Clyde Morris, Refuge Manager, Don Edwards San Francisco Bay NWR, 9500 Thornton Avenue, Newark, CA 94560. Written comments may also be sent by facsimile to (510) 792-5828 or through the public comments link on the South Bay Salt Pond Restoration Project Web site, at
Questions regarding the Federal National Environmental Policy Act (NEPA) process may be directed to Clyde Morris, Refuge Manager, Don Edwards San Francisco Bay NWR, at the above address; telephone (510) 792-0222, or Yvonne LeTellier, Project Manager, U.S. Army Corps of Engineers, 1455 Market Street, San Francisco, CA 94103; (415) 503-6744. Questions related to the California Environmental Quality Act (CEQA) process may be directed to John Krause, California Department of Fish and Game, Region 3 Headquarters, P.O. Box 47, Yountville, CA 94599; telephone (707) 944-5500.
Individuals wishing copies of the Draft EIS/EIR should contact the Service by letter, facsimile to the San Francisco Bay National Wildlife Refuge Complex or contact through the restoration project Web site (see
•
•
•
•
•
•
•
The document may also be viewed on the restoration project Web site
On March 16, 2003, the State of California and the Service acquired 15,100 acres of commercial salt ponds from Cargill, Inc. in South San Francisco Bay which are the subject of the SBSP. The purpose of the acquisition was to protect, restore and enhance the property for fish and wildlife, as well as to provide
The SBSP Restoration Project was planned in close coordination with a related but separate project, the Shoreline Study. The Congressionally-authorized Shoreline Study will identify and recommend for Federal funding one or more projects for flood damage reduction, ecosystem restoration and related purposes such as public access. Because they have similar objectives and geographic scope and include restoration and flood management components, the planning and management of these two projects is being closely integrated. Planning for the Shoreline Study will be conducted through several stages referred to as Interim Feasibility Studies, and the Corps is currently developing alternatives for the first stage of the Shoreline Study (the Alviso Ponds and Santa Clara County Interim Feasibility Study) in partnership with the Study's non-Federal sponsors, the Santa Clara Valley Water District and the California Coastal Conservancy and in cooperation with the Service. Potential Shoreline Study actions include flood protection improvements, ecosystem restoration, and recreation and public access features, which may overlap considerably with proposed SBSP Restoration Project actions.
The Initial Stewardship Plan (ISP) is an interim plan now in operation to maintain and enhance the biological and physical conditions within the SBSP area in the interim period between the cessation of salt production and the implementation of the long-term restoration plan that will emerge from the SBSP Restoration Project planning process. Because the SBSP Restoration Project will be implemented in phases over time, some ponds may be managed under the ISP for many years. The ISP actions include construction and operation of water control structures to circulate bay waters through a series of pond clusters to maintain low salinity, provide wildlife habitat, and maintain at least the current level of flood protection. Three of the ponds' levees were breached to allow full tidal wetland restoration. Additionally, some ponds are managed as seasonal wetlands that are allowed to fill with rain water in the winter and dry through evaporation during the summer months while other ponds are operated as high salinity ponds to provide habitat for wildlife requiring those conditions. Certain ponds are still being managed by Cargill while they reduce the salinity levels by moving the saltiest brines to its plant site in Newark, California.
The actual long-term restoration of the salt ponds is the subject of the SBSP Restoration Project. Implementation of the long-term restoration plan is expected to be conducted in phases with some phases extending beyond 20 years. This EIS/EIR is programmatic, covering the long-term plan for the entire SBSP planning area and is project specific for the Phase 1 projects which will be implemented in the near term.
The Draft EIS/EIR considers three programmatic alternatives for the SBSP: a No Action Alternative (Alternative A), a Managed Pond Emphasis Alternative (Alternative B), and a Tidal Emphasis Alternative (Alternative C).
Under the No Action alternative (Alternative A), the expected scenario at Year 50 is evaluated as if no long-term restoration plan is implemented. CDFG and the Service would continue to operate and maintain the ponds in a manner similar to the ISP, although it is assumed that CDFG and the Service would not have the funding to maintain full ISP operations over the 50-year planning horizon. No new public access or recreational facilities are proposed under this alternative.
Under the Managed Pond Emphasis Alternative (50 percent tidal habitat: 50 percent managed ponds by area) (Alternative B), the expected scenario at Year 50 would contain approximately 7,500 acres of tidal habitat and 7,500 acres of managed pond habitat. Approximately 20 percent of the managed ponds would be reconfigured to improve foraging, roosting, and nesting opportunities for shorebirds, waterfowl, and other waterbirds. In addition, Alternative B would provide a cohesive line of flood protection along the perimeter of the project area. This alternative would also provide public access and recreation features in the form of trails and viewing platforms, interpretive stations, waterfowl hunting, access to and interpretation of cultural resource features, opportunities for education and interpretation, non-motorized boat launching points and associated staging and parking areas.
Under the Tidal Emphasis Alternative (90 percent tidal habitat : 10 percent managed ponds by area), the expected scenario at Year 50 would contain approximately 13,400 acres of tidal habitat and 1,600 acres of managed pond habitat. All managed ponds in Alternative C would be reconfigured to substantially enhance foraging, roosting and nesting opportunities for shorebirds, waterfowl and other waterbirds. Flood protection under Alternative C would be similar to Alternative B, with the exception that the length of existing slough levees abandoned would increase in Alternative C. Alternative C would also provide public access and recreation features similar to those described for Alternative B.
Alternatives B and C are “bookends” that represent possible outcomes ranging from a 50:50 tidal to managed pond scenario to a 90:10 tidal to managed pond scenario. The optimal configuration of tidal habitat and managed ponds that achieves the SBSP objectives while avoiding significant impacts to environmental resources would fall somewhere between these bookends and would be guided by the Adaptive Management Plan, the cornerstone of the SBSP.
The Draft EIS/EIR also addresses, at the project level, Phase 1 of the SBSP. The Phase 1 actions are common elements of the long-term Alternatives B and C. Phase 1 actions would include a range of habitat types and early experiments that will be used to inform the Adaptive Management Plan. These include creating tidal, muted tidal and managed pond habitats as well as a variety of public-access features.
The Service and the Corps invite the public to comment on the Draft Environmental Impact Statement during a 45-day public comment period. The Service and the Corps will evaluate the comments submitted thereon to prepare a Final EIS/EIR. A decision will be made no sooner than 30 days after the publication of the Final EIS/EIR. It is anticipated that a Record of Decision will be issued by the Service in the fall of 2007.
This notice is provided pursuant to regulations for implementing the National Environmental Policy Act of 1969 (40 CFR 1506.6).
Department of the Navy, DoD.
Notice.
Pursuant to Section 102(2)(C) of the National Environmental Policy Act (NEPA) of 1969, as implemented by the Council on Environmental Quality Regulations (40 CFR parts 1500-1508), the Department of the Navy (DON) has prepared and filed with the U.S. Environmental Protection Agency (EPA) a Draft Environmental Impact Statement (EIS) to evaluate the potential environmental consequences of the proposed Kilo Wharf Extension, Apra Harbor Naval Complex (AHNC), Guam, Mariana Islands.
The DON will conduct one public hearing to receive oral and written comments on the Draft EIS. Federal, Territorial, local agencies and interested individuals are invited to be present or represented at the public hearing. DON representatives will be available to clarify information related to the Draft EIS. This notice announces the date and location of the public hearing for this Draft EIS.
A public hearing will be held on Wednesday, March 28, 2007, at 6 p.m. at the Hyatt Regency Guam, 1155 Pale San Vitores Road, Tuman Bay, Guam, Mariana Islands.
Naval Facilities Engineering Command, Pacific, 258 Makalapa Drive, Suite 100, Pearl Harbor, HI 96860-3134,
A Notice of Intent to prepare this Draft EIS was published in the
The proposed action is to provide adequate berthing facilities (including shore utilities and wharf-side handling area) to support the T-AKE which is a new class of multi-purpose dry cargo/ammunition ship that will replace existing ammunition ships currently forward deployed to the AHNC, Guam. As part of its ordnance support function, Commander, Navy Region Marianas (COMNAVREGMARIANAS) is charged with providing adequate facilities for the new T-AKE vessels scheduled to be in service in Guam in fiscal year 2010. The new T-AKE will be homeported in San Diego, CA, with two ships forward deployed to AHNC as ammunition ships serving Guam, Asia, the Western Pacific, and the Middle East. The two T-AKE ships will replace two T-AE ammunition ships that are currently forward-deployed to Guam. The existing Kilo Wharf, located within the AHNC in Outer Apra Harbor, is 400-feet (ft) long (122 meters (m)), and is the DoD's only dedicated ammunition wharf in the Western Pacific Region. The T-AKE is 689 ft (210 m) long, and requires 800 ft (244 m) for berthing. The proposed action is needed because Kilo Wharf is inadequate to support the T-AKE and there are no other suitable facilities on Guam available to accommodate this class of ammunition ship. The new wharf facilities must meet DoD technical design standards to ensure safe and efficient ordnance loading/offloading for the T-AKE.
COMNAVREGMARIANAS evaluated a rane of alternatives that would meet action objectives, and applied screening criteria to identify those alternatives that were “reasonable” (i.e., practical and feasible from an operations, technical, and economic standpoint). Reasonable alternatives were carried through the Draft EIS analysis. The Draft EIS considers three alternatives: (1) Extending Kilo Wharf by 400 ft (122 m) to the west (“West Extension Alternative”), (2) extending Kilo Wharf by 115 ft (35 m) to the east and 285 ft (87 m) to the west (“East-West Extension Alternative”), and (3) the No-Action Alternative, considered in accordance with Section 1502.14(d) of the NEPA regulation. The West Extension Alternative is considered the Preferred Alternative. Both the West Extension Alternative and the East-West Extension Alternative would provide adequate berthing for the T-AKE in accordance with DoD technical design standards, and include utility and infrastructure upgrades to accommodate the T-AKE. The Draft EIS also considers the No Action Alternative, which assumes that the T-AKE would be berthed at the existing Kilo Wharf with no wharf improvements or utility and infrastructure upgrade.
The Draft EIS evaluates the environmental effects associated with the wharf construction on the physical environment, land and water use, the social and economic environment, infrastructure and services, cultural resources, hazardous and regulated materials and waste, and biological resources, including marine habitats that provide ecological services. Methods to reduce or minimize impacts to affected marine habitats are also addressed. The analysis includes an evaluation of the direct, indirect, and cumulative impacts. Implementation of the proposed action is not expected to result in any significant short or long term impacts on physical, socioeconomic, or biological resources, however, there would be unavoidable adverse impacts to limited areas of marine benthic habitat.
The Draft EIS has been distributed to various Federal and Territorial agencies, elected officials, special interest groups, and interested parties, and is available for public review at the following public libraries: (1) Nieves M. Flores Memorial Library, 254 Martyr Street, Hagatna, Guam 96910; (2) Robert F. Kennedy Memorial Library, University of Guam, 303 University Drive, Mangilao, Guam 96923.
The DON will conduct a public hearing to receive oral and written comments concerning the Draft EIS. The public hearing will include a brief presentation followed by a request for comments on the Draft EIS. Federal, Territorial, and local agencies, and interested parties are invited to be present or represented at the hearings. Those who intend to speak will be asked to submit a speaker card (available at the door). Oral comments will be electronically recorded and transcribed by a stenographer. To assure accuracy of the record, all statements, both oral and written, will become part of the public record on the Draft EIS and will be responded to in the Final EIS. Equal weight will be given to both oral and written statements. In the interest of available time and to ensure that all who wish to give an oral statement have the opportunity to do so, each speaker's comments will be limited to three minutes. If a longer statement is to be presented, it should be summarized at the public hearing and the full text submitted in writing either at the hearing or faxed or mailed to: Naval Facilities Engineering Command Pacific, 258 Makalapa Drive, Ste 100, Pearl Harbor, HI 96860-3134,
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before May 8, 2007.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Catalog of Federal Domestic Assistance (CFDA) Number: 84.165A.
The Department is not bound by any estimates in this notice.
For FY 2007 these priorities are competitive preference priorities. Under 34 CFR 75.105(c)(2)(i) we award up to an additional 40 points depending on how well the application meets these priorities. The maximum possible points for each priority are indicated in parentheses following the name of the competitive preference priority. These points are in addition to any points the application earns under the selection criteria.
(a) The costs of fully implementing the magnet schools project as proposed;
(b) The resources available to the applicant to carry out the project if funds under the program were not provided;
(c) The extent to which the costs of the project exceed the applicant's resources; and
(d) The difficulty of effectively carrying out the approved plan and the project for which assistance is sought, including consideration of how the design of the magnet schools project—e.g., the type of program proposed, the location of the magnet school within the LEA—impacts on the applicant's ability to successfully carry out the approved plan.
(1) Help parents whose children attend low-performing schools (that is, schools that have been identified for school improvement, corrective action, or restructuring under Title I of the ESEA) by—
(a) Selecting schools identified for school improvement, corrective action, or restructuring under Title I as magnet schools to be funded under this project and improving the quality of teaching and instruction in these schools; or
(b) Maximizing the opportunity for students in low-performing schools to attend higher-performing magnet schools funded under the project and thereby reduce minority group isolation in the low-performing sending schools; and
(2) Effectively inform parents whose children attend low-performing schools about choices that are available to them in the magnet schools to be funded under the project.
For the purpose of selecting applications under this priority,
This priority is:
Evaluation methods using an experimental design are best for determining project effectiveness. Thus, when feasible, the project must use an experimental design under which participants—e.g., students, teachers, classrooms, or schools—are randomly assigned to participate in the project activities being evaluated or to a control group that does not participate in the project activities being evaluated.
If random assignment is not feasible, the project may use a quasi-experimental design with carefully matched comparison conditions. This alternative design attempts to approximate a randomly assigned control group by matching participants—e.g., students, teachers, classrooms, or schools—with non-participants having similar pre-program characteristics.
In cases where random assignment is not possible and participation in the intervention is determined by a specified cutting point on a quantified continuum of scores, regression discontinuity designs may be employed.
For projects that are focused on special populations in which sufficient numbers of participants are not available to support random assignment or matched comparison group designs, single-subject designs such as multiple baseline or treatment-reversal or interrupted time series that are capable of demonstrating causal relationships can be employed.
Proposed evaluation strategies that use neither experimental designs with random assignment nor quasi-experimental designs using a matched comparison group nor regression discontinuity designs will not be considered responsive to the priority when sufficient numbers of participants are available to support these designs. Evaluation strategies that involve too small a number of participants to support group designs must be capable of demonstrating the causal effects of an intervention or program on those participants.
The proposed evaluation plan must describe how the project evaluator will collect—before the project intervention commences and after it ends—valid and reliable data that measure the impact of participation in the program or in the comparison group.
In determining the quality of the evaluation method, we will consider the extent to which the applicant presents a feasible, credible plan that includes the following:
(1) The type of design to be used (that is, random assignment or matched comparison). If matched comparison, include in the plan a discussion of why random assignment is not feasible.
(2) Outcomes to be measured.
(3) A discussion of how the applicant plans to assign students, teachers, classrooms, or schools to the project and control group or match them for comparison with other students, teachers, classrooms, or schools.
(4) A proposed evaluator, preferably independent, with the necessary background and technical expertise to carry out the proposed evaluation. An independent evaluator does not have any authority over the project and is not involved in its implementation.
As used in this invitational priority—
(A) Means research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs; and
(B) Includes research that—
(i) Employs systematic, empirical methods that draw on observation or experiment;
(ii) Involves rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions drawn;
(iii) Relies on measurements or observational methods that provide reliable and valid data across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators;
(iv) Is evaluated using experimental or quasi-experimental designs in which individuals, entities, programs, or activities are assigned to different conditions and with appropriate controls to evaluate the effects of the condition of interest, with a preference for random-assignment experiments, or other designs to the extent that those designs contain within-condition or across-condition controls;
(v) Ensures that experimental studies are presented in sufficient detail and clarity to allow for replication or, at a minimum, offer the opportunity to build systematically on their findings; and
(vi) Has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.
Applicants who are planning to respond to this invitational priority are strongly encouraged to review the following technical assistance resources:
(1) Random Assignment in Program Evaluation, Qs and As:
(2) How to Report the Results of Your Study: A User-Friendly Guide for Evaluators of Educational Programs and Practices:
(3) Key Items to Get Right When Conducting a Randomized Control Trial in Education:
20 U.S.C. 7231-7231j.
The Department is not bound by any estimates in this notice.
1.
2.
3.
Under the MSAP regulations, applicants are required to provide all of the information required in 34 CFR 280.20(a) through (g) in order to satisfy the civil rights eligibility requirements found in 34 CFR 280.2(a)(2) and (b).
In addition to the particular data and other items for required and voluntary plans described in the application package, an application must include—
• Signed civil rights assurances (included in the application package);
• A copy of the applicant's plan; and
• An assurance that the plan is being implemented or will be implemented if the application is funded.
1.
• A Federal or State court order that establishes or amends a previous order or orders by establishing additional or different specific magnet schools;
• A Federal or State court order that requires or approves the establishment of one or more unspecified magnet schools or that authorizes the inclusion of magnet schools at the discretion of the applicant.
2.
3.
4.
An applicant should indicate in its application if it is seeking to modify its previously approved plan. However, all applicants must submit proof of approval of all modifications to their plans to ED by June 1, 2007. Proof of plan modifications should be mailed to the person and address identified in
A voluntary plan must be approved by ED each time an application is submitted for funding. Even if ED has approved a voluntary plan in an LEA in the past, the plan must be resubmitted for approval as part of the application.
The enrollment and other information as required by the regulations in 34 CFR 280.20(f) and (g) for applicants with voluntary plans (specific requirements are detailed in the application package) are critical to our determination of an applicant's eligibility under a voluntary plan.
The purposes of the MSAP include the reduction, elimination, or prevention of minority group isolation. All voluntary plans proposed in an LEA's application must be adequate under Title VI. The Department believes that LEAs submitting voluntary plans can achieve the statutory purposes of reducing, eliminating, or preventing minority group isolation using race-neutral admissions practices. The United States Supreme Court is expected to provide additional guidance about the use of race in voluntary plans in two cases prior to the award of FY 2007 grants. The Department will examine the implications of those decisions on the MSAP program when making FY 2007 awards.
1.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the program contact person listed in this section.
2.
Applicants that fail to provide this e-mail notification may still apply for funding.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12-point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances, certifications, the desegregation plan and related information, and the forms used to respond to Competitive Preference Priority 2—New or revised magnet schools projects and Competitive Preference Priority 3—
Our reviewers will not read any pages of your application that—
• Exceed the page limit if you apply these standards; or
• Exceed the equivalent of the page limit if you apply other standards.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Magnet Schools Assistance Program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted, and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed elsewhere in this notice under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Joan Scott-Ambrosio, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W225, Washington, DC 20202-5970. Fax: (202) 205-5630.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
The maximum score for all the selection criteria is 100 points. The maximum score for each criterion is included in parentheses. Each criterion also includes the factors that reviewers will consider in determining whether an application meets the criterion.
Points awarded under these selection criteria are in addition to any points an applicant earns under the competitive preference priorities in this notice. The maximum score an application may receive based on the priority points and the selection criteria is 140 points.
(a)
(1) The Secretary reviews each application to determine the quality of the plan of operation for the project.
(2) The Secretary determines the extent to which the applicant demonstrates—
(i) The effectiveness of its management plan to ensure proper and efficient administration of the project;
(ii) The effectiveness of its plan to attain specific outcomes that—
(A) Will accomplish the purposes of the program;
(B) Are attainable within the project period;
(C) Are measurable and quantifiable; and
(D) For multi-year projects, can be used to determine the project's progress in meeting its intended outcomes;
(iii) The effectiveness of its plan for utilizing its resources and personnel to achieve the objectives of the project, including how well it utilizes key personnel to complete tasks and achieve the objectives of the project;
(iv) How it will ensure equal access and treatment for eligible project participants who have been traditionally underrepresented in courses or activities offered as part of the magnet school, e.g., women and girls in mathematics, science, or technology courses, and disabled students; and
(v) The effectiveness of its plan to recruit students from different social, economic, ethnic, and racial backgrounds into the magnet schools.
(b)
(1) The Secretary reviews each application to determine the qualifications of the personnel the applicant plans to use on the project.
(2) The Secretary determines the extent to which—
(i) The project director (if one is used) is qualified to manage the project;
(ii) Other key personnel are qualified to manage the project;
(iii) Teachers who will provide instruction in participating magnet schools are qualified to implement the special curriculum of the magnet schools; and
(iv) The applicant, as part of its nondiscriminatory employment practices will ensure that its personnel are selected for employment without regard to race, religion, color, national origin, sex, age, or disability.
(3) To determine personnel qualifications, the Secretary considers experience and training in fields related to the objectives of the project, including the key personnel's knowledge of and experience in curriculum development and desegregation strategies.
(c)
(1) The Secretary reviews each application to determine the quality of the project design based on sections 5305(b)(1)(A), 5305(b)(1)(B), 5305(b)(1)(D)(i), 5305(b)(2)(D) and 5307(b) of the ESEA.
(2) The Secretary determines the extent to which each magnet school for which funding is sought will—
(i) Promote desegregation, including how each proposed magnet school program will increase interaction among students of different social, economic, ethnic, and racial backgrounds;
(ii) Improve student academic achievement for all students attending each magnet school program, including the manner and extent to which each magnet school program will increase student academic achievement in the instructional area or areas offered by the school;
(iii) Implement high-quality activities that are directly related to improving student academic achievement based on the State's academic content standards and academic achievement standards or directly related to improving students' reading skills or knowledge of mathematics, science, history, geography, English, foreign languages, art, or music, or to improving vocational, technological, and professional skills; and
(iv) Encourage greater parental decisionmaking and involvement.
(d)
(1) The adequacy of the facilities that the applicant plans to use;
(2) The adequacy of the equipment and supplies that the applicant plans to use; and
(3) The adequacy and reasonableness of the budget for the project in relation to the objectives of the project.
(e)
(1) Includes methods that are appropriate to the project;
(2) Will determine how successful the project is in meeting its intended outcomes, including its goals for desegregating its students and increasing student achievement; and
(3) Includes methods that are objective and that will produce data that are quantifiable.
(f)
(1) The Secretary reviews each application to determine whether the applicant is likely to continue the magnet school activities after assistance under the regulations is no longer available.
(2) The Secretary determines the extent to which the applicant—
(i) Is committed to the magnet schools project; and
(ii) Has identified other resources to continue support for the magnet school activities when assistance under this program is no longer available.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(a) The percentage of magnet schools whose student applicant pool reflects a racial and ethnic composition that, in relation to the total enrollment of the school, reduces, eliminates or prevents minority group isolation. The Secretary has set an overall performance target that calls for the percentage of magnet schools whose student applicant pool would have a beneficial effect on the reduction, prevention or elimination of minority group isolation in participating project schools to increase annually from a baseline established with magnet school applicant data from the first year of the project.
(b) The percentage of magnet schools whose students from major racial and ethnic groups meet or exceed their State's adequate yearly progress standard, in accordance with their State's plan required by section 1111 of the ESEA. The Secretary has set an overall performance target that calls for the percentage of magnet schools whose students meet or exceed the adequate yearly progress standard to increase annually from a baseline established by participating schools' performance in the school year prior to the beginning of the project.
(c) The percentage of magnet schools that receive assistance and that are still operating magnet school programs three years after Federal funding ends and the percentage of magnet schools that received assistance that meet State standards at least three years after Federal funding ends. The Secretary has set an overall performance target that calls for the percentage of magnet schools that are in operation and meet or exceed State standards three years after Federal funding ends to increase annually from a baseline established three years after Federal funding ceases.
Steven L. Brockhouse, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W229, Washington, DC 20202-5970.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the program contact person listed in this section.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Office of Innovation and Improvement, Department of Education.
Notice of final priority.
The Assistant Deputy Secretary for Innovation and Improvement announces a priority under the Magnet Schools Assistance Program (MSAP). The Assistant Deputy Secretary may use this priority for competitions in fiscal year (FY) 2007 and later years. We intend this priority to encourage eligible applicants to focus on expanding their capacity to provide public school choice by using magnet schools to provide public school choice options to parents whose children attend schools that have been identified for school improvement, corrective action, or restructuring under Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA).
Steven L. Brockhouse, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W229, Washington, DC 20202-5970.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under
The MSAP provides grants to eligible local educational agencies (LEAs) and consortia of LEAs to support magnet schools that are part of an approved desegregation plan. For the purpose of the MSAP, a magnet school is a public elementary school, public secondary school, public elementary education center, or public secondary education center that offers a special curriculum capable of attracting substantial numbers of students of different racial backgrounds.
Through the implementation of magnet schools, MSAP resources support objectives and activities that enable all elementary and secondary students to achieve to high standards, hold schools and LEAs accountable for ensuring they do so, and help schools and LEAs develop and design innovative educational methods and practices that support desegregation efforts to eliminate, reduce, or prevent minority group isolation and increase choices in public elementary and secondary schools.
Consistent with the statutory purpose of the MSAP, magnet schools are designed to eliminate, reduce, or prevent minority group isolation in schools with substantial numbers or percentages of minority group students, bring students of different backgrounds together, assist LEAs in achieving systemic reforms, provide all students the opportunity to meet challenging State content standards and challenging State performance standards, and increase choices in public elementary and secondary schools.
The priority, Expanding Capacity to Provide Choice, provides eligible LEAs with an opportunity to continue to use magnet schools, consistent with their desegregation plan objectives for the elimination, reduction, or prevention of
The priority provides eligible applicants the flexibility to use either or both of two approaches to expanding their capacity to provide public school choice.
First, an eligible applicant could convert one or more schools identified for improvement, corrective action, or restructuring under Title I to magnet schools in order to improve the quality of teaching and instruction in these schools. Using this approach, conversion of a school to a magnet school would benefit students already attending the school by offering a magnet curriculum that would include subject matter or teaching methodology that is generally not available at other schools in the LEA and would be more challenging and innovative than the curricular program that the school had previously provided. The implementation of the magnet curriculum, along with resources such as equipment, supplies and staff development to support the implementation of the magnet curriculum, would also help the school reduce, eliminate, or prevent minority group isolation at the magnet school and/or at the sending schools by attracting other students, including higher-achieving students of different backgrounds, based on their interest in a curricular program that would not be available to them in the schools that they would otherwise attend.
Second, an eligible applicant could use higher-performing schools as magnet schools and, by doing so, significantly increase the opportunity for students attending schools identified for school improvement, corrective action, or restructuring to participate in public school choice by attending a higher-performing school. Using this approach, an eligible applicant would need to ensure that the magnet school would have sufficient space available to accommodate students who would likely be interested in transferring from schools identified for school improvement, corrective action, or restructuring. Additionally, the LEA would need to show how the enrollment of the magnet and/or sending schools (i.e., the schools identified for school improvement, corrective action, or restructuring from which students would transfer) would change in a manner that resulted in the elimination, reduction, or prevention of minority group isolation in those sending schools.
Under either approach, an applicant would be required to show how it would effectively inform parents whose children attend schools identified for school improvement, corrective action, or restructuring about the new choices made available to them in the magnet schools to be funded under the project.
We published a notice of proposed priority for this program in the
There are no differences between the notice of proposed priority and this notice of final priority.
In the notice of proposed priority, we invited comments on the proposed priority. We did not receive any comments.
This notice does not solicit applications. In any year in which we choose to use this priority, we invite applications through a notice in the
This priority supports projects that will—
(1) Help parents whose children attend low-performing schools (that is, schools that have been identified for school improvement, corrective action, or restructuring under Title I of the Elementary and Secondary Education Act of 1965, as amended) by—
(a) Selecting schools identified for school improvement, corrective action, or restructuring under Title I as magnet schools to be funded under this project and improving the quality of teaching and instruction in these schools; or
(b) Maximizing the opportunity for students in low-performing schools to attend higher-performing magnet schools funded under the project and thereby reduce minority group isolation in the low-performing sending schools; and
(2) Effectively inform parents whose children attend low-performing schools about choices that are available to them in the magnet schools to be funded under the project.
For the purpose of selecting applications under this priority,
This notice of final priority has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the notice of final priority are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of final priority, we have determined that the benefits of the final priority justify the costs.
We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
The benefit of the final priority is that it will help applicants prepare high-quality proposals that expand their capacity to provide public school choice to parents whose children attend schools that have not made adequate yearly progress.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
You may also view this document in text or PDF at the following site:
The official version of this document is the document published in the
20 U.S.C. 7231-7231j.
The Department is not bound by any estimates in this notice.
This priority is:
(1) Students who participate in the school's athletic program;
(2) Students who are engaged in competitive, extracurricular, school-sponsored activities; and
(3) A voluntary drug-testing program for students who, along with their parent or guardian, have provided written consent to participate in a random drug-testing program. Applicants that propose voluntary drug testing for students who, along with their parent or guardian, provide written consent, must not prohibit students who do not consent from participating in school or extracurricular activities.
(1) Applicants may not submit more than one application for an award under this program.
(2) Eligibility under this grant competition is limited to applicants that do not currently have an active grant under the Department of Education's School-Based Student Drug-Testing Program (CFDA 84.184D). For the purpose of this requirement, a grant is considered active until the end of the grant's project or funding period, including any extensions of those periods that extend the grantee's authority to obligate funds.
(3) Non-LEA applicants must submit a letter of agreement to participate from an LEA. The letter must be signed by the applicant and an authorized representative of the LEA. Letters of support are not acceptable as evidence of the required agreement.
(4) Funds may not be used for the following purposes:
(a) Student drug tests administered under suspicion of drug use;
(b) Incentives for students to participate in programs;
(c) Drug treatment; or
(d) Drug prevention curricula or other prevention programs.
(5) Applicants must:
(a) Identify a target population and demonstrate a significant need for drug testing within the target population;
(b) Explain how the proposed drug-testing program will be part of an existing, comprehensive drug prevention program in the schools to be served;
(c) Provide a comprehensive plan for referring students who are identified as drug users through the testing program to a student assistance program, counseling, or drug treatment if necessary;
(d) Provide a plan to ensure the confidentiality of drug-testing results, including a provision that prohibits the party conducting drug tests from disclosing to school officials any information about a student's use of legal medications;
(e) Limit the cost of site-based evaluations to no more than 10 percent of total funds requested; and
(f) Provide written assurances of the following:
(i) That results of student drug tests will not be disclosed to law enforcement officials;
(ii) That results of student drug tests will be destroyed when the student graduates or otherwise leaves the LEA or private school involved;
(iii) That all positive drug tests will be reviewed by a certified medical review officer;
(iv) That legal counsel has reviewed the proposed program and advised that the program activities do not appear to violate established constitutional principles or State and Federal requirements related to implementing a student drug-testing program; and
(v) That all proposed activities will be carried out in accordance with the requirements of the Family Educational Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment (PPRA).
20 U.S.C. 7131.
The regulations in part 79 apply to all applicants except Federally recognized Indian tribes.
The regulations in part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice.
1.
2.
3.
(a)
(b)
(c)
1.
You may also contact ED Pubs at its Web site:
You may also access the electronic version of the application at the following Web sites:
If you request an application from ED Pubs be sure to identify this competition as follows: CFDA number 84.184D.
Individuals with disabilities may obtain a copy of the application in an alternative format (
2.
3.
Applications for grants under this competition may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the persons listed under
4.
5.
6.
a.
If you choose to submit your application electronically, you must use the Governmentwide Grants.gov Apply site at
You may access the electronic grant application for School-Based Student Drug-Testing Programs at
Please note the following:
• Your participation in Grants.gov is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• If you submit your application electronically, you must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• If you submit your application electronically, you must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
•
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed elsewhere in this notice under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
b.
or
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive the notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
These measures constitute the Department's indicator of success for this program. Consequently, applicants for a grant under this program are advised to give careful consideration to these measures in conceptualizing the approach and evaluation for their proposed project. If funded, applicants will be asked to collect and report data in their annual performance and final reports about progress toward these measures.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
You may also view this document in text or PDF at the following site:
The official version of this document is the document published in the
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before May 8, 2007.
Comments may be submitted electronically, by mail, or through hand delivery/courier service. Follow the detailed instructions as provided under
The contact individuals for each ICR are listed under
EPA has established a public docket for the ICRs listed in the
Use
Submit your comments by one of the following methods:
1.
2.
3.
4.
5.
Direct your comments to the specific docket listed in
Pursuant to section 3506(c)(2)(A) of the Paperwork Reduction Act (PRA), EPA is soliciting comments and information to enable it to:
(1) Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.
(2) Evaluate the accuracy of the Agency's estimates of the burdens of the proposed collections of information.
(3) Enhance the quality, utility, and clarity of the information to be collected.
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated or electronic collection technologies or other forms of information technology, e.g., permitting electronic submission of responses.
You may find the following suggestions helpful for preparing comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under DATES.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
The Agency computed the burden for each of the recordkeeping and reporting requirements applicable to the industry for the currently approved ICRs listed in this notice. Where applicable, the Agency identified specific tasks and made assumptions, while being consistent with the concept of the PRA.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions to; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
The listed ICRs address Clean Air Act information collection requirements in standards (
In the absence of such information collection requirements, enforcement personnel would be unable to determine whether the standards are being met on a continuous basis as required by the Clean Air Act.
An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the Agency displays a currently valid OMB control number. The OMB control numbers for EPA's regulations under Title 40 of the Code of Federal Regulations are published in the
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(1) NSPS for Electric Utility Steam Generating Units (40 CFR Part 60, Subpart Da); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(2) NSPS for VOC Emissions From Petroleum Refinery Wastewater System (40 CFR Part 60, Subpart QQQ); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(3) NSPS for Phosphate Rock Plants (40 CFR Part 60, Subpart NN); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(4) NSPS for Small Industrial-Commercial-Institutional Steam Generating Units (40 CFR Part 60, Subpart Dc); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(5) NSPS for Rubber Tire Manufacturing (40 CFR Part 60, Subpart BBB); contact María Malavé of the Office of Compliance at (202) 564-7027 or via e-mail to:
(6) NSPS for Onshore Natural Gas Processing Plants (40 CFR Part 60, Subparts KKK & LLL); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(7) NESHAP for Beryllium (40 CFR Part 61, Subpart C); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(8) NSPS for Hospital/Medical/Infectious Waste Incinerators (40 CFR Part 60, Subpart Ec); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(9) NESHAP for Benzene Emissions From Coke By-Product Recovery Plants (40 CFR Part 61, Subpart L); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(10) NSPS for Asphalt Processing and Roofing Manufacture (40 CFR Part 60, Subpart UU); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(11) NSPS for Portland Cement Plants (40 CFR Part 60, Subpart F); Leonard Lazarus of the Office of Compliance at (202) 564-6369 or via e-mail to:
(12) NESHAP for Epoxy Resin and Non-Nylon Polyamide Production (40 CFR Part 63, Subpart W); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(13) NESHAP for Primary Aluminum Reduction Plants (40 CFR Part 63, Subpart L); contact María Malavé of the Office of Compliance at (202) 564-7027 or via e-mail to:
(14) NSPS for Polymeric Coating of Supporting Substrates Facilities (40 CFR Part 60, Subpart VVV); Leonard Lazarus of the Office of Compliance at (202) 564-6369 or via e-mail to:
(15) NESHAP for Beryllium Rocket Motor Fuel Firing (40 CFR Part 61, Subpart D); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(16) NESHAP for Vinyl Chloride (40 CFR Part 61, Subpart F); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(17) NESHAP for Pulp and Paper Production (40 CFR Part 63, Subpart S); Leonard Lazarus of the Office of Compliance at (202) 564-6369 or via e-mail to:
(18) NESHAP for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills (40 CFR Part 63, Subpart MM); Leonard Lazarus of the Office of Compliance at (202) 564-6369 or via e-mail to:
(19) Standards of Performance for New and Existing Stationary Sources: Utility Steam Generating Units (40 CFR Part 60, Subparts Da and HHHH); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(20) NESHAP for Petroleum Refineries (40 CFR Part 63, Subpart CC); contact María Malavé of the Office of Compliance at (202) 564-7027 or via e-mail to:
(21) NSPS for Municipal Waste Combustors (40 CFR Part 60, Subparts Ea and Eb); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(22) NESHAP for Pesticide Active Ingredient Production (40 CFR Part 63, Subpart MMM); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(23) NESHAP for Marine Tank Vessel Loading Operations (40 CFR Part 63, Subpart Y); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(24) NESHAP for Solvent Extraction for Vegetable Oil Production (40 CFR Part 63, Subpart GGGG); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(25) NESHAP for Engine Test Cells/Stands (40 CFR Part 63, Subpart PPPPP); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(26) NESHAP for Friction Materials Manufacturing (40 CFR Part 63, Subpart QQQQQ); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(27) NESHAP for Cellulose Products Manufacturing (40 CFR Part 63, Subpart UUUU); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(28) NESHAP for Ferroalloys Production: Ferromanganese and Silconmanganese (40 CFR Part 63, Subpart XXX); contact María Malavé of the Office of Compliance at (202) 564-7027 or via e-mail to:
(29) NESHAP for Primary Copper Smelters (40 CFR Part 63, Subpart QQQ); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(30) NESHAP for Leather Finishing Operations (40 CFR Part 63, Subpart TTTT); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(31) NESHAP for Metal Coil Surface Coating Plants (40 CFR Part 63, Subpart SSSS); Learia Williams of the Office of Compliance at (202) 564-4113; or via e-mail to:
(1) NSPS for Electric Utility Steam Generating Units (40 CFR Part 60, Subpart Da), Docket ID Number EPA-HQ-OECA-2007-0043, EPA ICR Number 1053.09, OMB Control Number 2060-0023, expiration date October 31, 2007.
The affected entities are subject to the General Provisions of NSPS at 40 CFR part 60, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 60, subpart Da.
Owners or operators of the affected facilities must make an initial notification, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually and quarterly.
(2) NSPS for VOC Emissions from Petroleum Refinery Wastewater System (40 CFR Part 60, Subpart QQQ), Docket ID Number EPA-HQ-OECA-2007-0044, EPA ICR Number 1136.09, OMB Control Number 2060-0172, expiration date October 31, 2007.
The affected entities are subject to the General Provisions of NSPS at 40 CFR part 60, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 60, subpart QQQ.
Owners or operators of the affected facilities must make an initial notification, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually.
(3) NSPS for Phosphate Rock Plants (40 CFR Part 60, Subpart NN), Docket ID Number EPA-HQ-OECA-2007-0045, EPA ICR Number 1078.08, OMB Control Number 2060-0111, expiration date November 30, 2007.
The affected entities are subject to the General Provisions of NSPS at 40 CFR part 60, subpart AA, and any changes, or additions to the General Provisions specified at 40 CFR part 60, subpart NN.
Owners or operators of the affected facilities must make an initial notification, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually.
(4) NSPS for Small Industrial-Commercial-Institutional Steam Generating Units (40 CFR Part 60, Subpart Dc), Docket ID Number EPA-HQ-OECA-2007-0046, EPA ICR Number 1564.07, OMB Control Number 2060-0202, expiration date November 30, 2007.
The affected entities are subject to the General Provisions of NSPS at 40 CFR part 60, subpart A and any changes, or additions to the General Provisions specified at 40 CFR part 60, subpart Dc.
Owners or operators of the affected facilities must make an initial notification, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually.
(5) NSPS for Rubber Tire Manufacturing (40 CFR Part 60, Subpart BBB); Docket ID Number EPA-HQ-OECA-2007-0125; EPA ICR Number 1158.09; OMB Control Number 2060-0156; expiration date November 11, 2007.
The affected entities are subject to the General Provisions of the New Source Performance Standards (NSPS) at 40 CFR part 60, subpart A and any changes, or additions to the General Provisions specified at 40 CFR part 60, subpart BBB. Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
(6) NSPS for Onshore Natural Gas Processing Plants (40 CFR Part 60, Subparts KKK & LLL), Docket ID Number EPA-HQ7-OECA-2007-0047, EPA ICR Number 1086.08, OMB Control Number 2060-0120, expiration date December 31, 2007.
The affected entities are subject to the General Provisions of NSPS at 40 CFR part 60, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 60, Subparts KKK and LLL.
Owners or operators of the affected facilities must make an initial notification, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually.
(7) NESHAP for Beryllium (40 CFR Part 61, Subpart C), Docket ID Number EPA-HQ-OECA-2007-0048, EPA ICR Number 0193.09, OMB Control Number 2060-0092, expiration date December 31, 2007.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 61, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 61, subpart C.
Owners or operators of the affected facilities must make a one-time-only notification including: notification of any physical or operational change to an existing facility, notification of the initial performance test, and performance test measurements and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required on a monthly basis.
(8) NSPS for Hospital/Medical/Infectious Waste Incinerators (40 CFR Part 60, Subpart Ec), Docket ID Number EPA-HQ-OECA-2007-0049, EPA ICR Number 1730.05, OMB Control Number 2060-0363, expiration date December 31, 2007.
The affected entities are subject to the General Provisions of NSPS at 40 CFR part 60, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 60, subpart Ec.
Owners or operators of the affected facilities must make an initial notification, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually.
(9) NESHAP for Benzene Emissions from Coke By-Product Recovery Plants (40 CFR Part 61, Subpart L), Docket ID Number EPA-HQ-OECA-2007-0050, EPA ICR Number 1080.12, OMB Control Number 2060-0185, expiration date December 31, 2007.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 61, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 61, subpart L.
Owners or operators of the affected facilities must submit initial notifications, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually.
(10) NSPS for Asphalt Processing and Roofing Manufacture (40 CFR Part 60, Subpart UU), Docket ID Number EPA-HQ-OECA-2007-0051, EPA ICR Number 0661.09, OMB Control Number 2060-0002, expiration date January 31, 2008.
The affected entities are subject to the General Provisions of NSPS at 40 CFR part 60, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 60, subpart UU.
Owners or operators of the affected facilities must make an initial notification, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative.
(11) NSPS for Portland Cement Plants (40 CFR Part 60, Subpart F), EPA-HQ-OECA-2007-0032, EPA ICR Number 1051.10, OMB Control Number 2060-0025, expiration date January 31, 2008.
(12) NESHAP for Epoxy Resin and Non-Nylon Polyamide Production (40 CFR Part 63, Subpart W), Docket ID Number EPA-HQ-OECA-2007-0052, EPA ICR Number 1681.06, OMB Control Number 2060-0290, expiration date February 29, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart W.
Owners or operators of the affected facilities must submit a one-time-only of any physical or operational changes, initial performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually.
(13) NESHAP for Primary Aluminum Reduction Plants (40 CFR Part 63, Subpart L); Docket ID Number EPA-HQ-OECA-2007-0127; EPA ICR Number 1767.05; OMB Control Number 2060-0360; expiration date February 29, 2008.
The affected entities are subject to the General Provisions of the New Source Performance Standards (NSPS) at 40 CFR part 63, subpart A and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart L. Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
(14) NSPS for Polymeric Coating of Supporting Substrates Facilities (40 CFR Part 60, Subpart VVV), EPA-HQ-OECA-2007-0033, EPA ICR Number 1284.08, OMB Control Number 2060-0181, expiration date March 31, 2008.
(15) NESHAP for Beryllium Rocket Motor Firing (40 CFR Part 61, Subpart D), Docket ID Number EPA-HQ-OECA-2007-0053, EPA ICR Number 1125.05, OMB Control Number 2060-0394, expiration date April 30, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 61, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 61, subpart D.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative.
(16) NESHAP for Vinyl Chloride (40 CFR Part 61, Subpart F), Docket ID Number EPA-HQ-OECA-2007-0054, EPA ICR Number 0186.11, OMB Control Number 2060-0071, expiration date April 30, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 61, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 61, subpart F.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative.
(17) NESHAP for Pulp and Paper Production (40 CFR Part 63, Subpart S), EPA-HQ-OECA-2007-0034, EPA ICR Number 1657.06, OMB Control Number 2060-0387, expiration date April 30, 2008.
Pulp mill owners/operators are required to submit initial notifications, maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected source, or any period during which the emission monitoring system is inoperative. Respondents are required to monitor and keep records of specific operating parameters for each control device and to perform and document periodic inspections of the closed vent and wastewater conveyance systems.
All respondents must submit semiannual reports of the monitored parameters. They must also submit an additional monitoring report during each quarter in which monitored parameters were outside the ranges established in the standard or during initial performance tests.
(18) NESHAP for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills (40 CFR Part 63, Subpart MM), EPA-HQ-OECA-2007-0035, ICR Number 1805.05, OMB Control Number 2060-0377, expiration date April 30, 2008.
(19) Standards of Performance for New and Existing Stationary Sources: Utility Steam Generating Units (40 CFR Part 60, Subparts Da and HHHH), Docket ID Number EPA-HQ-OECA-2007-0055, EPA ICR Number 2137.03, OMB Control Number 2060-0567, expiration date April 30, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 60, subpart A, and any changes, or addition to the General Provisions specified at 40 CFR part 60, subparts Da and HHHH.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative.
(20) NESHAP for Petroleum Refineries (40 CFR Part 63, Subpart CC); Docket ID Number EPA-HQ-OECA-2007-0126; EPA ICR Number 1692.06; OMB Control Number 2060-0340; expiration date April 30, 2008.
The affected entities are subject to the General Provisions of the National Emission Standards for Hazardous Air Pollutants for (NESHAP) at 40 CFR part 63, subpart A and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart CC. In general, all NESHAP standards require initial notifications, performance tests, and periodic reports. In addition, respondents are required to comply with applicable recordkeeping and reporting requirements under other rules including: 1) equipment leaks requirements in either 40 CFR part 61, subpart VV or 40 CFR part 63, subpart H (i.e., an initial report and semiannual summary report of leak detection and repair); 2) wastewater operations requirements in 40 CFR part 61, subpart FF; gasoline loading racks requirements in 40 CFR part 63, subpart R; and marine tank vessel loading operations requirements in 40 CFR part 63, subpart Y.
(21) NSPS for Municipal Waste Combustors (40 CFR Part 60, Subparts Ea and Eb), Docket ID Number EPA-HQ-OECA-2007-0056, EPA ICR Number 1506.11, OMB Control Number 2060-0210, expiration date April 30, 2008.
The affected entities are subject to the General Provisions of NSPS at 40 CFR part 60, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 60, Subparts Ea and Eb.
Owners or operators of the affected facilities must make an initial notification, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative.
(22) NESHAP for Pesticide Active Ingredient Production (40 CFR Part 63, Subpart MMM), Docket ID Number EPA-HQ-OECA-2007-0057, EPA ICR Number 1807.04, OMB Control Number 2060-0370, expiration date June 30, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart MMM.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
(23) NESHAP for Marine Tank Vessel Loading Operations (40 CFR Part 63, Subpart Y), Docket ID Number EPA-HQ-OECA-2007-0058, EPA ICR Number 1679.06, OMB Control Number 2060-0289, expiration date July 31, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart Y.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
(24) NESHAP for Solvent Extraction for Vegetable Oil Production (40 CFR Part 63, Subpart GGGG), Docket ID Number EPA-HQ-OECA-2007-0059, EPA ICR Number 1947.04, OMB Control Number 2060-0471, expiration date July 31, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart GGGG.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
(25) NESHAP for Engine Test Cells/Stands (40 CFR Part 63, Subpart PPPPP), Docket ID Number EPA-HQ-OECA-2007-0060, EPA ICR Number 2066.04, OMB Control Number 2060-0483, expiration date July 31, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart PPPPP.
Owners or operators of the affected facilities must submit initial notification, performance tests, and
(26) NESHAP for Friction Materials Manufacturing (40 CFR Part 63, Subpart QQQQQ), Docket ID Number EPA-HQ-OECA-2007-0061, EPA ICR Number 2025.04, OMB Control Number 2060-0481, expiration date July 31, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart QQQQQ.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
(27) NESHAP for Cellulose Products Manufacturing (40 CFR Part 63, Subpart UUUU), Docket ID Number EPA-HQ-OECA-2007-0062, EPA ICR Number 1974.05, OMB Control Number 2060-0488, expiration date July 31, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart UUUU.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
(28) NESHAP for Ferroalloys Production: Ferromanganese and Silconmanganese (40 CFR Part 63, Subpart XXX); Docket ID Number EPA-HQ-OECA-2007-0128; EPA ICR Number 1831.04; OMB Control Number 2060-0391; expiration date September 30, 2008.
The affected entities are subject to the General Provisions of the National Emission Standards for Hazardous Air Pollutants at 40 CFR part 63, subpart A and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart XXX Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
(29) NESHAP for Primary Copper Smelters (40 CFR Part 63, Subpart
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart QQQ, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart QQQ.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
(30) NESHAP for Leather Finishing Operations (40 CFR Part 63, Subpart TTTT), Docket ID Number EPA-HQ-OECA-2007-0064, EPA ICR Number 1985.04, OMB Control Number 2060-0478, expiration date September 30, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart TTTT.
Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative.
(31) NESHAP for Metal Coil Surface Coating Plants (40 CFR Part 63, Subpart SSSS), Docket ID Number EPA-HQ-OECA-2007-0065, EPA ICR Number 1957.05, OMB Control Number 2060-0487, expiration date September 30, 2008.
The affected entities are subject to the General Provisions of NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the General Provisions specified at 40 CFR part 63, subpart SSSS.
Owners or operators of the affected facilities must submit one-time notification, one-time report on compliance status and performance test results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Semiannual reports are also required.
EPA will consider any comments received and may amend any of the above ICRs, as appropriate. Then the final ICR packages will be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue one or more
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167. An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 7, 2006 (71 FR 17845).
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an application 75624-EUP-E from The Acta Group, on behalf of Circle One Global, Inc., requesting an experimental use permit (EUP) for
Comments must be received on or before April 9, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0118 by one of the following methods:
•
•
•
Shanaz Bacchus, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8097; e-mail address:
This action is directed to the public in general. This action may, however, be of interest to to those persons who are interested in agricultural biotechnology or may be required to conduct testing of pesticidal substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
The Acta Group, 1203 Nineteenth St., NW. Washington DC 20036-2401, on behalf of Circle One Global, Inc., P.O. Box 28, Shellman, GA 39886-0028 proposes to treat corn in Texas. The registrant plans to use the conditionally registered microbial pesticide containing
Following the review of The Acta Group application and any comments and data received in response to this notice, EPA will decide whether to issue or deny the EUP request for this EUP program, and if issued, the conditions under which it is to be conducted. Any issuance of an EUP will be announced in the
The Agency is authorized to take this action under FIFRA section 5.
Environmental protection, Experimental use permits.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an application 71693-EUP-R from Interregional Research Project Number 4 (IR-4), on behalf of the Arizona Cotton Research and Protection Council, requesting an experimental use permit (EUP) for
Comments must be received on or before April 9, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0119 by one of the following methods:
•
•
•
Shanaz Bacchus, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8097; e-mail address:
This action is directed to the public in general. This action may, however, be of interest to to those persons who are interested in agricultural biotechnology or may be required to conduct testing of pesticidal substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
IR-4, Rutgers University, 500 College Road East, Suite 201W, Princeton, NJ 08540, on behalf of the Arizona Cotton Research and Protection Council, 3721 East Weir Avenue Phoenix, Arizona 85040-2933 proposes to treat pistachio in California. The registrant plans to use the a conditionally registered microbial pesticide containing
Following the review of the IR-4 application and any comments and data received in response to this notice, EPA will decide whether to issue or deny the EUP request for this EUP program, and if issued, the conditions under which it is to be conducted. Any issuance of an EUP will be announced in the
The Agency is authorized to take this action under FIFRA section 5.
Environmental protection, Experimental use permits.
Environmental Protection Agency (EPA).
Notice of availability and request for comments.
Notice of availability is hereby given for a 60-day public comment period on the draft National Coastal Condition Report III describing the condition of the Nation's coastal waters. Coastal waters are valuable from both an environmental and economic perspective. These waters are vulnerable to pollution from diverse sources. EPA expects this report will increase public awareness of the extent and seriousness of pollution and advance efforts to protect and restore coastal waters. EPA seeks public input concerning the information in the report, the availability of additional data, and the appropriateness of conclusions drawn from the information presented.
Comments must be received on or before May 8, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2007-0019, by one of the following methods:
Barry Burgan, Ocean and Coastal Protection Division, Office of Water, 4504T, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460,
In 2001, the first National Coastal Condition Report was released, characterizing about 70% of the estuarine resources of the United States. Using available data from 1990-1996, EPA, the National Oceanic and Atmospheric Administration (NOAA), U.S. Geological Survey (USGS), U.S. Fish and Wildlife Service (USFWS), and U.S. Department of Agriculture (USDA) determined that the Nation's estuarine resources were in fair condition and presented this information in the first Report. The second National Coastal Condition Report, released in 2005, described the condition of 100% of the Nation's estuaries in the contiguous 48 states and Puerto Rico. This third edition of the National Coastal Condition Report serves as a continuing foundation for the Nation's efforts to protect, manage, and restore coastal ecosystems. Four Federal agencies (EPA, NOAA, USGS and the USFWS) and several state and regional/local organizations have come together to report on the current condition of the Nation's coasts.
The draft National Coastal Condition Report III describes the condition of coastal waters based on several available data sets from different agencies and areas of the country and summarizes them to present a continuing picture of the condition of coastal waters. Although the data sets presented do not cover all coastal areas (e.g., no data were collected in Alaska other than south central Alaska and the Trust Territories), they do provide a multi-regional assessment of coastal condition in the conterminous United States and Puerto Rico. For example, EPA's National Coastal Assessment is conducting estuarine monitoring in all 23 coastal states and Puerto Rico, accounting for 99.8% of estuarine acreage in the continental U.S. and Puerto Rico. Data from several regional and national programs conducted by NOAA, USGS and the USFWS are included in this assessment of coastal condition. This report serves as a useful tool for analyzing the progress of coastal programs implemented since the first Report and as a benchmark for the future and provides trends in condition over time. This report will be followed in subsequent years by reports focusing on continuing assessments of ecological condition, examinations of the trends in coastal condition, and assessments of more specialized coastal issues.
The draft National Coastal Condition Report III will undergo an external peer review conducted by EPA's Office of Research and Development. The peer review plan, including peer review charge questions, is available on EPA's Science Inventory Web site (
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning the Omega Chemical Site in Whittier, Los Angeles County, California with 12 settling ability to pay parties. The settlement is entered into pursuant to Section 122(h) of CERCLA, 42 U.S.C. 9622(h), and it requires the settling parties to pay approximately $111,000 to the United States Environmental Protection Agency (EPA). The settlement includes a covenant not to sue the settling parties, pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a). For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 75 Hawthorne Street, San Francisco, CA 94105.
Comments must be submitted on or before April 9, 2007.
The proposed settlement is available for public inspection at EPA Region IX, 75 Hawthorne Street, San Francisco, California. A copy of the proposed settlement may be obtained from Steve Berninger, EPA Region IX, 75 Hawthorne Street, ORC-3, San Francisco, CA 94105, telephone number 415-972-3909. Comments should reference the Omega Chemical Superfund Site, Whittier, California and EPA Docket No. 2006-26, and should be addressed to Steve Berninger at the above address.
Steve Berninger, Assistant Regional Counsel (ORC-3), Office of Regional Counsel, U.S. EPA Region IX, 75
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9601
Chat is a gravel-like mine refuse or mine tailings that is generally contaminated with the hazardous substances lead, cadmium and zinc. Approximately 49 million cubic yards of chat, including the St. Joe Pile, pollute the Tar Creek Superfund Site (Site). The Site is located in an approximately 40-square-mile area in northern Ottawa County, Oklahoma. The Site was mined for lead and zinc ore from the late 1800's through the early 1970's, and chat is part of the waste material left behind by the mining and milling activity. EPA has determined that one of the best ways to address contaminated chat piles on the Site is to sell and remove the chat for use in a manner that will not present a threat to human health or to the environment. Sale and removal of the chat will reduce the costs of additional response actions for the Site. The purpose of this Settlement Agreement is to encourage the sale of the chat in the St. Joe Chat Pile, by resolving certain liabilities of those with interests in the chat or in the property containing the chat, thereby helping free the chat for sale.
Under the settlement, settlors (chat owners and property owners) agree to execute an agreement for the sale of the chat pile (if they own an interest in the chat), to provide access, and to refrain from activities that would inhibit sales. The settlement also includes settlors' agreement not to sue the United States regarding any direct or indirect claim for reimbursement from the EPA Hazardous Substance Superfund pursuant to Internal Revenue Code, 26 U.S.C. 9507, through CERCLA Sections 106(b)(2), 111, 112, and 113, any claim under CERCLA Sections 107 or 113, or under any citizen suit provision of CERCLA, 42 U.S.C. 9659, the Resource Conservation and Recovery Act, 42 U.S.C. 6972, the Clean Air Act, 42 U.S.C. 7604, the Clean Water Act, 33 U.S.C. 1365, or any other similar statues or other applicable environmental laws.
In return, subject to reservations and limitations, the United States covenants not to sue or take civil judicial or administrative action against the settlors pursuant to Sections 106 and 107 of CERCLA, 42 U.S.C. 9606, and 9607, or other applicable law, for liability of response actions and/or claims for natural resource damages arising from the sale of the chat.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733.
Comments must be submitted on or before April 9, 2007.
The proposed settlement and additional background information relating to the settlement are available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733. A copy of the proposed settlement may be obtained from Kenneth Talton (6SF-TE), U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733 at (214) 665-7475. Comments should reference the Tar Creek Superfund Site, Ottawa County, Oklahoma, EPA Docket Number 06-12-06 and should be addressed to Kenneth Talton at the address listed above.
James Costello (6RC-S), U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733 at (214) 665-8045.
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory) to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a premanufacture notice (PMN) or an application for a test marketing exemption (TME), and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from December 18, 2006 to February 2, 2007, consists of the PMNs and TMEs, both pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Comments identified by the specific PMN number or TME number, must be received on or before April 9, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2007-0162, by one of the following methods.
•
•
•
Colby Lintner, Regulatory Coordinator, Environmental Assistance Division, Office of Pollution Prevention and Toxics (7408M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 554-1404; e-mail address:
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the premanufacture notices addressed in the action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket number and other identifying information (subject heading,
ii. Follow directions - The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at the estimate.
vi. Provide specific examples to illustrate your concerns, and suggested alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
Section 5 of TSCA requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a PMN or an application for a TME and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from December 18, 2006 to February 2, 2007, consists of the PMNs and TMEs, both pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
This status report identifies the PMNs and TMEs, both pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period. If you are interested in information that is not included in the following tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available.
In Table I of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: the EPA case number assigned to the PMN; the date the PMN was received by EPA; the projected end date for EPA's review of the PMN; the submitting manufacturer; the potential uses identified by the manufacturer in the PMN; and the chemical identity.
In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the TME received:
In Table III of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the Notices of Commencement to manufacture received:
Environmental protection, Chemicals, Premanufacturer notices.
Federal Election Commission.
Notice of filing dates for special election.
Georgia has scheduled a special general election on June 19, 2007, to fill the U.S. House of Representatives seat in the Tenth Congressional District held by the late Representative Charlie Norwood. Under Georgia law, a majority winner in a nonpartisan special election is declared elected. Should no candidate achieve a majority vote, a special runoff election will be held on July 17, 2007, between the top two vote-getters.
Committees participating in the Georgia special elections are required to file pre- and post-election reports. Filing dates for these reports are affected by whether one or two elections are held.
Mr. Kevin R. Salley, Information Division, 999 E Street, NW., Washington, DC 20463; Telephone: (202) 694-1100; Toll Free (800) 424-9530.
All principal campaign committees of candidates who participate in the Georgia Special General and Special Runoff Elections shall file a 12-day Pre-General Report on June 7, 2007; a Pre-Runoff Report on July 5, 2007; and a Post-Runoff Report on August 16, 2007. (See chart below for the closing date for each report).
If only one election is held, all principal campaign committees of candidates in the Special General Election shall file a 12-day Pre-General Report on June 7, 2007; and a Post-General Report on July 19, 2007. (See chart below for the closing date for each report).
Political committees filing on a semiannual basis in 2007 are subject to special election reporting if they make previously undisclosed contributions or expenditures in connection with the Georgia Special General or Special Runoff Elections by the close of books for the applicable report(s). (See chart below for the closing date for each report).
Committees filing monthly that support candidates in the Georgia Special General or Special Runoff Election should continue to file according to the monthly reporting schedule.
Federal Election Commission electioneering communications rules govern television and radio communications that refer to a clearly identified federal candidate and are distributed within 60 days prior to a special general election (including a special general runoff). 11 CFR 100.29. See also 2 U.S.C. 434(f). The statute and regulations require, among other things, that individuals and other groups not registered with the FEC who make electioneering communications costing more than $10,000 in the aggregate in a calendar year disclose that activity to the Commission within 24 hours of the distribution of the communication. See 2 U.S.C. 434(f)(1) and 11 CFR 104.20.
The 60-day electioneering communications period in connection with the Georgia Special General runs from April 20, 2007 through June 19, 2007. The 60-day electioneering communications period in connection with the Georgia Special Runoff runs from May 18, 2007 through July 17, 2007.
Board of Governors of the Federal Reserve System
Background.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act, as per 5 CFR 1320.16, to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board under conditions set forth in 5 CFR 1320 Appendix A.1. Board-approved
The following information collections, which are being handled under this delegated authority, have received initial Board approval and are hereby published for comment. At the end of the comment period, the proposed information collections, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. Whether the proposed collections of information are necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collections, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected; and
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments must be submitted on or before May 8, 2007.
You may submit comments, identified by FR TA-1 (OMB No.7100-00099); FR 4021 (OMB No.7100-0306); FR 1375 (OMB No.7100-0307); FR 2060 (OMB No.7100-0232); FR 4031 (OMB No. 7100-0264); or Reg H-1 (OMB No. 7100-0091) by any of the following methods:
• Agency Web site:
• Federal eRulemaking Portal:
• E-mail: regs.comments@federalreserve.gov. Include docket number in the subject line of the message.
• FAX: 202/452-3819 or 202/452-3102.
• Mail: Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, N.W., Washington, DC 20551.
All public comments are available from the Board's web site at www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper in Room MP-500 of the Board's Martin Building (20th and C Streets, N.W.) between 9 a.m. and 5 p.m. on weekdays.
Additionally, commenters should send a copy of their comments to the OMB Desk Officer by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street, NW., Washington, DC 20503 or by fax to 202-395-6974.
A copy of the proposed form and instructions, the Paperwork Reduction Act Submission, supporting statement, and other documents that will be placed into OMB's public docket files once approved may be requested from the agency clearance officer, whose name appears below.
Michelle Shore, Federal Reserve Board Clearance Officer (202-452-3829), Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551. Telecommunications Device for the Deaf (TDD) users may contact (202-263-4869), Board of Governors of the Federal Reserve System, Washington, DC 20551.
Board of Governors of the Federal Reserve System, March 6, 2007.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 2, 2007.
Board of Governors of the Federal Reserve System, March 5, 2007.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 5, 2007.
In connection with this application, Applicant also has applied to acquire at least 5 percent of the voting shares of M&M Consulting Limited Liability Company, Bangor, Maine, and thereby engage in providing internal audits, loan reviews and regulatory compliance consulting services, generally under one to two year contracts, to New England-based financial institutions, pursuant to sections 225.28(b)(2)(vi) and (b)(9)(i)(A)(1) of Regulation Y, and indirectly acquire Profit Protection LLC, and thereby engage in providing anti-money laundering and bank security seminars/training sessions in Florida and across the country and the publication of banking-related training manuals, pamphlets, video tapes and similar materials, pursuant to section 225.28(b)(9)(i)(A)(1) of Regulation Y.
Board of Governors of the Federal Reserve System, March 6, 2007.
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
The National Institute for Occupational Safety and Health (NIOSH) announces the following availability of opportunity for the public to provide input regarding the draft document, “Explosion Pressure Design Criteria for New Seals in U.S. Mines.”
NIOSH is the Federal agency responsible for conducting research and making recommendations for the prevention of occupational injuries and illnesses, including those occurring in the mining industry. Federal Mine Safety and Health Act, 30 U.S.C. 951.
Seals are dam-like structures constructed in underground coal mines throughout the U.S. to isolate abandoned mining panels or groups of panels from the active workings. Historically, mining regulations required seals to withstand a 140 kPa (20 psi) explosion pressure; however, the 2006 MINER Act requires MSHA to increase this design standard by the end of 2007. This report provides a sound scientific and engineering justification to recommend a three-tiered explosion pressure design criteria for new seals in coal mines in response to the MINER Act. Much of the information contained in this report also applies to existing seals.
A copy of the draft document can be found at:
Comments should be submitted to the NIOSH Docket Office, Robert A. Taft Laboratories, 4676 Columbia Parkway, M/S C-34, Cincinnati, OH 45226, telephone 513/533-8450, fax 513/533-8285,
The document will remain available for comment until March 12, 2007. Comments should reference docket number NIOSH-100 in the subject heading.
All information received in response to this notice will be available for public examination and copying at the NIOSH Docket Office, Room 111, 4676 Columbia Parkway, Cincinnati, Ohio 45226.
Jeffery Kohler, PhD, NIOSH Associate Director for Mining and Construction, 626 Cochrans Mill Road, Pittsburgh, PA 15236, 412-386-6544.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
The data collected will be used for the following additional purposes: (a) Determination of reimbursements rates for renal dialysis treatments, self-dialysis training, and other reasonable and medically necessary services rendered in connection with these treatments; (b) justification of requests for adjustments or exceptions in the reimbursements rates; and, (c) accumulation of data for overall evaluation. Worksheet B, Worksheet C
2.
There are additional benefits associated with payment for services paid under the Medicare fee schedule. Payments made under the Medicare fee schedule for physician services to participating physicians and suppliers are based on 100 percent of the Medicare fee schedule amount, while the Medicare fee schedule payment for physician services by nonparticipating physicians and suppliers is based on 95 percent of the fee schedule amount. Physicians and suppliers who do not participate in Medicare are subject to limits on their actual charges for unassigned claims for physician services. These limits, known as limiting charges, cannot exceed 115 percent of the non-participant fee schedule, which is set at 95 percent of the full fee schedule amount. In addition, if a physician or supplier does not accept assignment on a claim for Medicare payment, the physician or supplier must collect payment from the beneficiary. If the physician or supplier accepts assignment on the claim, Medicare pays its share of the payment directly to the physician or supplier, resulting in faster and more certain payment.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received at the address below, no later than 5 p.m. on May 8, 2007. CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development—B, Attention: William N. Parham, III, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
The evaluation and data collection proposed in this notice are to fulfill the statutory requirement under Section 8, subsection h(1) of the Child and Family Services Improvement Act of 2006, as amended, that the Secretary of the Department of Health and Human Services evaluate outcomes of the MCP program and report to Congress on the findings. The proposed data collections will support a study of the MCP program that measures the program's child outcomes and compares these outcomes in similar programs. The data collection also will provide general information about youth in the program. Finally, the study will include an administrative survey of grantees participating in the study. The proposed study will include baseline and follow-up surveys (to be administered approximately 12 months apart) of youth ages 9-16 in the MCP program and will compare changes in key behaviors for program youth against changes in behaviors of similar youth not enrolled in mentoring programs. By comparing changes for youth in the MCP program against changes for youth not in the program, we will be able to determine if MCP youths' behaviors are closer to the norm for their age group at follow-up than at program intake. If MCP youths' behaviors and outcomes are shown to improve relative to other groups, the MCP program has
The youth surveys will focus on measuring both attitudinal and behavioral changes in areas targeted by the MCP program including attitudes towards and performance in school; relationships with parents, peers and teachers; self-esteem; and engagement in a variety of risk behaviors, including alcohol and drug use and physical violence. They also will include questions about the living situations of youth in the study, their relationships with both incarcerated and non-incarcerated caregivers, and their relationships with other supportive adults in their communities.
The administrative survey of grantees will include questions about the programmatic structure of each grantee. It will provide information about variations in program administration, mentor activities, and youth served.
Annual Burden Estimates:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance for industry (#183) entitled “Guidance for Industry: Animal Drug User Fees; Fees Exceed Costs Waiver/Reduction.” This guidance explains the procedures FDA expects to use to evaluate waiver requests under the fees exceed costs waiver provision of the Animal Drug User Fee Act of 2003 (ADUFA).
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of the guidance document to the Communications Staff (HFV-12), Center for Veterinary Medicine (CVM), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. Submit written comments on the guidance document to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Dave Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6967, e-mail:
In the
ADUFA (Public Law 108-130) amended the Federal Food, Drug, and Cosmetic Act (the act) and requires the FDA to assess and collect user fees for certain applications, products, establishments, and sponsors. It also requires the agency to grant a waiver from or a reduction of those fees in certain circumstances.
This guidance explains the procedures FDA expects to use to evaluate waiver requests under the fees exceed costs waiver provision of ADUFA. These procedures may be modified in the future as FDA gains more experience with waiver requests.
To qualify for waiver consideration, a written request to the agency for a waiver/reduction, including under the fees exceed costs waiver provision, must be submitted no later than 180 days after the fee is due (section 740(i) of the act (21 U.S.C. 379j-12(i))).
This level 1 guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the agency's current thinking on the topic. The document does not create or confer any rights for or on any person and does not operate to bind FDA or the public. Alternative approaches may be used as long as they satisfy the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information found in Guidance for Industry #170. These collections of information are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and have been approved under OMB Control No. 0910-0540.
Interested persons may, at any time, submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the guidance at either CVM home page (
There are no capital costs, operating costs, and/or maintenance costs to report.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
This technology describes a novel method for treating diseases by combining two botulinum toxins, botulinum toxin A and B. Researchers at the FDA have shown that the combination of the A and B toxins is synergistic, improves muscle paralysis characteristics compared to individually administered serotypes, and produces a longer duration of action and a faster onset of paralysis. The synergistic effect allows lower doses compared to single use of either toxin and should help reduce resistance after repeated use. This technology is beneficial for the treatment of diseases already known to be treatable with botulinum toxins, such as facial wrinkles, headaches, muscle spasms, and cervical dystonia. This technology is also suitable to treat other diseases, such as strabismus, hemifacial spasms, facial nerve damage, and hyperhidrosis (excessive sweating).
Available for licensing are methods and pharmaceutical compositions for administering a combination of botulinum toxin A and B to treat unwanted or excessive presynaptic neuronal activity or secretion.
Cancer vaccines are one of many therapies available for treatment and prevention. In particular, vaccines that elicit immune responses have been used to treat or control tumor growth that has evaded immunosurveillance. However, these vaccines have demonstrated limited success.
Available for licensing is a method for synergistically affecting tumor growth involving the administration of an agent that blocks the TGF-β signaling pathway, in combination with an immunogenic agent. The agent that blocks the TGF-β signaling pathway may inhibit the immunosuppressive effects of TGF-β, while the immunogenic agent is believed to enhance an immune response. Surprisingly, the combination of such elements produces a synergistic effect. The administration of the 1D11.16 anti-TGF-β antibody in combination with the human papilloma virus E7(49-57) peptide enhances tumor regression in an animal model. The administration of the 1D11.16 anti-TGF-β antibody in
1. PCT patent publication WO 2006/089251, August 24, 2006.
2. M Terabe et al. Transforming growth factor-beta production and myeloid cells are an effector mechanism through which CD1d-restricted T cells block cytotoxic T lymphocyte-mediated tumor immunosurveillance: abrogation prevents tumor recurrence. J Exp Med. 2003 Dec 1;198(11):1741-1752.
This invention describes novel arylthioindole derivatives, 3-arylthioindole-2-carboxylic acid esters derivatives, having excellent affinity for tubulin and excellent efficacy as inhibitors of the growth of MCF-7 breast cancer cells. These new chemical compounds have the potential to result in more effective therapeutics for the treatment of neoplastic diseases.
1. G De Martino, MC Edler, G La Regina, A Coluccia, MC Barbera, D Barrow, RI Nicholson, G Chiosis, A Brancale, E Hamel, M Artico, R Silvestri. New arylthioindoles: potent inhibitors of tubulin polymerization. 2. Structure-activity relationship and molecular modeling studies. J Med Chem. 2006 Feb 9;49(3):947-954.
2. G De Martino, G La Regina, A Coluccia, MC Edler, MC Barbera, A Brancale, E Wilcox, E Hamel, M Artico, R Silvestri. Arylthioindoles, potent inhibitors of tubulin polymerization. J Med Chem. 2004 Dec 2;47(25):6120-6123.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the NIH Advisory Board for Clinical Research.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
This notice is being published less than 15 days prior to the meeting due to the urgent need to meet timing limitations imposed by the intramural research review cycle.
Any interested person may file written comments with the committee by forwarding the statements to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Notice is hereby given of a change in the meeting of the President's Cancer Panel, February 12, 2007, 8 a.m. to February 12, 2007, 6 p.m., University of Mississippi, Medical Center, 2500 North State Street, Jackson, MS 39216 which was published in the
Due to inclement weather, this meeting is amended to reschedule the closed session on February 12, 2007, 4 p.m.-6 p.m. to March 8, 2007, 11 a.m.-1 p.m. as a telephone conference. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
The National Cancer Advisory Board's Breast Cancer Prevention Trial P-4 Working Group will meet to discuss the P-4 trial which is designed to perform a 10-year study in risk-eligible, postmenopausal women to determine whether letrozole is more effective than raloxifene in reducing the incidence of invasive breast cancer in this otherwise healthy population. The meeting will be closed to the public.
The thoughts and input from this meeting will be summarized in a report that will be presented to the National Cancer Advisory Board in open session at an upcoming meeting.
Over the past several years the National Cancer Institute has performed a series of important prevention clinical trials to study the effect(s) of tamoxifen, raloxifene (Selective Estrogen Receptor Modulators—SERMS) and, subsequently, aromatase inhibitors such as letrozole on reducing the incidence of invasive breast cancer in defined populations of postmenopausal women. As follow-on to this series of breast cancer prevention trials, a new trial in the sequence, the P-4 trial, has been proposed and peer-reviewed. The P-4 trial is designed to perform a 10-year study in risk-eligible, post menopausal women to determine wether letrozole is more effective than raloxifene in reducing the incidence of invasive breast cancer in this otherwise healthy population. The trial will accrue 12,800 patients over 4 years. The primary endpoint for this trial will be the first occurrence of invasive breast cancer. Secondary endpoints will include DCSI; LCIA, ischemic heart disease; fracture of the wrist, hip, and spine; DVTs; PEs; TIAs and stroke; death; other invasive cancers; and quality of life.
The P-4 trial is a significant financial commitment on the part of the National Cancer Institute and of the cancer research community. Additionally, the outcome of this trial will require more than 10 years of study. Given the magnitude of this investment, the rapid acceleration of progress is molecular genetics and molecular biology, and the disparate range of views on the trial, the National Cancer Advisory Board is convening a group of experts to provide feedback to the National Cancer Advisory Board.
Any interested person may file written comments with the work group by forwarding the statement to the Contact Person listed in this notice. This statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Institute of Environmental Health Sciences Special Emphasis Panel, March 15, 2007, 7 p.m. to March 16, 2007, 6 p.m., The Radisson Governor's Inn, I-40 at Davis Drive, Exit 280, Research Triangle Park, NC 27709 which was published in the
The meeting will be held 8 a.m. to 5 p.m. on both days. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
(Catalogue of Federal Domestic Assistance Program Nos. 93.242, Mental Health Research Grants; 93.281, Scientist Development Award, Scientist Development Award for Clinicians, and Research Scientist Award; 93.282, Mental Health National Research Service Awards for Research Training, National Institutes of Health, HHS)
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of person privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 5552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Institute of Child Health and Human Development Special Emphasis Panel, February 21, 2007, 1 p.m. to February 21, 2007, 4 p.m. National Institutes of Health, 6100 Executive Blvd., Room 5B01, Rockville, MD 20852 which was published in the
The meeting will be held March 15, 2007 from 1 p.m. to 4 p.m. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the National Institute of Child Health and Human Development Special Emphasis Panel, January 5, 2007, 2 p.m. to March 9, 2007, 4 p.m. National Institutes of Health, 6100 Executive Blvd., 5th Floor Conference Room, Rockville, MD 20852 which was published in the
The meeting will be held March 19, 2007 from 4 p.m. to 5 p.m. The location remains the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
60-day notice of information collection under review: N-300, Application to File Declaration of Intention; OMB Control No. 1615-0078.
The Department of Homeland Security, U.S. Citizenship and Immigration Services has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until May 8, 2007.
Written comments and suggestions regarding the item(s) contained in this notice, and especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, NW., 3rd Floor, Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352, or via e-mail at
Written comments and suggestions from the public and affected agencies concerning the collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please contact Richard A. Sloan, Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, 111 Massachusetts Avenue, NW., 3rd Floor, Suite 3008, Washington, DC 20529; Telephone No. 202-272-8377.
60-Day Notice of Information Collection Under Review: Form N-426, Request for Certification of Military or Naval Service; OMB Control No. 1615-0053.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until May 8, 2007.
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, NW, 3rd Floor, Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352, or via e-mail at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please contact Richard A. Sloan, Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, 111 Massachusetts Avenue, NW, 3rd Floor, Suite 3008, Washington, DC 20529; Telephone number 202-272-8377.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, Department of Housing and Urban Development, Room 7262, 451 Seventh Street, NW., Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 1-800-927-7588.
In accordance with the December 12, 1988 court order in
Fish and Wildlife Service, Interior.
Notice of availability.
This notice announces the receipt of an application from the Contra Costa County Flood Control and Water District (Flood Control District) and the availability of the final Environmental Impact Statement/Environmental Impact Report (EIS/EIR), East Contra Costa County Habitat Conservation Plan and Natural Community Conservation Plan (Plan), and Implementing Agreement (IA) for public review and comment. A notice of availability of the draft EIS/EIR was published in the
The 30-day waiting period will end on April 9, 2007. Written comments should be received on or before this date.
Send comments by mail or facsimile to: (1) Lori Rinek, Chief, Conservation Planning and Recovery Division, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-
(1) Sheila Larsen, Wildlife Biologist, or Lori Rinek, Chief, Conservation Planning and Recovery Division, Sacramento Fish and Wildlife Office, telephone 916-414-6600; or (2) John Kopchik, Principal Planner, Contra Costa County Community Development Department, telephone 925-335-1227.
Copies of the Plan, IA and Final EIS/EIR are available for public review from 9 a.m. to 5 p.m., at the Contra Costa County Community Development Department (see
In addition, copies of all documents are also available at the following local agency offices:
(1) City of Brentwood, Community Development Dept., 104 Oak Street, Brentwood, CA 94513.
(2) City of Clayton, Community Development Department, 6000 Heritage Trail, Clayton, CA 94517.
(3) City of Oakley, Community Development Department, 3231 Main Street, Oakley, CA 94561.
(4) City of Pittsburg, Planning Department, 65 Civic Drive, Pittsburg, CA 94565.
(5) East Bay Regional Park District, 2950 Peralta Oaks Court, Oakland, CA 94605.
The documents are also available at the following Contra Costa Library locations:
(6) 751 Third Street, Brentwood, CA.
(7) 6125 Clayton Road, Clayton, CA.
(8) Freedom High School, 1050 Neroly Road, Oakley, CA.
(9) 80 Power Avenue, Pittsburg, CA.
(10) Riverview Middle School, 205 Pacifica Avenue, Bay Point, CA.
You also may obtain copies of these documents for review by contacting Sheila Larsen [see
Section 9 of the ESA and Federal regulations prohibit the take of fish and wildlife species listed as endangered or threatened (16 U.S.C. 1538). The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532). Harm includes significant habitat modification or degradation that actually kills or injures listed wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering [50 CFR 17.3(c)]. Under limited circumstances, the Service may issue permits to authorize incidental take of listed fish or wildlife; i.e., take that is incidental to, and not the purpose of, otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species are found in 50 CFR 17.32 and 17.22, respectively.
Although take of listed plant species is not prohibited under the ESA, and therefore cannot be authorized under an incidental take permit, plant species may be included on a permit in recognition of the conservation benefits provided to them under a habitat conservation plan. All species included on an incidental take permit would receive assurances under the Services “No Surprises” regulation [50 CFR 17.22(b)(5) and 17.32(b)(5)].
In response to the proposed permittees' application, the Service proposes to issue an incidental take permit to the following local agencies: Contra Costa County (County); the cities of Brentwood, Clayton, Oakley, and Pittsburg (cities); Flood Control District; and East Bay Regional Park District. An incidental take permit is also proposed to be issued to an Implementing Entity to be formed by the County and cities to implement certain aspects of the Plan. The local agencies and the Implementing Entity are collectively referred to as the “permittees”. The Association has prepared the Plan on behalf of the permittees to satisfy the application requirements for a section 10(a)(1)(B) incidental take permit under the ESA and a section 2835 permit under the California Natural Community Conservation Planning Act of 2003 (NCCPA). Thus, the Plan constitutes a Habitat Conservation Plan pursuant to the ESA, and a Natural Community Conservation Plan (NCCP) pursuant to the California NCCPA.
The permittees seek a 30-year incidental take permit for covered activities within a proposed 174,018-acre planning area, located entirely in eastern Contra Costa County, California. They are requesting a permit for 28 species, 8 of which are currently listed as threatened or endangered under the ESA. Of these 28 species, the Association requests a permit and assurances for 17 animal species and assurances for 11 plant species. Proposed covered species include 3 wildlife species, currently listed as endangered under the ESA [San Joaquin kit fox (
If the proposed Plan is approved and the permit issued, take authorization of covered listed wildlife species would be effective at the time of permit issuance. Take of the currently non-listed covered wildlife species would be authorized concurrent with the species' listing under the ESA, should they be listed during the duration of the permit. Collectively, the 28 listed and unlisted species are referred to as the “covered species” in the Plan.
The applicants propose to minimize and mitigate the effects to covered species associated with the covered activities by participating in the Plan. The proposed Plan is intended to be a comprehensive and multi-jurisdictional document, providing for regional species conservation and habitat planning, while allowing the prospective permittees to better manage
In order to define a reasonable range of expected growth, the proposed Plan defines two permit areas: the initial urban development area and the maximum urban development area. Although the initial and maximum urban development areas bound the range of the proposed permit area, the final permit area may lie somewhere in between, depending on local land use decisions that occur during the proposed 30-year permit term. The proposed Plan, therefore, encompasses a range of alternative permit areas. Both the initial and maximum urban development areas are based on current general plans of the local jurisdictions.
The proposed initial urban development area is defined by: (1) The Urban Limit Line (ULL) of Contra Costa County and the city limits of the participating cities (Pittsburg, Clayton, Oakley, and Brentwood), whichever is largest; (2) the footprint of specific rural infrastructure projects outside the ULL and the city limits of participating cities; and (3) the boundary of any land acquired in fee title or conservation easement and managed under the Plan.
Up to 8,670 acres of ground-disturbing urban development activities within the ULL are proposed to be permitted under the initial urban development. The proposed maximum urban development area is the largest extent to which urban development could expand under the terms of the proposed Plan. Under this scenario, up to 11,853 acres of ground-disturbing urban development activities within the permit area could be allowed, as long as the conditions of the Plan are met. With either urban development area, an additional 1,126 acres of impact are expected from rural infrastructure projects and activities within the Plan's preserves. Thus, total impacts allowed under the Plan, are 9,796 acres and 13,029 acres with the initial and maximum urban development areas, respectively.
The conservation strategy was designed to minimize and mitigate the impacts of covered activities, contribute to the recovery of listed covered species, and protect and enhance populations of non-listed covered species, as proposed. The proposed conservation strategy provides for the establishment, enhancement, and long-term management of the preserves for the benefit of covered vegetation communities, covered species, and overall biodiversity and ecosystem functions. The proposed preserves would also serve to achieve other complementary goals such as recreation, grazing, and crop production, as long as the primary biological goals of the Plan are met and not compromised. The system of new preserves would likely be linked to existing protected lands to form a network of protected areas outside the area where new urban growth is proposed to be permitted under the Plan.
On September 2, 2005, a notice was published in the
The draft EIS/EIR analyzed three alternatives in addition to the proposed Plan described above. The proposed Plan was identified as Alternative 1 (also referred to as Conservation Strategy A). The three other alternatives are described below.
Alternative 2 (also referred to as Conservation Strategy B) would provide for the same size planning area, located entirely in eastern Contra Costa County, with the same preserve size as the proposed Plan, except that the location of the preserve would be modified. Modification of the preserve locations would result in increased protection of chaparral and cultivated agriculture and decreased protection of grassland. This alternative would also involve less riparian restoration than the proposed Plan. Other elements of the proposed Plan would remain the same, including species and communities covered, conservation measures, monitoring and adaptive management, and implementation approach.
Compared to the Proposed Plan, Alternative 3 (the Reduced Development Area Alternative) would provide for a reduced level of take due to a reduced permit area. Existing open space or agricultural lands within the ULL that are not currently designated for development would be conserved. Under this alternative, the permit area would be 6,991 acres. Other elements of the proposed Plan would remain the same including the species and communities covered, conservation measures, monitoring and adaptive management, and implementation approach.
Under the Alternative 4 (the No-Action/No-Project alternative), the proposed Plan would not be adopted, and permits pursuant to Section 10(a)(1)(B) of the Act and Section 2835 of the NCCPA would not be issued by the Service and California Department of Fish and Game, respectively. Compliance with the ESA would continue to be addressed on a case-by-case basis.
Proposed permit issuance triggers the need for compliance with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). Accordingly, a joint final NEPA/CEQA document has been prepared. The Service is the Lead Agency responsible for compliance under NEPA, and the Association is the Lead Agency with responsibility for compliance with CEQA. As NEPA Lead Agency, the Service is providing notice of the availability of the final EIS/EIR and is making available for public review the responses to comments on the draft EIS/EIR.
The Service and Association invite the public to review the final Plan, final EIS/EIR, and final IA during a 30-day public waiting period [see
The Service will evaluate the application, associated documents, and comments submitted to them to prepare a Record of Decision. A permit decision will be made no sooner than 30 days after the publication of the final EIS/EIR and completion of the Record of Decision.
This notice is provided pursuant to section 10(a) of the ESA and Service regulations for implementing NEPA, as amended (40 CFR 1506.6). We provide this notice in order to allow the public, agencies, or other organizations to review these documents.
Bureau of Land Management, Interior.
Notice of public meeting, off-road vehicle route designations.
To comply with CFR 8340, Off-Road Vehicles, and land use planning for the Bureau of Land Management, Phoenix District, Hassayampa Field Office, Arizona, three route designation public meetings will be held. The purpose of these meetings is to inform the public of the process that will be used, the type of input from the public that would be helpful, and the general schedule leading to final route designations. Maps will be available. Input from the public regarding route connectivity, existing conflicts, and current or desired access will be taken.
Meetings will be held beginning at 6:30 p.m. and conclude at 8 p.m. as follows: April 24, 2007, at Deer Valley Senior Center, 2001 West Wahalla Lane, Phoenix, Arizona; April 25, 2007, at Morristown Elementary School, 25950 Rockaway Hills Drive, Morristown, Arizona; and April 26, 2007, at Albins Civic Center, 19005 East K-Mine Road Center, Black Canyon City, Arizona.
Rich Hanson, Bureau of Land Management, 21605 North 7th Avenue, Phoenix, Arizona 85027, 623-580-5500.
Bureau of Land Management, Interior.
Correction.
In the Public Land Order No. 7616, 69 FR 59951-59953, published October 6, 2004, as FR Doc. 04 22391, make the following corrections:
On page 59951, in the Title, and in the Summary, “7 Secretarial Orders”, should read “5 Secretarial Orders”. In the Summary, “17,789.94 acres”, and “7,975.30 acres”, should read “17,769.94 acres”, and “7,955.30 acres”, respectively. In paragraph 2 of the Order, delete “September 2, 1914, November 4, 1914,”. On page 59952, column 1, in T. 20 S., R. 46 E., delete “Sec. 20, S
Minerals Management Service, Interior.
Notice of the availability of environmental documents; prepared for OCS mineral proposals on the Gulf of Mexico OCS.
Minerals Management Service (MMS), in accordance with Federal Regulations that implement the National Environmental Policy Act (NEPA), announces the availability of NEPA-related Site-Specific Environmental Assessments (SEA) and Findings of No Significant Impact (FONSI), prepared by MMS for the following oil and gas activities proposed on the Gulf of Mexico OCS.
Public Information Unit, Information Services Section at the number below. Minerals Management Service, Gulf of Mexico OCS Region,
MMS prepares SEAs and FONSIs for proposals that relate to exploration for and the development/production of oil and gas resources on the Gulf of Mexico OCS. These SEAs examine the potential environmental effects of activities described in the proposals and present MMS conclusions regarding the significance of those effects. Environmental Assessments are used as a basis for determining whether or not approval of the proposals constitutes major Federal actions that significantly affect the quality of the human environment in the sense of NEPA Section 102(2)(C). A FONSI is prepared in those instances where MMS finds that approval will not result in significant effects on the quality of the human environment. The FONSI briefly presents the basis for that finding and includes a summary or copy of the SEA.
This notice constitutes the public notice of availability of environmental documents required under the NEPA Regulations.
This listing includes all proposals for which the Gulf of Mexico OCS Region prepared a FONSI in the period subsequent to publication of the preceding notice.
Persons interested in reviewing environmental documents for the proposals listed above or obtaining information about SEAs and FONSIs prepared for activities on the Gulf of Mexico OCS are encouraged to contact MMS at the address or telephone listed in the
Bureau of Reclamation, Interior.
Notice of extension of the scoping period for the New Melones RMP/EIS.
The Bureau of Reclamation is extending the scoping period for the RMP/EIS to March 19, 2007. The notice of intent for the RMP/EIS was published in the
During the scoping process, several individuals and organizations have indicated that submission of scoping comments by the February 16, 2007 would be a difficult deadline to meet. To encourage additional public input, the public comment period has been extended.
Written comments on the scope of the proposed RMP/EIS should be
Send your comments to Ms. Elizabeth Vasquez, Natural Resource Specialist, Central California Area Office, Bureau of Reclamation, 7794 Folsom Dam Road, Folsom, CA 95630, or e-mail to
Ms. Elizabeth Vasquez at 916-988-1707.
Comments received in response to this notice will become part of the administrative record and are subject to public inspection. Our practice is to make comments, including names, home addresses, home phone numbers, and e-mail addresses of respondents, available for public review. Individual respondents may request that we withhold their names and/or home addresses, etc., but if you wish us to consider withholding this information, you must state this prominently at the beginning of your comments. In addition, you must present a rationale for withholding this information. This rationale must demonstrate that disclosure would constitute a clearly unwarranted invasion of privacy. Unsupported assertions will not meet this burden. In the absence of exceptional, documentable circumstances, this information will be released. We will always make submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
30-day notice of information collection under review: Interstate firearms shipment report of theft/loss.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until April 9, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
30-day notice of information collection under review: Requisition for forms or publications and requisition for firearms/explosives forms.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until April 9, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
30-day notice of information collection under review: Advanced Explosives Destruction Techniques (AEDT) Training Course Follow-up Evaluation Form.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until April 9, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
On April 17, 2006, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Julian A. Abbey, M.D., (Respondent) of Saugus, Massachusetts. The Show Cause Order proposed to revoke Respondent's DEA Certificate of Registration, BA4361426, as a practitioner on two grounds.
First, the Show Cause Order alleged that Respondent had entered into a voluntary agreement with the Massachusetts Board of Registration in Medicine in which he agreed to cease the practice of medicine in that State effective July 30, 2004. Show Cause Order at 1. The Show Cause Order further alleged that the agreement constituted a disciplinary action against Respondent's state license.
Second, the Show Cause Order alleged that on August 4, 2004, Respondent had submitted an on-line renewal application for his DEA registration in which he falsely indicated that he “had not been the subject of any State disciplinary or licensing action.”
On April 21, 2006, the Government attempted to serve the Show Cause Order, which also notified Respondent of his right to request a hearing, by Certified Mail, Return Receipt Requested. However, the mailing was returned unclaimed. Thereafter, on May 18, 2006, the Government served the Show Cause Order by First Class Mail to the address of Respondent's registered location. Since that time, neither Respondent, nor any one purporting to represent him, has responded. Because (1) more than thirty days have passed since service of the Show Cause Order, and (2) no request for a hearing has been received, I conclude that Respondent has waived his right to a hearing.
Respondent holds DEA Certificate of Registration, BA4361426, which was initially issued to him on March 15, 1995. On August 3, 2004, Respondent renewed his registration using the DEA Internet site. Respondent's registration does not expire until June 30, 2007.
On June 25, 2004, Respondent entered into a “Voluntary Agreement Not To Practice Medicine” with the Massachusetts Board of Registration in Medicine (Board); on July 30, 2004, the Board accepted the agreement. Under the agreement, Respondent agreed to immediately cease practicing medicine in Massachusetts. Moreover, Respondent acknowledged that the agreement constituted “a voluntary restriction of my license to practice medicine and is considered to be a disciplinary action that is reportable to any national data reporting system” pursuant to Massachusetts law. Agreement at 1. Respondent also agreed that “[a]ny violation of this Agreement shall be prima facie evidence for immediate summary suspension of my license to practice medicine.”
According to the investigative file, on October 28, 2005, Respondent was arrested in Lynnfield, Massachusetts, and charged under state law with the illegal possession of a class C substance (hydrocodone bitartrate) with intent to distribute. According to the file, during the period following Respondent's entering into the voluntary agreement and his arrest, Respondent obtained approximately 37,500 tablets of hydrocodone bitartrate 10mg/650mg.
Thereafter, on November 9, 2005, the Board summarily suspended Respondent's state medical license on the ground that he posed an immediate threat to the public safety, health and welfare. According to online records of the Board, Respondent's medical license remains suspended.
Under Massachusetts law, a physician must also hold a registration to handle a controlled substance; the registration is issued by the State's Commissioner of Public Health.
Under the Controlled Substances Act (CSA), a practitioner must be currently authorized to handle controlled substances in “the jurisdiction in which he practices” in order to maintain a DEA registration.
As found above, the letters from the State Department of Health establish that Respondent no longer has authority to handle controlled substances in Massachusetts, the State in which he holds his DEA registration. Therefore, Respondent is no longer entitled to maintain his DEA registration.
Furthermore, based on the evidence in the investigative file which shows that Respondent obtained 37,500 dosage units of hydrocodone bitartrate notwithstanding that he no longer had authority to practice medicine, I conclude that Respondent was engaged in the diversion of substantial quantities of controlled substances. Therefore, while this conduct was not alleged as grounds for the revocation of Respondent's registration, I conclude that the public interest requires that Respondent's registration be revoked effective immediately.
Accordingly, pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b) and 0.104, I hereby order that DEA Certificate of Registration, BA4361426, issued to Julian A. Abbey, M.D., be, and it hereby is, revoked. I further order that any pending applications for renewal or modification of such registration be, and they hereby are, denied. This order is effective immediately.
30-day notice of information collection under review: Revision of a currently approved collection; Analysis of Law Enforcement Officers Killed and Assaulted.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with established review procedures of the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until April 9, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to Mr. Gregory E. Scarbro, Unit Chief, Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division, Module E-3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306; facsimile (304) 625-3566.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques of other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
Bureau of International Labor Affairs, Office of Trade and Labor Affairs, Department of Labor.
Notice.
This notice extends the closing date for SGA 07-04 until April 9, 2007.
Lisa Harvey, Department of Labor, Procurement Services Center, Room S-4307, 200 Constitution Ave., NW., Washington DC 20210, Telephone (202) 693-4592, e-mail:
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This information collection is published to obtain comments from the public.
Comments will be accepted until April 9, 2007.
Interested parties are invited to submit written comments to NCUA Clearance Officer listed below: Clearance Officer: Mr. Neil McNamara, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428, Fax No. 703-837-2861, E-mail:
Requests for additional information or a copy of the information collection request, should be directed to Tracy Sumpter at the National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428, or at (703) 518-6444.
Proposal for the following collection of information:
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This information collection is published to obtain comments from the public.
Comments will be accepted until April 9, 2007.
Interested parties are invited to submit written comments to NCUA Clearance Officer listed below:
Requests for additional information or a copy of the information collection request, should be directed to Tracy Sumpter at the National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428, or at (703) 518-6444.
Proposal for the following collection of information:
National Indian Gaming Commission (NIGC), Interior.
Notice of Availability (NOA).
In accordance with Section 102(2)(C) of the National Environmental Policy Act (NEPA) 42 U.S.C. 4321
In accordance with Section 176 of the Clean Air Act 42 U.S.C. 7506, and the U.S. Environmental Protection Agency's (EPA) general conformity regulations 40 CFR Part 93, Subpart B, a Draft Conformity Determination (DCD) has been prepared for the proposed project. The DCD is contained within Appendix W of the DEIS.
A public information workshop will be held at the Spreckels Performing Arts Center, Nellie W. Codding Theatre, 5409 Snyder Lane, Rohnert Park, CA 94928 on April 4, 2007 from 4 p.m. to 6 p.m. Following the public information workshop, the NIGC will hold a public hearing from 6:30 p.m. to 10 p.m. (or until all comments have been recorded) to provide the public an opportunity to comment on the DEIS and/or the DCD. A second public information workshop will be held at the Wells Fargo Center for the Arts (formerly the Luther Burbank Center), Ruth Finley Person Theatre, 50 Mark West Springs Road, Santa Rosa, CA 95403 on April 5, 2007 from 4 p.m. to 6 p.m. Following the public information workshop, the NIGC will hold a public hearing from 6:30 p.m. to 10 p.m. (or until all comments have been recorded) to provide the public an opportunity to comment on the DEIS and/or the DCD. The NIGC will also be accepting written comments. Written comments on the DEIS and/or the DCD must be postmarked by May 14, 2007, and sent to the addressed listed below.
Written comments on the DEIS and/or the DCD should be addressed to: Brad Mehaffy, NEPA Compliance Officer, National Indian Gaming Commission, 1441 L Street, NW., Suite 9100 Washington DC 20005 (or)
Please include your name, return address, and the caption: “DEIS Comments, Graton Rancheria Casino and Hotel Project”, on the first page of your written comments. The public information workshops and public hearings will be hosted by the NIGC at the Spreckels Performing Arts Center, Nellie W. Codding Theatre, 5409 Snyder Lane, Rohnert Park, CA 94928 and the Wells Fargo Center for the Arts (formerly the Luther Burbank Center), Ruth Finley Person Theatre, 50 Mark West Springs Road, Santa Rosa, CA 95403.
For general information on the NEPA review procedures, the status of the NEPA review, or the general conformity requirements, contact Brad Mehaffy, NIGC NEPA Compliance Officer, 202-632-7003. Additional information (e.g. public notices, scoping reports, and contact information) can also be obtained at the following Web site: (
The proposed federal action is the NIGC's approval of a gaming management contract between the Graton Rancheria and SC Sonoma Management LLC. The approval of the gaming management contract would result in the development of a resort hotel, casino, and supporting facilities. The facility will be managed by SC Sonoma Management LLC on behalf of the Graton Rancheria, pursuant to the terms of a gaming management contract.
The NIGC published a Notice of Intent (NOI) in the
During the scoping process, the NIGC solicited comments from the general public (providing a 50-day comment period and including a public hearing) and offered Cooperating Agency status to both Federal and non-Federal agencies, including the Bureau of Indian Affairs (BIA), U.S. Environmental Protection Agency (USEPA), the U.S. Army Corps of Engineers (USACE), the California Department of Transportation (Caltrans), the U.S. Fish and Wildlife Service (USFWS), the California Department of Fish and Game (CDFG) and the County of Sonoma. An EIS Scoping Report was published in August 2004, which summarized public scoping comments and identified the BIA, USACE, Caltrans, and Sonoma County as cooperating agencies.
Since the release of the August 2004 Scoping Report the location for the proposed casino-hotel project has changed. A supplemental scoping process was initiated to address this change and allow an opportunity for the general public and agencies to comment on the scope of analysis for the new proposed location. A supplemental NOI was published in the
The DEIS has been prepared which has incorporated the issues and concerns summarized within the scoping reports, to the extent required by NEPA. Seven alternatives are evaluated in detail in the DEIS, including development on one of three alternatives sites and a no action alternative. The proposed project/action (Alternative A) includes a casino/hotel resort on a site west of Rohnert Park (the Wilfred site). The casino/hotel resort would include restaurants, a hotel, an entertainment venue, gaming space, banquet/meeting space, and a pool and spa. In addition to the casino/hotel facility, the proposed development would also include on-site parking and possibly an on-site tertiary wastewater treatment plant.
Alternative B consists of the development of a casino/hotel resort nearly identical to that proposed under Alternative A, but located on the northwest corner of an adjacent site, slightly further west of Rohnert Park (the Stony Point site). Alternative C also consists of the development of a casino/hotel resort nearly identical to that proposed under Alternative A. However, the Alternative C casino/hotel resort would be located on the northeast
The Clean Air Act requires Federal agencies to assure that their actions conform to applicable implementation plans for achieving and maintaining the National Ambient Air Quality Standards for criteria air pollutants. The NIGC has prepared a DCD for the proposed action/project described above. The DCD is including in Appendix W of the DEIS.
Commenting individuals may request confidentiality. If you wish us to withhold your name and/or address from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your written comments. Such requests will be honored to the extent allowed by law. Anonymous comments will not, however, be considered. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available to public in their entirety.
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rules 7a-15 through 7a-37 (17 CFR 260.7a-15—7a-37) under the Trust Indenture Act of 1939 set forth the general requirements relating to applications, statements and reports that must be filed under the Act by issuers and trustees qualifying indentures under that Act for offerings of debt securities. The respondents are persons and entities subject to the Trust Indenture Act requirements. Rules 7a-15 through 7a-37 are disclosure guidelines and do not directly result in any collection of information. The Rules are assigned only one burden hour for administrative convenience.
Written comments are invited on: (a) Whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, c/o Shirley Martinson, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to revise two of its AEMI rules and two of its AEMI-One rules, relating in each case to portfolio depositary receipts (“PDRs”) and index fund shares (“IFSs”) that trade on the Amex, in order to conform these rules to changes previously approved by the Commission to the corresponding legacy rules for these securities. Among other things, these proposed changes include generic listing standards for series of PDRs and IFSs that are based on international or global indexes or on indexes previously approved by the Commission for the trading of PDRs, IFSs, options or other specified index-based securities. The proposed conforming rule changes would not make any changes to the manner in which PDRs and IFSs trade on the AEMI platform, but are concerned primarily with eligibility criteria for index components, index methodology and calculation, and intraday dissemination of information on estimated share value. The text of the proposed rule change is available at Amex, the Commission's Public Reference Room, and www.amex.com.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange has recently adopted two sets of rules in connection with the operation of its new hybrid market trading platform for equity products and exchange traded funds, designated as AEMI
The Exchange proposes to revise Rules 1000-AEMI-One and 1000-AEMI (relating to PDRs) and Rules 1000A-AEMI-One 1000A-AEMI (relating to IFSs) in order to conform these rules to changes previously approved by the Commission to the corresponding legacy rules for these securities. In particular, the Exchange is proposing to make the same changes to these AEMI-One and AEMI rules that were approved by the Commission for legacy Rules 1000 and 1000A in Securities Exchange Act Release Nos. 54739 and 55018.
The proposed rule change is consistent with Section 6(b) of the Act,
The proposed rule change will impose no burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the forgoing rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) become operative for 30 days after the date of this filing (or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest), it has become effective pursuant to Section 19(b)(3)(A) of the Act
Normally, a proposed rule change filed under 19b-4(f)(6) may not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii)
The Commission has determined to waive the five-day pre-filing notice requirement. In addition, the Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because such waiver would permit a smoother transition to the AEMI-One and AEMI rules. The Commission notes that the proposed rule text is substantially identical to the text of CBOE's existing legacy rules.
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Amex-2007-17. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
CBOE proposes to amend CBOE Rule 8.3 to request permanent approval of a pilot program relating to Market-Makers quoting away from CBOE's trading floor. The text of the proposed rule change is available on CBOE's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to request permanent approval of an existing Pilot Program that allows a CBOE Market-Maker to submit electronic quotations away from CBOE's trading floor in his/her appointed Hybrid Classes and Hybrid 2.0 Classes. In March 2005, CBOE amended its rules relating to Market-Maker appointments and quoting obligations.
CBOE believes that the Pilot Program has been successful, in that it allows Market-Makers to choose how they would like to participate in CBOE's Hybrid Trading System,
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
DTC is adding a new Section 4 to Rule 1 (Definitions) to clarify that the By-Laws, Rules, and Procedures are governed by New York state law.
In its filing with the Commission, DTC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. DTC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
DTC is adding a new Section 4 to Rule 1 to clarify that the By-Laws, Rules, and Procedures are governed by New York state law. DTC's participant's and pledgee's agreements currently specify this choice of law, but DTC wishes to add such language explicitly to its rules for transparency purposes and to harmonize DTC's rules with those of its clearing agency affliliates, the Fixed Income Clearing Corporation and the National Securities Clearing Corporation.
DTC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
DTC does not believe that the proposed rule change will have any impact or impose any burden on competition.
DTC has not solicited or received written comments relating to the proposed rule change. DTC will notify the Commission of any written comments it receives.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(i) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File No. SR-DTC-2007-03. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On December 29, 2006, The NASDAQ Stock Market LLC (“Nasdaq”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission has reviewed carefully the proposed rule change and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
Nasdaq is proposing to trade shares (“Shares”) of the iShares Silver Trust (“Trust”) pursuant to unlisted trading privileges (“UTP”). The text of the proposed rule change is available from Nasdaq's Web site at
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item III below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposes to trade the Shares on a UTP basis. Nasdaq is submitting this filing because its current listing standards do not extend to the Shares. However, systems operated by Nasdaq and its affiliates currently trade the Shares on an over-the-counter basis as facilities of NASD. This filing will allow Nasdaq to trade the Shares as an exchange.
The Shares represent beneficial ownership interests in the net assets of the Trust, consisting primarily of silver bullion. The investment objective of the Trust is for the Shares to reflect the performance of the price of silver, less the Trust's expenses. The Trust is not an investment company under the Investment Company Act of 1940.
The Commission previously approved the listing and trading of the Shares on the American Stock Exchange LLC (“Amex”).
Issuances of Shares will be made only in baskets of 50,000 Shares or multiples thereof (“Baskets” or “Basket Aggregations”). The Trust issues and redeems the Shares on a continuous basis, by or through participants that have entered into participant agreements (each, an “Authorized Participant”).
When calculating the net asset value (“NAV”) per Share, the Trustee values the silver held by the Trust on the basis of the day's announced London silver fix price. The calculation methodology for the NAV is described in more detail in the Amex Order. After the NAV is determined, at or about 4 p.m. ET each business day, the Trustee then determines the Basket Silver Amount for orders placed by Authorized Participants received before 4 p.m. ET that day. The Trustee at the same time determines an “Indicative Basket Silver Amount” that Authorized Participants can use as an indicative amount of silver to be deposited for issuance of the Shares on the next business day. Thus, although Authorized Participants place orders to purchase Shares throughout the trading day, the actual Basket Silver Amount is determined at 4 p.m. ET or shortly thereafter.
After 4 p.m. ET each business day, the Trustee and the sponsor of the Trust disseminate the NAV for the Shares, the Basket Silver Amount (for orders properly placed by 4 p.m. ET during the day), and the next day's Indicative Basket Silver Amount. The Basket Silver Amount, the Indicative Basket Silver Amount, and the NAV are communicated by the Trustee to all Authorized Participants via facsimile or electronic mail and on the Trust's Web Site at
Quotations for and last sale information regarding the Shares are disseminated through the Consolidated Tape System. The Web site for the Trust, which is publicly accessible at no charge, contains the following information: (a) The prior business day's NAV and the reported closing price; (b) the mid-point of the bid-ask price in relation to the NAV as of the time the NAV is calculated (the “Bid-Ask Price”); (c) calculation of the premium or discount of such price against such NAV; (d) data in chart form displaying the frequency distribution of discounts and premiums of the Bid-Ask Price against the NAV, within appropriate ranges for each of the four previous calendar quarters; (e) the Basket Silver Amount; (f) the Indicative Basket Silver Amount; (g) the Prospectus; and (h) other applicable quantitative information, such as expense ratios, trading volumes, and the total returns of the Shares.
The Trust's Web site also provides at no charge continuously updated bids and offers indicative of the spot price of silver.
According to the Amex Order, Amex also disseminates for the Trust on a daily basis by means of CTA/CQ High Speed Lines information with respect to the Indicative Trust Value (“ITV”) for the Trust. The ITV is disseminated on a per-Share basis at least every 15 seconds from 9:30 a.m. to 4:15 p.m. ET. The ITV is calculated based on the amount of silver required for creations and redemptions and a price of silver derived from updated bids and offers indicative of the spot price of silver.
Nasdaq will halt trading in the Shares under the conditions specified in Nasdaq Rules 4120 and 4121. The conditions for a halt include a regulatory halt by the listing market. UTP trading in the Shares will also be governed by provisions of Nasdaq Rule 4120(b) relating to temporary interruptions in the calculation or wide dissemination of the Indicative Trust Value (which is comparable to the IIV or IOPV of an ETF) or the value of the spot price of silver. Additionally, Nasdaq may cease trading the Shares if other unusual conditions or circumstances exist which, in the opinion of Nasdaq, make further dealings on Nasdaq detrimental to the maintenance of a fair and orderly market. Nasdaq will also follow any procedures with respect to trading halts as set forth in Nasdaq Rule 4120(c). Finally, Nasdaq will stop trading the Shares if the listing market delists them.
Nasdaq believes that its surveillance procedures are adequate to address any concerns about the trading of the Shares on Nasdaq. Trading of the Shares through NASD facilities operated by Nasdaq is currently subject to NASD's surveillance procedures for equity securities in general and ETFs in particular. After Nasdaq begins to trade the Shares as an exchange, NASD, on behalf of Nasdaq, will continue to surveil Nasdaq trading, including Nasdaq trading of the Shares. Nasdaq's transition to exchange status will not result in any change in the surveillance process with respect to the Shares.
In connection with the trading of the Shares, Nasdaq will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (a) The procedures for purchases and redemptions of Shares in Baskets (including noting that Shares are not individually redeemable); (b) Nasdaq Rule 2310, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers; (c) how information regarding the ITV is disseminated; (d) the requirement that members deliver a prospectus to investors purchasing the Shares prior to or concurrently with the confirmation of a transaction; and (e) trading information. Nasdaq notes that investors purchasing Shares directly from the Trust (by delivery of the Basket Silver Amount) will receive a prospectus. Members purchasing Shares from the Trust for resale to investors will deliver a prospectus to such investors.
In addition, the Information Circular will reference that the Trust is subject to various fees and expenses described in the Registration Statement and that the number of ounces of silver required to create a Basket or to be delivered upon redemption of a Basket will gradually decrease over time because the Shares comprising a Basket will represent a decreasing amount of silver due to the sale of the Trust's silver to pay Trust expenses. The Information Circular will also reference the fact that there is no regulated source of last-sale information regarding physical silver, that the Commission has no jurisdiction over the trading of silver as a physical commodity, and that the CFTC has regulatory jurisdiction over the trading of silver futures contracts and options on silver futures contracts. The Information Circular will also discuss any relief granted by the Commission or the staff from any rules under the Act.
Nasdaq believes that the proposal is consistent with Section 6(b) of the Act
Nasdaq does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2007-018. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
In addition, the Commission finds that the proposal is consistent with Section 12(f) of the Act,
The Commission further believes that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission notes that, if the Shares should be delisted by the listing exchange, Nasdaq would no longer have authority to trade the Shares pursuant to this order.
In support of this proposal, Nasdaq has made the following representations:
(1) Nasdaq's surveillance procedures are adequate to address any concerns associated with the trading of the Shares on Nasdaq.
(2) Nasdaq has entered into an Information Sharing Agreement with NYMEX for the purpose of providing information in connection with trading in or related to COMEX silver futures contracts.
(3) Nasdaq would inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares, including procedures for purchases and redemptions of Shares, suitability recommendation requirements, dissemination of the ITV, and trading information.
(4) Nasdaq would require its members to deliver a prospectus to investors purchasing Shares prior to or concurrently with a transaction in such Shares and will note this prospectus delivery requirement in the Information Circular.
This approval order is conditioned on Nasdaq's adherence to these representations.
The Commission finds good cause for approving this proposal before the thirtieth day after the publication of notice thereof in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq proposes to amend Rule 4630 to govern trading in any Commodity-Related Security (as defined below) and to make conforming amendments to Rule 4120. Pursuant to the amended rule and in accordance with the terms and conditions specified in this filing, Nasdaq also proposes to trade, pursuant to unlisted trading privileges, the 16 Commodity-Related Securities described below.
The text of the proposed rule change is available from Nasdaq's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is proposing to trade the following securities pursuant to UTP for a pilot period of three months beginning on March 5, 2007: (1) Shares of the PowerShares DB Commodity Index Tracking Fund, (2) shares of the PowerShares DB G10 Currency Harvest Fund, (3) shares of the PowerShares DB Agricultural Fund, (4) shares of the PowerShares DB Oil Fund, (5) shares of the PowerShares DB Base Metals Fund, (6) shares of the PowerShares DB Energy Fund, (7) shares of the PowerShares DB Silver Fund, (8) shares of the PowerShares DB Gold Fund, (9) shares of the PowerShares DB Precious Metals Fund, (10) iPath Dow Jones-AIG Commodity Index Total Return Exchange-Traded Notes, (11) iPath GSCI Total Return Index Exchange-Traded Notes, (12) iPath Goldman Sachs Crude Oil Total Return Index Exchange-Traded Notes, (13) shares of the iShares GSCI Commodity-Indexed Trust, (14) units of the United States Oil Fund, LP, (15) Claymore MACROShares Oil Up Tradeable Shares, and (16) Claymore MACROShares Oil Down Tradeable Shares (collectively, the “Covered Securities”). The Commission previously approved the original listing and trading of each of the Covered Securities by the New York Stock Exchange (“NYSE”) or the American Stock Exchange (“Amex”).
Under Rule 602 of Regulation NMS (the “Quote Rule”),
Nasdaq has operated ITS/CAES under the Transitional Agreement in order to allow NASD to fulfill its Quote Rule obligation to provide a quotation facility for non-Nasdaq exchange-listed securities (“CQS Securities”). On March 5, 2007, NASD expects to begin to fulfill its obligation to provide a quotation facility for CQS Securities without Nasdaq's assistance through its Alternative Display Facility (the “ADF”).
On
The Covered Securities have been eligible to trade on ITS/CAES because the Quote Rule requires NASD, as a national securities association, to provide a means for its members to post quotes for all NMS stocks. As an exchange, however, Nasdaq may not trade securities on a UTP basis unless Nasdaq “has in effect a rule or rules providing for transactions in the class or type of security to which the exchange extends unlisted trading privileges,”
It had been Nasdaq's expectation that it would not trade all of the Covered Securities as of March 5, 2007, in light of low trading volumes of some of the Covered Securities and the administrative requirements associated with product-specific filings. Based on input from its members and NASD, however, Nasdaq has concluded that there are OTC market makers in each of the Covered Securities that may be subject to the 1% Rule, based on recent trading volumes. Moreover, although the ADF is scheduled to become operational for CQS Securities on March 5, 2007, an NASD member that is not already an ADF participant might not have sufficient time to move its quotations in the Covered Securities to the ADF by March 5. Accordingly, Nasdaq believes that it must begin trading the Covered Securities by March 5 in order to prevent disruptions in the markets for the Covered Securities and forestall regulatory compliance issues for OTC market makers subject to the 1% Rule in the Covered Securities.
It does not appear that there would be sufficient time between now and March 5 for Nasdaq and Commission staff to process a detailed filing regarding each of the Covered Securities. Moreover, in cases where Covered Securities are issued by pooled investment vehicles that invest in commodity futures that are traded on futures exchanges that are not members of the Intermarket Surveillance Group (“ISG”), securities exchanges trading the Covered Securities have entered into regulatory information-sharing agreements with such futures exchanges. At this time, Nasdaq is in the process of entering into such agreements with ICE Futures and the Kansas Board of Trade, and is in the process of amending its existing agreement with the New York Mercantile Exchange (“NYMEX”) to cover additional commodities. Nasdaq has just completed an agreement with the London Metals Exchange, and expects to complete the remaining agreements in the near future, but not by March 5, 2007.
In light of all of these considerations, Nasdaq is seeking Commission approval for a proposal to trade the Covered Securities for a three-month pilot period. During the pilot period, Nasdaq will complete all required regulatory information sharing agreements and will submit detailed product-specific filings covering each of the Covered Securities.
Nasdaq deems the Covered Securities to be equity securities, thus rendering trading in the Covered Securities subject to its existing rules governing the trading of equity securities. During the period while a Covered Security is trading under this pilot filing, its trading hours will be 9:30 a.m. to 4 p.m., Eastern Time (“ET”). Nasdaq may, however, propose longer trading hours for some of the Covered Securities in a subsequent product-specific filing, depending on the extent of dissemination of intraday values and index values related to the Covered Security.
Nasdaq will halt trading in a Covered Security under the conditions specified in Nasdaq Rules 4120 and 4121. The conditions for a halt include a regulatory halt by the listing market. UTP trading in the Covered Securities will also be governed by provisions of Nasdaq Rule 4120(b) relating to temporary interruptions in the calculation or wide dissemination of (i) the Intraday Indicative Value, Intraday Optimized Portfolio Value, or other comparable intraday valuation for a Covered Security; or (ii) the value of any index or any commodity-related value underlying a Covered Security.
Nasdaq believes that its surveillance procedures are adequate to address any concerns about the trading of the Covered Securities on Nasdaq. Trading of the Covered Securities through ITS/CAES is currently subject to NASD's surveillance procedures for equity securities in general and ETFs in particular. After Nasdaq begins to trade the Covered Securities as an exchange, NASD, on behalf of Nasdaq, will continue to surveil Nasdaq trading, including Nasdaq trading of the Covered Securities. Nasdaq's transition to exchange status will not result in any change in the surveillance process with respect to the Covered Securities.
Nasdaq is able to obtain information regarding trading in the Covered Securities and the underlying futures through its members in connection with the proprietary or customer trades that such members effect on any relevant market. In addition, Nasdaq may obtain trading information via the Intermarket Surveillance Group (“ISG”) from other exchanges who are members or affiliates of the ISG, including the Chicago Board
Nasdaq will inform its members in Information Circulars of the special characteristics and risks associated with trading the Covered Securities. Specifically, the Information Circulars will discuss the following: (a) Applicable procedures for purchases and redemptions of Covered Securities; (b) Nasdaq Rule 2310, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in Covered Securities to customers; (c) how information regarding applicable intraday values is disseminated; (d) prospectus delivery requirements; and (e) trading information.
In addition, the Information Circulars will reference that the Covered Securities are subject to various fees and expenses described in their applicable Registration Statements. The Information Circulars will also reference the fact that there is no regulated source of last-sale information regarding physical commodities, and that the Commission has no jurisdiction over the trading of physical commodities such as aluminum, gold, crude oil, heating oil, corn, and wheat, or the futures contracts on which the value of the certain Covered Securities are based. The Information Circulars will describe the public availability of information about the Covered Securities and underlying indexes or prices. The Information Circular will also discuss any relief granted by the Commission or the staff from any rules under the Act.
In November 2006, the Commission approved Nasdaq Rule 4630 to govern the trading of Commodity-Based Trust Shares.
• A member acting as a registered market maker in a Commodity-Related Security will be obligated to establish adequate information barriers when such market maker engages in inter-departmental communications. For purposes of a Commodity-Related Security, “inter-departmental communications” are defined to include communications to other departments within the same firm or the firm's affiliates that involve trading in commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security.
• A member acting as a registered market maker in a Commodity-Related Security must file with Nasdaq Regulation in a manner prescribed by Nasdaq Regulation and keep current a list identifying all accounts for trading in commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security, that the market maker may have or over which it may exercise investment discretion.
• A member acting as a registered market maker in a Commodity-Related Security shall make available to Nasdaq Regulation such books, records, or other information pertaining to transactions by such entity or registered or non-registered employee affiliated with such entity for its or their own accounts for trading commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security, as may be requested by Nasdaq Regulation.
• In connection with trading a Commodity-Related Security or commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying a Commodity-Related Security, the member acting as a market maker in a Commodity-Related Security shall not use any material nonpublic information received from any person associated with the member or employee of such person regarding trading by such person or employee in the commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security.
The amended rule also requires members to provide a prospectus to all purchasers of a newly issued Commodity-Related Security. Finally, the amended rule stipulates that Nasdaq will file proposals under Section 19(b) of the Act before trading separate and distinct Commodity-Based Securities designated on different underlying commodity-related investments, and that the proposal filed with respect to particular Commodity-Related Security will specify the applicable trading hours for such Commodity-Related Security.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not
Written comments on the proposed rule change were neither solicited nor received.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
In addition, the Commission finds that the proposal is consistent with Section 12(f) of the Act,
The Commission further believes that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission notes that, if a Covered Security should be delisted by the listing exchange, the Exchange would no longer have authority to trade the Covered Security pursuant to this order.
In support of this proposal, the Exchange has made the following representations:
1. The Exchange's surveillance procedures are adequate to properly monitor Exchange trading of the Covered Securities.
2. Prior to the commencement of trading, the Exchange would inform its members in an Information Bulletin of the special characteristics and risks associated with trading the Covered Securities.
3. Prior to the commencement of trading, the Exchange would inform its members in an Information Bulletin the requirement that members deliver a prospectus to investors purchasing newly issued Covered Securities prior to or concurrently with the confirmation of a transaction.
This approval order is conditioned on the Exchange's adherence to these representations.
Exchanges that trade commodity-related securities generally have in place surveillance arrangements with markets that trade the underlying commodities. The Commission notes that the Exchange has indicated that it currently is in the process of entering into information-sharing agreements with the ICE Futures and the Kansas Board of Trade, as well as amending its current information sharing agreement with NYMEX. Although the Exchange has not finalized these agreements, the Commission believes nevertheless that the Exchange's proposal to trade the Covered Securities on a pilot basis is consistent with the Act in view of (1) the limited duration of the pilot period (three months), (2) the Exchange's representation that these information-sharing agreements would be complete “in the near future,” and (3) the fact that the Exchange must submit a proposed rule change addressing each Covered Security, to continue trading the securities after the expiration of the pilot period.
The Commission finds good cause for approving this proposal before the thirtieth day after the publication of notice thereof in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The NASD proposes to amend NASD Rules 4632C, “Transaction Reporting,” and 4632D, “Transaction Reporting,” to reflect “as/of” (T+1) trade reporting and the automated reporting of trade cancellations to the NASD/NSX Trade Reporting Facility (the “NASD/NSX TRF”) and the NASD/BSE Trade Reporting Facility (the “NASD/BSE TRF”), respectively. The proposed amendments are substantially identical to the current language of NASD Rule 4632, “Transaction Reporting,” relating to the NASD/Nasdaq Trade Reporting Facility (“NASD/Nasdaq TRF”), which the Commission approved on June 30, 2006.
In its filing with the Commission, the NASD included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Commission approved the establishment of the NASD/NSX TRF
Currently, the NASD/NSX TRF does not accept reports of trades on an “as/of” or next day (T+1) basis and the NASD/BSE TRF rules also do not contemplate the submission of “as/of” trade reports. The rules relating to the NASD/NSX TRF and the NASD/BSE TRF expressly provide that members must use an alternative electronic
In addition, members can only electronically report trade cancellations to the NASD/NSX TRF on trade date; members cannot electronically report cancellations on an “as/of” basis. The rules require that for trades that are cancelled after the day of the execution of the trade, members must contact NASD/NSX TRF Operations to report the trade cancellation.
The NASD proposes to amend NASD Rules 4632C and 4632D to reflect a change in the functionality of the NASD/NSX TRF and NASD/BSE TRF, respectively, to support the reporting of trades on an “as/of” (T+1) basis and the automated reporting of trade cancellations. The NASD believes that by providing for the reporting of “as/of” trades, the proposed rule change will enhance transparency and the integrity of the audit trail. Additionally, the NASD believes that by automating the reporting of trade cancellations, the proposed rule change will facilitate and streamline the correction of trades, as necessary.
The NASD anticipates that system testing and certification will be completed before the end of the first quarter of 2007. The NASD will announce the date that the system changes will be implemented on its Web site.
The NASD believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
The NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The NASD has designated the proposed rule change as one that: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. In addition, as required under Rule 19b-4(f)(6)(iii),
Pursuant to Rule 19b-4(f)(6)(iii) under the Act, a proposal does not become operative for 30 days after the date of its filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. The NASD has asked the Commission to waive the 30-day operative delay to allow the proposed rule changes to be operative when the system changes for “as/of” trade reporting and the automated reporting of trade cancellations have been completed. The NASD believes that these system changes may be completed prior to the end of the 30-day operative delay period, and that it is crucial for a complete and accurate audit trail and market transparency that the NASD/NSX TRF and the NASD/BSE TRF be able to process and report trade corrections as quickly as possible. The NASD believes that a delay in the implementation of this functionality would not be in the interests of investors.
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because the proposed changes could enhance the accuracy and integrity of the audit trail and facilitate the reporting of “as/of” trades and trade cancellations.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File No. SR-NASD-2007-016. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934,
Under the proposed rule change, NSCC will eliminate references to the Collateral Management Service (“CMS”) in its rules and procedures.
In its filing with the Commission, NSCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NSCC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NSCC has offered CMS to its members since 1995.
However, few NSCC members elected to use CMS because they can obtain access to CMS data by other means provided by NSCC. In addition, by the end of 2004, the Participating Clearing Entities had long ceased transmitting CMS data to NSCC, and the service had become dormant. Accordingly, NSCC will delete Rule 53 and Procedure XVI (Collateral Management Service), will delete all references to CMS from Rule 4, Section 9 (Clearing Fund), and will amend Rule 49 (Release of Clearing Data) to preserve NSCC's right to share clearing fund data with appropriate regulatory and self-regulatory organizations.
NSCC believes that the proposed rule change is consistent with Section 17A of the Act
NSCC does not believe that the proposed rule change will have any impact or impose any burden on competition.
NSCC has discussed the proposed rule change with Participating Clearing Entities but has not solicited or received written comments relating to the proposed rule change. NSCC will notify the Commission of any written comments it receives.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File No. SR-NSCC-2007-04. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange is proposing to amend Rule 15A.50 to describe how trade-throughs will be prevented on the Exchange in conformance with the Order Protection Rule (“OPR”)
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The NYSE proposes to amend Rule 15A.50 to reflect the circumstances under which the Exchange will automatically route orders to other market centers to prevent trade-throughs
The Exchange notes that it completed Phase IV of the Hybrid Market
The rule amendment proposed herein is intended to conform Rule 15A.50 in recognition of certain Phase IV changes that were made to Exchange trading systems to be consistent with the requirements of Rule 611 of Reg. NMS,
In addition, the NYSE has requested from the Commission limited no-action relief with respect to the Exchange's obligation to route orders, in accordance with amended Rule 15A.50, proposed herein, to protected quotations, as defined in Rule 600(b)(57) under the Act,
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2007-23. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice of request for public comments.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the
The Department will accept comments from the public up to 60 days from March 9, 2007.
You may submit comments by mail to the Office of Marine Conservation (OES/OMC), 2201 C Street, NW., Room 2758, Washington, DC 20520, or by facsimile at 202-736-7350.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed information collection and supporting documents, to Clayton Stanger, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Department of State, Washington, DC 20520-7818; telephone: 202-647-2335.
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper performance of our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.
Notice of request for public comments.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the
The Department will accept comments from the public up to 60 days from March 9, 2007.
You may submit comments by any of the following methods:
•
•
•
You must include the DS form number (if applicable), information collection title, and OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed information collection and supporting documents, to Andrea Lage of the Office of Visa Services, U.S. Department of State, 2401 E Street, NW., L-603, Washington, DC 20522, who may be reached at (202) 663-1221 or
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper performance of our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.
One of the goals of the Organization of American States is to harmonize private international law through Inter-American Specialized Conferences on Private International Law (CIDIP). The OAS has hosted these conferences every four to six years. Currently states are drafting instruments for “CIDIP-VII,” which will focus inter alia on consumer protection. States are currently reviewing a draft Brazilian treaty on choice of law, a Canadian draft model law on choice of law and jurisdiction, and a U.S. proposal for a model law on the availability of consumer dispute resolution and redress. OAS member states discussed the three proposals at an initial meeting held in Porto Alegre, Brazil in December. No dates have been set for future meetings, but the views of participating states have been requested.
The Department of State Advisory Committee on Private International Law (ACPIL) will hold a public meeting to review the results of the Porto Alegre meeting and to obtain views on the three proposals with regard to consumer protection.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by May 8, 2007.
You may submit comments identified by DOT DMS Docket Number FHWA-2007-27487 by any of the following methods:
•
•
•
•
For information regarding the Eisenhower Transportation Fellowship Program, contact Gwen Sutton, 703-235-0535, Office of Professional and Corporate Development, Federal Highway Administration, Department of Transportation, 4600 N. Fairfax Drive, Suite 800, Arlington, VA 22203. Office hours are from 8 a.m. to 5 p.m., Monday through Friday, except Federal holidays. For information regarding the National Highway Institute, contact Ann Gretter, 703-235-1260 or Heather Shelsta, 703-934-3436, National Highway Institute, Federal Highway Administration, Department of Transportation, 4600 N. Fairfax Drive, Suite 800, Arlington, VA 22202. Office hours are from 8 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice of meeting of advisory committee.
This document announces a meeting of the National Safe Routes to School Task Force to the Secretary of Transportation. This is the second meeting of the Task Force. The purpose of the Task Force is to advise the Secretary of Transportation, through the Federal Highway Administration (FHWA) Office of Safety, on strategies to advance Safe Routes to School (SRTS) Programs nationwide and to encourage children, including those with disabilities, to walk and bicycle to school pursuant to Section 1404(h) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, Aug. 10, 2005). This meeting is open to the public and will have time allocated for public testimony. The public is welcome to present written or oral comments to the Task Force.
The second meeting of the Task Force is scheduled for April 19, 2007, from 8:30 a.m. to 5 p.m., e.t.
The meeting will be held at The Holiday Inn Capitol, 550 C Street, SW., Washington, DC 20024.
Mr. Tim Arnade, the Designated Federal Official, Safe Routes to School Program Manager, FHWA Office of Safety Programs, (202) 366-2205 (
Section 1404 of SAFETEA-LU required the Secretary of Transportation to establish a Safe Routes to School (SRTS) Program. The purpose of the program is to enable and encourage children, including those with disabilities, to walk and bicycle to school and to make bicycling and walking to school a safer and more appealing transportation alternative. Section 1404(h) requires the establishment of a National SRTS Task Force. This is the second meeting of the Task Force. The first meeting was held on January 11, 2007, in Washington, DC. All 17 members of the Task Force attended the first meeting. Complete meeting minutes from the first meeting are posted on the Web site listed below.
The agenda for the second meeting will include discussion of strategies to advance SRTS programs nationwide and discussion of a draft outline for a report to the Secretary of Transportation. Public comments will be taken at approximately 2:45 p.m. e.t. Further information about the Task Force can be found at
The second meeting of the National Safe Routes to School Task Force will be held on April 19, 2007, at the Holiday Inn Capitol, 550 C Street, SW., Washington, DC 20024, from 8:30 a.m. to 5 p.m., e.t.
Federal Railroad Administration, DOT.
Notice of OMB approvals.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590 (telephone: (202) 493-6292), or Ms. Gina Christodoulou, Office of Support Staff, RAD-43, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493-6139). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Pub. L. 104-13, § 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to display OMB control numbers and inform respondents of their legal significance once OMB approval is obtained. The following new FRA information collections were approved within the past twelve months: (1) OMB No. 2130-0010, Track Safety Standards (Continuous Welded Rail) (49 CFR 213) (Final Rule) (Form FRA F 6180.124). The expiration date for this information collection is January 31, 2010. (2) OMB No. 2130-0035, Railroad Operating Rules (49 CFR 217) (NPRM). The expiration date for this information collection is December 31, 2009. (3) OMB No. 2130-0544, Passenger Equipment Safety Standards (49 CFR 216, 229, and 238) (Final Rule). The expiration date for this information collection is December 31, 2009. (4) OMB No. 2130-0560, Use of Locomotive Horns at Highway-Rail Grade Crossings (49 CFR Parts 222 and 229) (Amendments to Final Rule). The expiration date for this information collection is October 31, 2009. (5) OMB No. 2130-0564, Locomotive Crashworthiness (49 CFR 238) (Final Rule). The expiration date for this information collection is May 31, 2008. (6) OMB No. 2130-0571, Occupational Noise Exposure for Railroad Operating Employees (49 CFR 227 and 229). The expiration date for this information collection is January 31, 2009.
The following information collections were re-approved within the past year: (1) OMB No. 2130-0005, Hours of Service Regulations (49 CFR 228) (Form FRA F 6180.3). The new expiration date for this information collection is November 30, 2009. (2) OMB No. 2130-0006, Railroad Signal System Requirements (49 CFR 233, 235, 236) (Forms FRA F 6180.14; FRA F 6180.47). The new expiration date for this information collection is August 31, 2009. (3) OMB No. 2130-0008, Inspection Brake System Safety Standards for Freight and Other Non-Passenger Trains and Equipment (49 CFR 232). The new expiration date for this information collection is January 31, 2010. (4) OMB No. 2130-0017, U.S. DOT Crossing Inventory Form (Form FRA F 6180.71). The new expiration date for this information collection is August 31, 2009. (5) OMB No. 2130-0035, Railroad Operating Rules (49 CFR 217). The new expiration date for this information collection is September 30, 2009. (6) OMB No. 2130-0502, Filing of Dedicated Cars (49 CFR 225). The new expiration date for this information collection is September 30, 2009. (7) OMB No. 2130-0506, Identification of Cars Moved in Accordance with Order 13528 (49 CFR 232). The new expiration date for this information collection is March 31, 2009. (8) OMB No. 2130-0509, State Safety Participation Regulations and Remedial Actions (49 CFR 209) (Forms FRA F 619.33/61/67/96/96a/109/110/111/112). The new expiration date for this information collection is November 30, 2009. (9) OMB No. 2130-0516, Remotely Controlled Switch Operations (49 CFR 218). The new expiration date for this information collection is September 30, 2009. (10) OMB No. 2130-0519, Bad Order and Home Shop Card (49 CFR 225). The new expiration date for this information collection is September 30, 2009. (11) OMB No. 2130-0520, Stenciling Reporting Mark on Freight Cars (49 CFR 215). The new expiration date for this information collection is September 30, 2009. (12) OMB No. 2130-0523, Rear-End Marking Devices (49 CFR 223). The new expiration date for this information collection is September 30, 2009. (13) OMB No. 2130-0525, Certification of Glazing Materials (49 CFR 223). The new expiration date for this information collection is February 28, 2010. (14) OMB No. 2130-0527, Locomotive Certification (Noise Compliance Regulations) (49 CFR 210). The new expiration date for this information collection is September 30, 2009. (15) OMB No. 2130-0529, Disqualification Proceedings (49 CFR Part 209). The new expiration date for this information collection is February 28, 2010. (16) OMB No. 2130-0534, Grade Crossing Signal System Safety (49 CFR Part 234) (Form FRA F 6180.83). The new expiration date for this information collection is September 30, 2009. (17) OMB No. 2130-0535, Bridge Worker Safety Rules (49 CFR Part 214). The new expiration date for this information collection is September 30, 2009. (18) OMB No. 2130-0537, Railroad Police Officers (49 CFR Part 207). The new expiration date for this information collection is September 30, 2009. (19) OMB No. 2130-0568, FRA Emergency Order No. 24. The new expiration date for this information collection is August 31, 2009.
Persons affected by the above referenced information collections are not required to respond to any collection of information unless it displays a currently valid OMB control number. These approvals by the Office of Management and Budget (OMB) certify that FRA has complied with the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and with 5 CFR 1320.5(b) by informing the public about OMB's approval of the information collection requirements of the above cited regulations and forms.
44 U.S.C. 3501-3520.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel MYSTIQUE.
As authorized by Pub. L. 105-383 and Pub. L. 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2007-27422 at
Submit comments on or before April 9, 2007.
Comments should refer to docket number MARAD-2007-27422. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, MAR-830 Room 7201, 400 7th Street, SW., Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel MYSTIQUE is:
Anyone is able to 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 DOT's complete Privacy Act Statement in the
By order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel RENDEZVOUS.
As authorized by Pub. L. 105-383 and Pub. L. 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2007-27421 at
Submit comments on or before April 9, 2007.
Comments should refer to docket number MARAD-2007-27421. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, MAR-830 Room 7201, 400 Seventh Street, SW., Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel RENDEZVOUS is:
Anyone is able to 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 DOT's complete Privacy Act Statement in the
By order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), DOT.
Meeting announcement.
This notice announces the Sixteenth Public Meeting of members of the Crash Injury Research and Engineering Network. CIREN is a collaborative effort to conduct research on crashes and injuries at eight Level 1 Trauma Centers across the United States linked by a computer network. Researchers can review data and share expertise, which may lead to a better understanding of crash injury mechanisms and the design of safer vehicles. Eight presentations on current research based on CIREN cases will be presented. The agenda will be posted to the CIREN Web site
The meeting is scheduled from 8:30 a.m. to 4 p.m. on Wednesday, March 28, 2007.
The meeting will be held at: Department of Transportation, 400 Seventh Street, SW., Room 6200, Washington, DC 20590.
CIREN cases may be viewed from the NHTSA/CIREN Web site at:
Should it be necessary to cancel the meeting due to inclement weather or to any other emergencies, a decision to cancel will be made as soon as possible and posted immediately on CIREN's Web site
National Highway Traffic Safety Administration, (NHTSA), Department of Transportation.
Denial of a petition for a defect investigation.
This notice sets forth the reasons for the denial of a petition (Defect Petition DP06-003) submitted on August 24, 2006 by Mr. William B. Jeffers III of Garner, North Carolina to NHTSA's Office of Defects Investigation (ODI), requesting that the agency commence a proceeding to determine the existence of a defect related to motor vehicle safety in model year (MY) 2002 to 2006 Toyota Camry and Camry Solara vehicles (the “subject vehicles”) for incidents relating to vehicle engine surging.
After reviewing the concerns raised by the Petitioner and other information, NHTSA has concluded that further expenditure of the agency's investigative resources on the issues raised by the petition is not warranted. The agency, accordingly, has denied the petition.
Mr. Scott Yon, Vehicle Control Division, Office of Defects Investigation, NHTSA, 400 7th Street, SW., Washington, DC 20590. Telephone 202-366-0139.
The Petitioner owns a MY 2006 Toyota Camry with a 4-cylinder engine that was purchased new in January 2006. The Petitioner also previously owned a MY 2005
In September 2006, the Petitioner's MY 2006 vehicle was serviced by a Toyota dealership. The dealership determined that two diagnostic trouble codes (P-codes) related to the operation of the throttle actuator,
On October 3, 2006 ODI personnel met with the Petitioner in Raleigh, NC to assess his current vehicle.
During the October 2006 meeting, ODI and the Petitioner discussed the Toyota dealership's determination that his throttle actuator should be replaced. An agreement was made to schedule the next service visit so that the removed (suspect) throttle actuator could be retained for further analysis. After the repair, ODI arranged with Toyota to have the suspect throttle actuator sent to a facility owned by the component supplier, Aisan Industry Co., Ltd. An analysis was conducted which included a physical inspection (including X-ray), mechanical testing, electrical testing, environmental testing, and destructive tear down. Aisan's final investigation report,
In late October 2006, ODI issued an Information Request (IR) letter
Toyota's IR response
ODI attempted but was unable to conduct an interview with the current owner of the Petitioner's MY 2005 Camry to determine if the surging happened again. However, that vehicle (which we know by its vehicle identification number) does not appear in Toyota's warranty claim data or in NHTSA's Vehicle Owner Questionnaire complaint database.
The electronic throttle control (ETC) system of Toyota vehicles in model years immediately prior to that of the Petitioner's current vehicle has been the subject of earlier agency investigations and petitions. Preliminary Evaluation PE04-021 (prompted by DP04-003), which ODI closed without identification of a defect trend, involved allegations that the ETC system failed to properly control engine speed resulting in vehicle surge.
In summary, after review and analysis of the available information, ODI has not identified a vehicle-based defect that would have produced the alleged engine surge in the Petitioner's vehicle, nor was it able to witness such an event when road testing the Petitioner's vehicle.
In view of the foregoing, it is unlikely that NHTSA would issue an order for the notification and remedy of a safety-related defect as alleged by the Petitioner in the subject vehicles at the conclusion of the requested investigation. Therefore, in view of the need to allocate and prioritize NHTSA's limited resources to best accomplish the agency's safety mission, the petition is denied. This action does not constitute a finding by NHTSA that a safety-related defect does not exist. The agency will take further action if warranted by future circumstances.
49 U.S.C. 30162(d); delegations of authority at CFR 1.50 and 501.8.
Office of the Secretary, DHS.
Notice of proposed rulemaking.
The Department of Homeland Security is proposing to establish minimum standards for State-issued driver's licenses and identification cards that Federal agencies would accept for official purposes after May 11, 2008, in accordance with the REAL ID Act of 2005. This rule proposes standards to meet the minimum requirements of the REAL ID Act of 2005, including: information and security features that must be incorporated into each card; application information to establish the identity and immigration status of an applicant before a card can be issued; and physical security standards for locations where driver's licenses and applicable identification cards are issued.
Submit comments by May 8, 2007.
You may submit comments, identified by the DHS docket number DHS-2006-0030 that corresponds to this rulemaking, using any one of the following methods:
• Federal Rulemaking Portal:
• Fax: 866-466-5370.
• Mail: Paper, disk or CD-ROM submissions can be mailed to the Department of Homeland Security, Attn: NAC 1-12037, Washington, DC 20528.
Darrell Williams, REAL ID Program Office, Department of Homeland Security, Washington, DC 20528 (202) 282-9829.
The Department of Homeland Security (DHS) invites interested persons to participate in this rulemaking by submitting written comments or data, and has requested comments on specific portions of this rulemaking as described in section VI below. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this rulemaking action. See
With each comment, please include your name and address, identify the docket number at the beginning of your comments, and give the reason for each comment. The most helpful comments reference a specific portion of the rulemaking, explain the reason for any recommended change, and include supporting data. You may submit comments and material electronically, by fax, or by mail as provided under
If you want DHS to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
DHS will file in the public docket all comments received by DHS, except for comments containing confidential information and sensitive security information (SSI).
Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in the
Upon receipt of such comments, DHS will not place the comments in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. DHS will hold them in a separate file to which the public does not have access, and place a note in the public docket that DHS has received such materials from the commenter. If DHS receives a request to examine or copy this information, DHS will treat it as any other request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Department of Homeland Security's (DHS’) FOIA regulations found in 6 CFR part 5.
Please be aware that anyone is able to 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 applicable Privacy Act Statement published at www.regulations.gov. You may also review the comments in the public docket on the Internet at
You can get an electronic copy using the Internet by—
(1) Searching on www.regulations.gov by docket number or title, or
(2) Accessing the Government Printing Office's Web page at
In addition, copies are available by writing or calling the individual in the
The REAL ID Act of 2005
The Act sets forth minimum document requirements, minimum driver's license and identification card issuance standards, and other requirements, including the following—
• Information and features that must appear on the face of the driver's license or identification card, and inclusion of a common machine-readable portion of a driver's license or identification card;
• Presentation and verification of information an applicant must provide before a driver's license or identification card may be issued, including evidence that the applicant is a U.S. citizen or has lawful status in the United States;
• Physical security of locations where driver's licenses and identification cards are produced, the security of document materials and papers from which driver's licenses and identification cards are produced, and the background check of certain employees involved in the manufacture and production of licenses, and;
• Physical security of the driver's licenses and identification cards to prevent tampering, counterfeiting, and duplication of the documents for a fraudulent purpose.
The Act also permits a State otherwise in compliance with the Act to issue driver's licenses and identification cards that do not conform to the Act's requirements. Such driver's licenses and identification cards, however, cannot be used for an official purpose and must clearly state on the face of the card that a Federal agency may not use it for an official purpose. The State also must use a unique design or color indicator so that it is readily apparent to Federal agency personnel that the card is not to be accepted for an official purpose.
Section 203 of the Act amends 18 U.S.C. 1028(a) to establish a Federal criminal penalty for persons who knowingly traffic in actual authentication features for use in fraudulent identification cards.
Section 205(a) of the Act requires that any regulations, standards, or grants under the Act be carried out in consultation with the Secretary of Transportation and the States. DHS has met and consulted with the Department of Transportation (DOT), and formed an interagency work group to develop these proposed regulations. DOT and other Federal agencies with an interest in this rulemaking participated actively in the work group.
DHS has also consulted with State officials and State representative associations in the development of this proposed rule through meetings and conference calls in 2005 and 2006. Many States and State representative associations participated in these events and submitted written comments for consideration in the development of this proposed rule. These are available for inspection in the public docket.
In particular, DHS received comments from the National Governors
One of the first issues of concern to the States was the brief period for compliance. There was concern that DHS would interpret the Act in such a way as to require that all driver's licenses and identification cards nationally be brought into compliance with the Act by May 2008, an impossible task according to the States. The States instead suggested a “date forward” approach, which we have proposed to adopt as a phase-in period through May 2013.
The detailed requirements of the Act, particularly requirements for original documents and proof of principal residence, also raised State concerns that individuals, through no fault of their own, might not be able to meet certain requirements of the Act. The States advocated for an exceptions process to accommodate certain circumstances (victims of natural disasters such as Hurricanes Katrina and Rita who no longer have certain documents, or elderly individuals with no birth certificate, for example). We understand these concerns and therefore propose that the States adopt an exceptions process in their Departments of Motor Vehicles (DMVs) that will be monitored by the State and included as part of the State's certification process to DHS. This exception process would include any difficulties arising from attempts to verify birth information for individuals born before 1935, who, due to various considerations, may not have been issued birth certificates.
The Act requires States to subject certain individuals involved in the manufacture and production of driver's licenses and identification cards to appropriate background checks. The States have suggested to DHS that, due to the unique structure of each State's DMV system, the identification of positions that should be subject to this requirement be left up to the States. DHS agrees with this proposal. The States have also proposed that new hires be allowed to begin work at the DMVs while their background check is pending. DHS understands that the States must have flexibility in their hiring, and therefore proposes that States place new employees in positions that are not subject to the background check until the check is complete and satisfaction of employment conditions for the covered position is determined.
The States have indicated to DHS that the Act will lead to an increase in the number of required in-person visits to DMVs. Generally speaking, the States have sought to utilize alternate service channels (particularly the internet and services by mail) to reduce the required number of in-person visits to DMVs, as a means of reducing State costs and improving service to customers. The States have, therefore, expressed particular concerns with the renewal process under REAL ID. DHS understands these concerns and is therefore proposing that States continue their remote renewal procedures, as long as they establish a procedure to verify the identity of individuals applying for renewal remotely, maintain images of the source documents the individual used to obtain a REAL ID driver's license or identification card, and establish a procedure to re-verify the information on the source documents retained by the State. DHS proposes, however, that individuals with temporary REAL ID driver's licenses or temporary identification cards renew their documents in person, in order to present evidence of continued lawful status.
DHS proposes to issue REAL ID regulations that create minimum standards for State driver's licenses and identification cards that Federal agencies can accept for official purposes on or after May 11, 2008. Under this proposal, States must certify that they are in compliance with these requirements, and DHS must concur, before the driver's licenses and identification cards that the States issue may be accepted by Federal agencies for official purposes on or after May 11, 2008. Because DHS recognizes that not all driver's licenses and identification cards can be reissued by May 11, 2008, the proposal provides a five-year phase-in period for driver's license or identification card renewals. All driver's licenses and identification cards that are intended to be accepted for official purposes as defined in these regulations must be REAL ID licenses and identification cards by May 11, 2013
Key features of the proposal include:
•
•
•
•
•
•
•
•
The Act does not require any State to issue REAL ID driver's licenses and identification cards. States may choose to issue driver's licenses and identification cards that cannot be accepted by Federal agencies for official purposes (referred to in this document as “non-REAL ID driver's licenses and identification cards”). This proposed rule would apply to States and territories that choose to issue driver's licenses and identification cards that Federal agencies can accept for official purposes. Consistent with section 202(d)(11) of the Act, this rule also proposes requirements for issuance of non-REAL ID driver's licenses (as well as non-REAL ID identification cards) by States in compliance with the Act. Under this proposed rule, individuals can hold only one valid REAL ID driver's license or identification card at a time.
DHS understands that at present an individual may hold active driver's licenses in multiple jurisdictions. Although DHS is not regulating issuance of non-REAL ID driver's licenses beyond what is required in the REAL ID Act, DHS wishes to further the concept of “one driver, one record, one record of jurisdiction” and seeks comment on how the REAL ID Act may be implemented to discourage the issuance of multiple non-REAL ID driver's licenses to an individual, or what steps States can take to ensure individuals are not holding multiple driver's licenses from multiple States.
Section 201(3) of the Act provides that the term “official purpose” “includes but is not limited to accessing Federal facilities, boarding Federally-regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary shall determine.” DHS proposes to limit the regulatory definition of “official purpose” at this time, to those purposes expressly stated in the Act—accessing Federal facilities, boarding commercial aircraft, and entering nuclear power plants. DHS, under the discretionary authority granted to the Secretary of Homeland Security under the Act, may expand this definition in the future. DHS seeks comment on the proposed scope of “official purpose,” and how DHS could expand this definition to other federal activities.
DHS considered including the acquisition of Federally-issued identification documents, such as a Transportation Worker Identification Card (TWIC), military Common Access Card (CAC), passport, or PASSport card within the proposed definition of “official purpose.” To do so would be consistent with the concept of strengthening the reliability of identity documents, one of the primary objectives of the Act. However, since no State would be required to have all of its citizens possess Real ID driver's licenses and identification cards until May 2013, DHS concluded that it would be premature to require Federal agencies to accept only Real ID driver's licenses and identification cards during the phase-in period and that the imposition of such a requirement could inhibit individuals from obtaining these necessary forms of Federal identification.
Federal agencies themselves do not currently examine identification from all individuals seeking to board regulated commercial aircraft or to enter nuclear power plants. In the case of aircraft, often it is aircraft operators that examine driver's licenses or other identification credentials of individuals seeking entry to the sterile area of an airport. However, they do so in compliance with requirements in security programs issued pursuant to TSA regulations. DHS interprets the language of the REAL ID statute to mean that when nongovernmental entities require identification for the scope of activities considered “official purposes” in compliance with Federal requirements, and an individual presents a driver's license or DMV-issued identification card, the REAL ID Act's federal acceptance requirements would also apply to these nongovernmental entities.
These regulations are not intended to change current admittance practices at Federal facilities. If a Federal facility does not currently require presentation of photo identification prior to entry, the Act and these proposed regulations would not require that process to change. Similarly, if a Federal facility currently accepts identification other than a State-issued driver's license or identification card, the Act and these proposed regulations do not require that the agency refuse to accept such other forms of identification. If the individual intends to use a State-issued driver's license or identification card, however, it must be one that is issued by a State that is complying with the REAL ID Act.
Throughout this proposed rule, driver's licenses and identification cards issued under these regulations that Federal agencies may accept for official purposes are referred to as “REAL ID driver's licenses and identification cards.” The term “REAL ID driver's licenses and identification cards” includes driver's licenses and identification cards issued by State DMVs (or other State agencies with comparable responsibility for issuing driver's licenses and identification cards) to U.S. citizens and Lawful Permanent Residents (LPRs) of the United States for a maximum renewable period of eight years. The term “REAL ID driver's licenses and identification cards” also includes driver's licenses and identification cards acceptable for official purposes that are issued to aliens legally present in the United States for a finite period of time, upon verification of their current lawful status for the period of their authorized length of stay, or for one year, if no length of stay is specified. In instances where the proposed regulation discusses these temporary driver's licenses and identification cards independently, these types of REAL ID licenses and identification cards are referred to as “temporary REAL ID driver's licenses and identification cards.”
Section 201(2) of the Act defines “identification card” to mean “a personal identification card, as defined in section 1028(d) of title 18 United States Code, issued by a State.” In turn, 18 U.S.C. 1028(d) defines this term, in pertinent part, to mean “a document made or issued by or under the authority of * * * a State [or] a political subdivision of a State * * * which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals[.]” Section 201(2), by its express terms, could cover any identification card issued by or under the authority of a State, including identification cards for State-chartered universities and colleges, and cards issued by State agencies to obtain public benefits. At this time, DHS is limiting the scope of this definition to identification cards issued by State
DHS believes that these additional documents mentioned above are not currently accepted as identification documents to the same degree as State-issued driver's licenses and identification cards issued by a State DMV. In addition, it would be unduly burdensome at this time for DHS to require that the issuers of these additional documents comply with these proposed standards, since DMVs have been considering the Act's requirements for some time, and it is likely that universities and other State entities have not.
Section 202(a)(3) of the Act provides that, “[b]eginning 3 years after the date of enactment of this division, a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a State to any person unless the State is meeting the requirements of this section.” The Act further states that DHS “shall determine whether a State is meeting the requirements of [the Act] based on certifications made by the State to the Secretary.”
Accordingly, DHS proposes the following compliance requirements:
(1) Each State must submit its certification package to DHS on its REAL ID driver's license and identification card programs no later than February 10, 2008, 90 days before the May 11, 2008 compliance date required under the Act. DHS strongly encourages States to communicate their intent to certify compliance or request an extension by October 1, 2007;
(2) DHS will not find that a State is meeting the requirements of the Act if the State's certification does not demonstrate that the all REAL ID driver's licenses and identification cards issued by the State on or after May 11, 2008, will meet the standards required under the Act and proposed under these regulations, unless the State has sought and received an extension;
(3) For unexpired driver's licenses and identification cards issued prior to May 11, 2008, DHS proposes a five-year phase-in period to allow individuals to apply for and receive new driver's licenses and identification cards that comply with these rules. These driver's licenses and identification cards would be acceptable for official purposes until they expire, or until the phase-in period ends, on May 10, 2013—whichever is earlier. Driver's licenses and identification cards issued before May 11, 2008 that do not expire until after the phase-in period ends would have to be exchanged for driver's licenses and identification cards issued under the new rules in order to be accepted by Federal agencies for official purposes after May 10, 2013.
If a driver's license or identification card that would not otherwise expire until after May 11, 2008 needs to be reissued by a State prior to its expiration date, DHS is proposing that the driver's license or identification card must meet the new standards at the time it is reissued. This reissuance would occur, for example, if a driver's license or identification card has been lost or stolen and needs to be replaced, or if changes in information occur which would cause the DMV to issue a new driver's license or identification card.
Under section 205(b) of the Act, DHS may grant an extension of time to meet the requirements of the Act if the State provides adequate justification. DHS recognizes that many States need a final rule in order to guide their implementation efforts. Many States have informed DHS that, absent sufficient time to consider and act upon the final rule, the States will not be in a position to comply with the Act and the final rule. In recognition of this fact, DHS is establishing a mechanism where States can request an expedited extension of the compliance deadline. States may request an extension based on the lack of a final REAL ID rule by filing such a request no later than October 1, 2007. Based on information already received by DHS, and absent extraordinary circumstances, an extension request will be deemed justified for a period lasting until, but not beyond, December 31, 2009.
Under this provision of the Act, DHS also intends to issue compliance guidance to the States. This guidance will set forth benchmarks or best practices against which progress toward full compliance will be measured and to assist States in drafting the certification packages. As proposed in this rule, DHS would require submission of certifications no later than February 10, 2008, but the Department strongly encourages States to submit certification packages by October 1, 2007. State certification packages should include milestones, schedules, and estimated resources needed to meet all the requirements of the final rule no later than May 11, 2008. States will resubmit and DHS will re-evaluate State plans on an annual basis until all requirements of this rule are met. DHS welcomes comments from the States on appropriate benchmarks for measuring progress toward meeting the requirements of this rule and on specific resource and schedule constraints in meeting these benchmarks.
The public has long been accustomed to providing personal information for the purpose of obtaining driver's licenses and identification cards and to having this information printed on driver's licenses. Most States already include this information in a machine readable technology (MRT). With the enactment of the REAL ID Act, however, there has been increased attention to the privacy ramifications involving the information that will appear on the licenses and identification cards and the exchange of information. Some have raised concerns that the Act could create an increased risk of identity theft and erode privacy, or be a stepping-stone to a national identity card.
A frequently-heard concern relates to the amount of additional information the Federal Government will have about driver's license holders and what the Federal Government will do with that data. In fact, however, neither the Real ID Act nor these proposed regulations gives the Federal Government any greater access to information than it had before. Moreover, there is no information about a licensee that the Federal Government will store that it is not already required to store.
As described below, DHS has sought to address these privacy concerns within the limits of its authority under
This section of the NPRM will summarize the requirements of the Act that potentially have the greatest impact on privacy, the extent to which those requirements change current State driver's licensing practices, and how DHS intends to address privacy concerns regarding the Act. This analysis will address the three key privacy issues posed by the Act: (1) The connectivity of the databases; (2) the protection of the personal information stored in the State databases; and (3) the protection of the personal information stored on machine readable technology on the DL/IDs. We invite comments on whether the steps outlined below and otherwise discussed within the NPRM are appropriate and adequate.
One voiced privacy concern regarding the Act is that it will create a national identity card and centralized database on all drivers. This concern stems from the provisions in the Act requiring that the individual States electronically verify application information against Federal databases and provide State-to-State access to verify that each applicant only holds a valid license in one jurisdiction. DHS envisions that the operation of both the State data query of Federal reference databases and the State-to-State data exchanges will be left to the States, as is currently the practice in driver's licensing.
As discussed below and in section II.E.6 of the NPRM, the recommended architecture for implementing these data exchanges does not create a national database, because it leaves the decision of how to conduct the exchanges in the hands of the States. Moreover, no Federal agency will operate the data exchanges affecting non-commercial driver's licensing.
a.
As described in section II.E., many State DMVs already access one or more of these databases as part of their current licensing processes. The fact, however, that this data verification may now be done by all 56 jurisdictions heightens privacy concerns. The proposed rule seeks to address many of these issues by leaving the operation of this data query, including the development of the business rules, to the States. The rule proposes to require individual States to document their business rules for reconciling data quality and formatting issues and urges States to develop best practices and common business rules by means of a collective governance structure.
A very important example of how administration of this data query will be left to the States is the commitment by DHS to support the development of a “federated querying service” to enable the States to access the Federal reference databases in a timely, secure, and cost-effective manner. (See section II.E.6.) Most States already query some of these reference databases either directly or indirectly through a portal provided by AAMVA. DHS is committed to the expedited development and deployment of a common querying service to facilitate the State DMV queries for REAL ID data verification.
To address the privacy concerns posed by such a service, the NPRM makes clear that this service will only enable State DMVs to query Federal systems. The purpose of this federated querying service will be to minimize the impact of data verification on State DMV business processes and reduce the costs of data access. So while DHS will support the development of a querying service, it will not operate this service.
Moreover, use of this federated querying service will be voluntary, and States may choose to maintain or establish direct access to the reference databases; combine direct access with partial use of a common service; or verify applicant data against the reference databases in some other manner. The proposal by DHS to leave the operation of licensing verification with the States should resolve concerns about a centralized database operated by the Federal Government.
In addition, as part of the State certification mandated by section 202(a)(2) of the Act, each State will be required to prepare a comprehensive security plan for its DMV offices and driver's license storage and production facilities, databases, and systems utilized for collecting, disseminating or storing information used in the issuance of REAL ID licenses. As part of this requirement, DHS will require that each State include in its annual certification information as to how the State will protect the privacy of the data collected, used, and maintained in connection with REAL ID, including all the source documents.
b.
As described in section II.E., below, although the REAL ID Act creates a requirement for this State-to-State data exchange, such an exchange already exists under the Department of Transportation's (DOT) rules and regulations governing commercial driver's licenses (CDLs) and State connections to the National Driver Register (NDR)/Problem Driver Pointer System (PDPS) and the Commercial Driver's License Information System (CDLIS).
A State uses both the NDR/PDPS and CDLIS to check a driver's record, and CDLIS to make certain that the applicant does not already have a CDL. Under these programs, as well as the REAL ID Act, the primary purpose of the State-to-State data exchange is to determine if the applicant is unqualified and the application fraudulent; the purpose is not specifically to verify the applicant's identity.
The existing State-to-State data exchange among DMVs, while focused on commercial driver's licensing, also impacts non-commercial license applicants, as States are currently required to run all license applicants against the PDPS and CDLIS, which are both pointer systems that collect limited information from each State in order to match against the incoming inquiries. Both systems offer some mandatory privacy protections. The PDPS is subject to Federal regulations 23 CFR 1327.1
DHS intends to work closely with the DOT, AAMVA, and the States to fulfill the requirements for State-to-State data exchange under the REAL ID Act, while also supporting privacy protections for this exchange. It has not been determined whether CDLIS or some other service will be the platform for the State-to-State exchange, but regardless of the platform, it will be necessary for the States, working with DHS and DOT, to define the privacy protections for any State-to-State data exchange. DHS and DOT will collaborate with states on the privacy protections and access provisions for any State-to-State data exchange.
For example, with support from the DHS Privacy Office, representatives of the DMVs of California, Iowa, Massachusetts, and New York formed a Federation in July 2006 to identify a collective governance structure for the State-to-State data exchange and to begin to develop business rules, including privacy protections. This Federation has recently joined with the AAMVA REAL ID Steering Committee to develop an independent governance structure for the State-to-State data exchange. The development of privacy protective business rules, standards, and governance mechanisms will be central to ensuring that the privacy of license holders is protected.
As discussed at the outset of this section, the DPPA only addresses disclosure of motor vehicle record information but does not address the security of the motor vehicle record information or databases. The REAL ID Act, however, calls for DHS to issue regulations that “ensure the physical security of locations where licenses and identification cards are produced and the security of document materials and papers from which driver's licenses and identification cards are produced.”
DHS believes that this language provides authority for it to define basic security program requirements to ensure the integrity of the licenses and identification cards. The NPRM, therefore, proposes that each State submit as part of the REAL ID Act certification process a written, comprehensive, security plan. This requirement provides an important safeguard for the personal information collected, maintained, and used by State motor vehicles offices, and it will help assure the public that their information is being handled appropriately. (See NPRM section II.K., below.)
As part of its security plan, each State is also required to outline how the State will protect the privacy of personal information collected, disseminated or stored in connection with the issuance of REAL ID licenses from unauthorized access, misuse, fraud, and identity theft. Each State must prepare these plans to cover all State DMV offices and driver's license storage and production facilities, databases and systems and submit them as part of its comprehensive security plan.
The State's certification should demonstrate that it has implemented best practices to protect the privacy of the license holder as guided by the fair information principles, which call for openness, individual participation (access, correction, and redress), purpose specification, data minimization, use and disclosure limitation, data quality and integrity, security safeguards, and accountability and auditing. These principles are widely recognized and embodied in numerous Federal, State, and international law and codes of practice.
DHS requests comments on recommended best practices for protecting the privacy of the personal information stored in the various State motor vehicle databases pertaining to the requirements under this Act.
The REAL ID Act standardizes the minimum personal information on REAL ID driver's licenses and identification cards, and mandates a machine readable technology. DHS is sensitive to the privacy concerns raised by the potential for non-governmental third parties to collect and use the personal information on REAL ID driver's licenses and identification cards. As discussed in sections II.H.7-9, DHS is recommending that States use the PDF-417 2D bar code and DHS leans toward recommending that States protect the personally identifiable information stored in this 2D bar code by requiring encryption, if the operational complexity of deploying a nationwide encryption infrastructure to process access by law enforcement can be addressed.
In summary, DHS has proposed the following privacy protections in its implementing regulations for the REAL ID Act: (1) The State-to-State data exchanges and the State data query of Federal reference databases will be State operated and governed; (2) as part of the State certification process, States will be required to submit a comprehensive security plan, including information as to how the State implements fair information principles; and (3) while acknowledging the benefits of employing encryption of the personal information stored on the identification cards, we invite comment on its feasibility and costs and benefits to ensure that its costs do not outweigh the benefits to privacy.
These protections are intended to serve as a floor and do not prevent the States from using their own statutory or executive authority to provide additional privacy protections, consistent with Federal law, for the personal information stored on the REAL ID licenses and in their databases. DHS intends to work closely with the States as they develop the information
DHS believes that protecting the privacy of the personal information associated with implementation of the REAL ID Act is critical to maintaining the public trust that Government can provide basic services to its citizens while preserving their privacy. DHS recognizes the significant privacy issues that are associated with the Act. The public is encouraged to comment on the privacy and security issues associated with implementation of the Act in order to ensure that the final rule implementing this statute reflects sufficient public input on these important issues, which could include the requirements of State comprehensive security plans; access to information collected by States pursuant to the REAL ID Act and the protection of such information stored in State databases; and the operation and governance of electronic verification by States of driver's license application information.
Section 202(c)(1) and (2) of the Act requires that States issuing REAL ID driver's licenses and identification cards obtain and verify from applicants documentation establishing—
(1) The applicant's identity, through a photo identity document, or a non-photo identity document that includes full legal name and date of birth if a photo identity document is not available;
(2) Date of birth;
(3) Proof of SSN or ineligibility for an SSN;
(4) The applicant's address of principal residence; and
(5) Lawful status in the United States.
Currently, every State has a different list of the kind and number of acceptable identification documents. Many are voluminous, encompassing 40 or 50 different types of documents. Many States utilize a “points” system where a combination of documents accumulating a sufficient number of “points” is deemed sufficient. Others use a tier system of “primary” and “secondary” documents, where, for example, a primary (such as a passport) and a secondary (such as an electric bill confirming an address) are required.
Driver's licenses are the documents used most frequently to establish identity and often serve as source documents to obtain other forms of identification. If an individual obtains a fraudulent driver's license or identification card, he or she can potentially engage in identity-based fraud, or even obtain access to areas and facilities where he or she might cause harm or otherwise pose a severe risk to security.
Based on these considerations, DHS has determined that many of the documents currently accepted by DMVs and proposed by others are not sufficient to address Congress' direction to enhance national security. Many of the documents on these lists can easily be counterfeited, or their authenticity cannot be easily verified by the States—especially outside of the State of issuance. Therefore, this rule proposes a short list of acceptable documents for REAL ID and temporary REAL ID driver's licenses and identification cards.
This approach offers several advantages from a security perspective. First, restricting the number of documents means that only the documents which DHS has found to be the most secure are chosen to demonstrate identity. Second, limiting the number improves the chances that DMV employees will be able to distinguish valid from fraudulent documents because there will be fewer categories of documents with which they will need to be familiar. Third, a smaller list of documents increases the ease of verifying the documents independently, a related statutory requirement and one that will be very effective in reducing document and identity fraud.
Under the NPRM, DHS proposes that States require that applicants provide at least one of these documents in order to obtain a REAL ID driver's license or identification card. States could add additional documentation requirements to satisfy their own objectives, but at least one of the documents listed below would have to be presented for every application. State agencies would not be required to comply with these requirements when issuing driver's licenses or identification cards in support of the Federal Witness Security Program, codified at 18 U.S.C. 3521
The list of acceptable documents that DHS proposes to establish identity for purposes of this regulation is as follows:
• A valid unexpired U.S. passport.
• A certified copy of a birth certificate.
• A consular report of birth abroad.
• An unexpired permanent resident card.
• An unexpired employment authorization document (EAD).
• An unexpired foreign passport with valid U.S. visa affixed.
• A U.S. certificate of citizenship.
• A U.S. certificate of naturalization; or
• A REAL ID driver's license or identification card issued subsequent to the standards established by this regulation.
a.
b.
To achieve security objectives, DHS is proposing that only certified copies of birth certificates that include the individual's full name and can be verified by a State vital statistics, public health, or similar office would be acceptable. Interpreting this more broadly could result in a myriad of non-secure, non-verifiable documentation being used to obtain a driver's license or identification card. Given the fact that Congress specified that the requirements enumerated in section 202(c)(11) were a “minimum,” and given also the serious security implications associated with other implementation considerations included in Title II of the Act, DHS believes that it has the necessary authority to interpret this clause narrowly. Accordingly, this regulation interprets section 202(c)(1)(A) to mean only a certified copy of a birth certificate, and only one issued pursuant to the other requirements discussed in this section. These regulations do not preclude a State that accepts a birth certificate as the applicant's identity document from requiring the individual to also present one or more forms of photo identification to substantiate his or her claimed identity.
A corollary issue considered by DHS is whether to recognize delayed birth certificates issued more than one year after the birth itself. While these cases are relatively few, States have established procedures in place for adjudicating these claims and require evidence to prove the actual occurrence of the birth prior to issuing the birth certificate. Therefore, delayed birth certificates lawfully issued by the States will also be acceptable as an identity document.
c.
d.
e.
f.
g.
Accordingly, States may accept a U.S. visa contained in a foreign passport as an acceptable means of authenticating identity. Not only are the U.S. visas secure and contain a photograph, issued U.S. visas can be verified against DOS systems electronically using the same connectivity required to verify U.S. passports.
DHS is aware that inclusion of a visa alone will leave a large group of aliens who have lawful status in the United States unable to obtain a document that is on this list. First, this includes those nonimmigrants admitted under section 217 of the Immigration and Nationality Act (the Visa Waiver Program, or VWP), as well as the Guam visa waiver program. However, these aliens are admitted solely for short periods of time, are prohibited from working in the United States, and are unlikely to qualify for a U.S. driver's license under typical State residency requirements. Further, these aliens can typically use either the driver's license from their home country or an international driver's license to be able to drive a car while lawfully in the United States. Also, they will still be able to obtain a non-REAL ID license (if the State permits it) that could be used for driving purposes, but not for official Federal purposes pursuant to this regulation. Overall, DHS does not believe that this policy would significantly impact VWP aliens.
Another classification of persons that would be unable to present a visa are Canadians who enter the United States without having to obtain a visa and who stay in the United States for extended periods (
h.
a.
b.
c.
DHS solicits comments on whether these or any other documents should be included as acceptable documentation for showing identity. Commenters should address instances in which classifications of individuals could not obtain any of the documents already on the proposed list, issues of reliability of the document proposed, and ability of the States to verify the proposed document. If DHS concludes that other documents, including those listed above and others submitted by commenters, are reliable and can be verified electronically by the States, they may be included as acceptable identity documents in the final REAL ID rule.
3.
a.
b.
SSA has taken significant steps since 2001 to strengthen the SSN issuance process. SSA has a plan for improving the security of the SSN card itself, in compliance with section 7213 of the Intelligence Reform and Terrorism Prevention Act of 2004. In recognition of improvements in the SSN issuance process and plans for improving the security of the SSN card, DHS considered requiring DMVs to require individuals to present a social security card with their full name and SSN as the only mechanism to demonstrate evidence of their SSN.
DHS recognizes, however, that this approach would be costly and would create an undue hardship on SSA and the public, particularly on members of the public who had lost or misplaced their social security cards. Accordingly, DHS proposes to allow an applicant to establish his or her SSN by presenting his or her social security card, a W-2 form, a SSA-1099 form, a non-SSA 1099, or a pay stub with the applicant's name and SSN on it.
An alien in the United States without authorization to work is generally not eligible for an SSN. Thus, to prove ineligibility for an SSN, an alien must present evidence that he or she is currently in a non-work authorized non-immigrant status.
c.
The place at which a person has been physically present and that the person regards as home; a person's true, fixed, principal and permanent home, to which that
The need to determine an individual's principal residence prior to issuance of a REAL ID driver's license also has its origins in the 9/11 terrorist activity. Seven of the 9/11 hijackers fraudulently obtained driver's licenses in the Commonwealth of Virginia, although none of them actually lived there, by providing false information as to their true place of residence. At the time Virginia allowed only a “signed affidavit” of a Virginia resident to suffice as proof of residency in the State, and two of the hijackers paid an illegal immigrant (who had himself obtained a driver's license fraudulently) $100 to vouch for them.
DHS recognizes that some individuals do not have a fixed address, as that term is commonly used. Individuals who do not have a fixed address, such as the homeless, may still obtain a REAL ID driver's license or identification card if they otherwise can produce the documents a State must possess and verify prior to issuing a REAL ID driver's license or identification card. For such individuals, a State may issue REAL ID driver's licenses and identification cards by adhering to a written exceptions policy as described in section II.F. below.
d.
A U.S. passport, certified copy of a birth certificate, DOS consular report of birth abroad, certificate of citizenship, certificate of naturalization or a permanent resident card can be used to establish lawful status in the United States for purposes of this proposed regulation. If an applicant presents an employment authorization document (Form I-766) or a foreign passport with a valid U.S. visa and/or DHS nonimmigrant Form I-94 affixed for identification, these documents may be accepted as provisional evidence of lawful status, pending verification of status through the Systematic Alien Verification for Entitlements (SAVE) system (
The EAD is envisioned as the document to be presented by the following classes of REAL ID-authorized aliens: Temporary Protected Status (TPS) aliens; asylees and asylum applicants; refugees; adjustment applicants; and aliens granted deferred action. DHS understands that regulatory limitations on issuance of EADs to asylum and TPS applicants will result in a wait period before these aliens will have acceptable documentation, and invites comment on what alternative documentation regimen may serve for these groups, and whether those groups need a REAL ID driver's license or identification card before their applicable wait period expires.
The proposed rule also does not include immigration documentation showing any status under the immigration laws of American Samoa or the Commonwealth of the Northern Marianas for aliens within those jurisdictions. REAL ID specifies U.S. immigration statuses. DHS invites further comment about how these jurisdictions may better be integrated into the REAL ID framework.
Section 202(c)(3)(A) of the Act requires verification from the issuing agency for issuance, validity, and completeness of documentation to establish the following:
• Identity.
• Date of birth.
• Proof of SSN, or that the person is not eligible for an SSN.
• The person's name and address of principal residence.
• The person's lawful status in the United States.
The documents that individuals are required to present are described in section II.D.1 and are listed in § 37.11 of the proposed regulation.
To verify with the issuing agency, the issuance, validity, and completeness of documentation means that the State must determine independently that the document itself has been legitimately issued by the issuing agency to the individual presenting the document, prior to issuing the driver's license or identification card to the individual.
The use of the phrase “required to be presented by the person under paragraph (1) and (2)” in section 202(c)(3)(A) of the Act means that only the specific documents required by this proposed regulation need to be verified. Thus, in the case of identity, only the documents listed in these regulations as required to be presented must be verified. If States wish to require additional documentation to prove identity—for example, if they wish to require photo identification in addition to a certified copy of a birth certificate—then the State does not need to independently verify these additional items, only the birth certificate, as it is included on the Federal list. Ensuring that at least one document presented is independently verified will increase security by reducing the ability to fraudulently manufacture documentation typically used to obtain driver's licenses and identification cards.
Requiring additional documentation can help a State to confirm the identity (or address, or whatever fact is at issue)
Although the Act requires States to verify an applicant's “address of principal residence,” DHS believes that there is no nationally available, reliable, up-to-date, and cost-effective method for States to verify this information with the issuing source of the document, as the plain language of the Act would seem to require. DHS examined existing governmental and non-governmental databases that alone, or in combination, could be used by States to fulfill this requirement, and determined that there is no single way for States to comply with this requirement by May 11, 2008, or in the reasonably foreseeable future.
States currently have widely varying ways of determining a person's residence, although all States require an applicant to demonstrate that they live in the State in which they are applying for a driver's license or identification card. While the U.S. Postal Service can do a basic electronic check for a fee, this system is based on nothing more than the applicant or some unrelated individual sending to the post office a change of address card. Thus, although an electronic verification, it is not based on reliable information.
Further, in almost all cases there is no way to verify independently from documents presented that an address is a person's principal address. A mortgage statement or lease may indicate that a person owns or rents property in a particular place, and while the landlord or bank holding the mortgage could verify this, it does not establish that this is the person's principal residence, just that the ownership or rental is legitimate. In addition, the cost to States of verifying a multitude of documents presented to establish address, such as utility bills, leases, mortgages, or other documents, is potentially significant.
In spite of these limitations, there is a need for some reliability in the information presented for principal residence, as evidenced by the experience of the 9/11 hijackers and how they obtained Virginia driver's licenses (
While States are free to determine the list of acceptable documents for themselves, whatever documents individuals submit must contain a street address for individuals where available. Post office boxes or rural route numbers are not acceptable addresses, since the statute requires a residence, not simply an address.
Applicants would also be required to sign a declaration (that could be included as part of the driver's license or identification card application form) affirming that the information presented is true and correct, including information presented to establish address of principal residence. For minors and other dependents, parents or legal guardians would submit the documentation establishing a principal residence on behalf of the driver's license or identification card applicant. The parent or legal guardian would need to present photo identification (that the DMV would need to verify) and would be required to submit two or more address documents, as if he or she were the primary applicant, and sign the affirmation.
a.
As discussed above, individuals born before January 1, 1935, may be unable to produce birth certificates, or States may be unable to verify any birth certificates produced by such
b.
c.
Recognizing that the U.S. visa affixed in the passport, and not the passport itself, would be the acceptable documentation to demonstrate identity, DHS turned to how that verification would occur. First, DHS examined whether the DMVs could use the State Department systems to verify the visa. While this was a feasible solution since access to DOS databases will ultimately be necessary for all DMVs anyway (to verify U.S. passports and certain birth certificates), authentication of a U.S. visa does not, by itself, establish lawful status in the United States.
While a U.S. visa can be issued for as long as ten years (and often is), it is the Customs and Border Protection (CBP) Officer at U.S. ports of entry who determines the actual admission period for the person seeking to enter the United States. In most cases, this admission period is less than the validity period of the U.S. visa. Accordingly, foreign travelers often use the same visa for multiple trips to the United States—and the length of validity period for the visa is not dispositive as to whether someone has lawful status in the United States. Therefore, to adopt a policy in which a U.S. visa holder must use that visa to establish identity would require that aliens using a U.S. visa as evidence of identity have to undergo three separate checks—the DOS database (to confirm identity), SAVE (to confirm lawful status), and SSOLV (to confirm the Social Security Number). All other categories of driver's license or identification card applicants, including U.S. citizens (whether born in the U.S. or abroad), LPRs, and others would require only two database checks. This approach was deemed to be unduly burdensome on both the applicant and the DMV.
DHS then considered another solution—validating the U.S. visa through existing U.S. immigration and border processing procedures, including DHS's U.S.VISIT and the Department of State's BioVisa Program. Currently, when a person applies for a U.S. visa abroad, he or she is required to submit finger scans, which are biometrically verified when the person arrives in the United States—so that the United States can be sure that the person who received the visa is the same person seeking admission.
DHS believes that, for purposes of obtaining a REAL ID driver's license or identification card, the fact that the U.S. visa was used to enter the United States, and that person was checked against US-VISIT, is an acceptable verification that the document (the U.S. visa) is legitimate. The U.S. visa has been checked against a Government-held database via the biometric check upon arrival. State DMVs will not be required to check the US-VISIT system to confirm that the visa was used for admission. Thus, if the person holding a U.S. visa has lawful status in the United States, which can be verified through SAVE, then the person will have established both identity and lawful status. Under this proposal, aliens presenting a foreign passport with a valid U.S. visa would require only a SAVE and SSOLV check, placing them on par with other driver's license or identification card applicants.
If an applicant presents a permanent resident card (Form I-551), an EAD (Form I-766), or a foreign passport with a U.S. visa affixed, the applicant is not a U.S. citizen. In accordance with the Act, this proposal would require the States to verify the authenticity of the identity documentation and lawful status in the United States at the same time, using the SAVE system maintained by U.S. Citizenship and Immigration Services (USCIS). Under section 202(c)(3)(C) of the Act, States have already been required to enter into memoranda of understanding with DHS by September 11, 2005, to use the electronic and automated system to verify the legal status of a non-U.S. citizen applying for a REAL ID driver's license or identification card.
SAVE is an existing program within DHS that allows State DMVs (as well as many other Federal, State, and local benefit and license granting agencies) to verify electronically the immigration status of the person applying for a driver's license or identification card. This system can verify that a person presenting a Permanent Resident Card (Form I-551) was issued lawful permanent resident status in the United States and, thus, is lawfully in the country. SAVE can also confirm that a person presenting an EAD (Form I-766 or Form I-688B) is in a lawful nonimmigrant status and present in the United States for a fixed period of time. Moreover, SAVE can confirm that an applicant presenting a U.S.-issued visa affixed to a foreign-issued passport is lawfully in the country for a temporary period of time. If a person presents a U.S.-issued visa affixed to a foreign-issued passport, then the applicant will also need to present additional documentation to allow for a SAVE search. This could be a passport stamp, an I-797 Notice of Action, or some other documentation issued by USCIS. The terms and conditions of access to SAVE by a State, including any costs to be borne by the State, shall be established by memorandum of agreement between DHS and the State pursuant to section 202(c)(3)(C) of the Act.
For student aliens admitted for duration of status (D/S), DMVs should use the Student and Exchange Visitor Information System (SEVIS) for verification. SEVIS is a system in which DHS and schools who enroll foreign students communicate to ensure that the aliens claiming student status (as well
• DHS will use the SAVE/SEVIS connection, if the systems are connected prior to May 2008.
• If the SAVE/SEVIS connection is not available, DHS may require foreign students to present a certified statement from the registrar of the school in a sealed envelope demonstrating that he or she is still in school at the time of the alien's application for a driver's license or identification card (and thus still in lawful status).
Individuals who are denied a temporary REAL ID driver's license or identification card due to a SAVE check that they believe is in error should contact the local USCIS branch, or as USCIS may otherwise direct, to resolve concerns over verification of their lawful status.
As stated earlier, all of the documents listed on the proposed list of acceptable identity documents display the date of birth on the face of the document. Thus, once the information on the document is verified, as it must be for identity purposes, there is no further need for the States to verify date of birth independently.
Because of the requirements for the issuance of commercial driver's licenses, the majority of State DMVs already have access to the SSA database for verification of SSNs. Thus, when the DMV applicant presents evidence of an SSN, the DMV will be able to verify that number through existing systems. Verification that a person is not eligible for an SSN must also be provided. To satisfy this requirement, an alien must present evidence, verifiable through SAVE, that he or she is currently in a nonimmigrant status establishing that he or she does not have the right to work in the United States. A person is never permanently ineligible for an SSN, as he or she could obtain some type of immigration status that would entitle him or her to one.
For individual States to verify information and documentation provided by applicants, each State must have electronic access to multiple databases and systems as described above. DHS considers the deployment of the information systems needed to support the electronic verification of applicant data to be its highest priority. Secure and timely access to trusted data sources is a prerequisite for effective verification of applicant data. Electronic access to the Federally-sponsored databases described above will also significantly reduce the costs of REAL ID driver's license and identification card issuance to States. Finally, DHS will work closely with the States to improve their capabilities for verifying the authenticity of source documents. Both data verification and document authentication are necessary to ensure the validity of REAL ID driver's licenses and identification cards.
First, almost all State DMVs currently access the SSOLV database to verify social security numbers through a portal provided by the American Association of Motor Vehicle Administrators (AAMVA). The quality and reliability of this reference data is good and improving. Second, all fifty states have signed MOUs for access to SAVE and twenty State DMVs are currently querying SAVE to verify lawful status. While secondary queries may be required in some instances to update applicant records in SAVE, more than a million initial queries from State DMV are already being processed each year. Moreover, DHS anticipates that the SEVIS-SAVE connection will be completed before May 2008. Third, DHS is working with NAPHSIS to enhance EVVE functionality and expedite implementation of EVVE in all vital records jurisdictions. Since EVVE is currently in pilot phase and will require states to bring their vital records online, assistance to both NAPHSIS and individual states will be needed. Finally, DHS is working with the Department of State to develop an automated system for verifying data from U.S. Passports, Consular Reports of Birth, and Certifications of Report of Birth. For all of these systems, DHS is committed to improving data quality and data consistency to support timely, cost-effective, and reliable data verification.
ii.
iii.
Therefore, DHS will work closely with the Department of Transportation, AAMVA and the States to fulfill the requirements for State-to-State data exchange under the REAL ID Act. DHS will actively support the enhancement and expansion of existing DOT-sponsored systems to meet the requirements of the REAL ID Act. For example, verification that the applicant does not hold a valid driver's license or identification card in another jurisdiction can be accomplished by a variety of methods, including the exchange and comparison of digital image information based on applicant photos. DHS will support such State-to-State exchange initiatives and will partner with DOT, the States and territories, and AAMVA to leverage the value of existing information systems, business rules, standards, and governance mechanisms to facilitate implementation of the Act.
b.
DHS recognizes that there may be extraordinary circumstances where the required documents verifying an applicant's identity, date of birth, SSN, principal address or lawful status may be unavailable. This would include applicants such as a homeless person with no fixed address, as well as an individual who has lost all documentation to a natural disaster such as Hurricanes Katrina and Rita. In such circumstances, DHS believes that the States should have the flexibility to accept alternative documents to establish a particular data element, provided that the State follows defined, written, procedures that are approved by DHS as part of the State certification process for REAL ID. Therefore, DHS proposes that, where a State chooses to establish an exceptions process, that process must include, at a minimum, the following requirements:
• The driver record maintained by the DMV must indicate when an alternate document is accepted.
• Any driver's license or identification card issued using exceptions processing requires a complete record of the transaction, including a full explanation of the reason for the exception, alternative documents accepted and how applicable information from the document was verified.
• The jurisdiction retains the alternate documents accepted or copies thereof in the same manner as for other source documents as described in section II.J. and provides these upon request to DHS for audit review.
Aliens who are in the following lawful statuses may receive REAL ID driver's licenses and identification cards: Has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States; has a pending application for asylum in the United States; has a pending or approved application for temporary protected status (TPS) in the United States; has approved deferred action status; or has a pending application for LPR or conditional permanent resident status. However, driver's licenses and identification cards issued to these classes of aliens are only valid for the duration of the person's lawful period of admission, but no more than eight years, or, if there is no fixed date, a period of one year. Further, these “temporary” driver's licenses and identification cards must clearly identify on the face of the document that they are temporary.
Renewal of these temporary driver's licenses and identification cards must be in person. The renewal applicant must present valid documentary evidence that the status by which the applicant qualified for the temporary driver's license or temporary identification card has been extended by the Secretary of DHS, or that the individual has qualified for another lawful status category listed in the Act.
The following statuses are indeterminate and will always require issuance of a driver's license or identification card limited to one year: Asylum applicant, TPS applicant, and adjustment applicant. Other temporary categories will vary, and the end of the period of authorized stay, if any, must be verified through the SAVE or other designated verification system. Expiration dates on an EAD are not
To meet the requirements of section 202(b) of the Act, a State is required to include, at a minimum, the following information and features on each driver's license and identification card:
(1) Full legal name;
(2) Date of birth;
(3) Gender;
(4) Driver's license or identification card number;
(5) A digital color photograph;
(6) Address of principal residence;
(7) Signature;
(8) Physical security features designed to prevent tampering, counterfeiting, or duplication of the document for any fraudulent purpose;
(9) A common MRT, with defined minimum data elements.
In addition, DHS has determined that States must also include issue date and expiration date on each driver's license or identification card.
Some of these elements are discussed below.
The intent of this requirement is to improve the ability of law enforcement officers, at all levels of Government, to confirm the identity of individuals presenting State-issued driver's licenses or identification cards. Many States do not have a “full” legal name requirement, and using a name other than a full legal name results in “no matches” when checked against other public records that use the full legal name. This occurred with some of the driver's licenses and identification cards obtained by the 9/11 terrorists, where the driver's licenses “names” were variants on the actual name carried in some of the terrorists' validly issued passports.
This requirement raises several issues. First, the name on the REAL ID driver's license or identification card should be identical to the name shown on the identity document used to obtain the driver's license or identification card. However, formats for recording names on identity documents differ and a driver's license or identification card holder's name may change through marriage, divorce, adoption, or court order. State DMVs currently require appropriate proof in the form of documents indicating an official name change: A U.S. court-or Government-issued marriage certificate, a U.S. court-issued divorce decree, or a U.S. court-issued name change decree. States must require an original or certified copy of one of these documents as proof of change of name, and the document must include either the date of birth or the age of the individual. States must also add the changed name in the motor vehicles record database and not delete any previously captured names so that a complete record of the individual's full name history is present in the motor vehicles database.
With regard to the name placed by the DMV on the face of the driver's license or identification card, DHS is proposing to adopt the ICAO 9303 Standard. The ICAO 9303 standard requires Roman alphabet characters, allows a total of 39 characters on the face of the driver's license or identification card, and provides standards for truncation of longer names.
For the machine readable portion of the card, the machine readable technology standard proposed is the PDF-417 2D bar code (
Section 202(b)(4) of the Act requires that each REAL ID license or identification card include the person's unique “driver's license or identification card number.” Federal law prohibits the display of an individual's SSN on a driver's license.
Section 202(b)(5) of the Act requires that the State-issued REAL ID license or identification card include a digital photograph of the person. In addition, section 202(d)(3) provides that the State shall require that each person applying for a driver's license or identification card be subject to mandatory facial image capture. This requirement applies whether or not the person is granted a driver's license or identification card. DHS believes that these provisions require each applicant to allow a DMV to take a photograph for the motor vehicle record, and to place the digital image on the face of the driver's license or identification card, if one is issued. If a driver's license or identification card is not issued, DHS is proposing that States dispose of the photograph after one year. The DMV's photo of the individual should be updated with the most recent photograph in the event the applicant reapplies, and any photos taken of the individual prior to successful issuance of the document should be discarded in favor of the photo associated with the successful application. If the DMV does not issue the driver's license or identification card because of suspected fraud, the record should be maintained for ten years and reflect that a driver's license or identification card was not issued for that purpose.
DHS recognizes that some individuals that may apply for a REAL ID driver's license or identification card are opposed to having their photograph taken based on their religious beliefs. However, the Act requires a facial photograph, which serves important security purposes. Given these concerns and the clear statutory mandate, DHS believes that a driver's license or identification card issued without a photograph could not be issued as a REAL ID driver's license or identification card. Many States now issue non-photo driver's licenses or identification cards based on the applicant's religious beliefs. States may continue to issue these driver's licenses or identification cards to such individuals and DHS recommends that these driver's licenses and identification cards be issued in accordance with the rules for non-compliant driver's licenses and identification cards.
DHS is proposing that digital photographs comply with current ICAO standards.
This regulation proposes that, in most cases, the individual's principal address be included on the face of the REAL ID driver's license or identification card. DHS proposes exceptions to this requirement, as described below.
a.
Section 827 (Protection of domestic violence and crime victims from certain disclosures of information) of the Violence Against Women and Department of Justice Reauthorization Act of 2005,
b.
DHS proposes that the signature meet the requirements of the existing AAMVA standards for the 2005 AAMVA Driver's License/Identification Card Design Specifications, Annex A, section A.7.7.2. This standard includes requirements for size, scaling, cropping, color, borders, and resolution.
Section 202(b)(8) of the Act requires that States must include physical security features on driver's licenses and identification cards to ensure they are resistant to tampering, counterfeiting, or duplication for fraudulent purposes. The legislative history of this requirement states:
The importance of this requirement cannot be overstated. A majority of States maintain a high level of physical security in the manufacture of their cards. Unfortunately, a significant minority of States do not issue licenses or ID cards with secure physical characteristics. This results in criminals, identity thieves, and amateurs such as college students being able to “manufacture” fake driver's licenses or ID card from these States. Federal law enforcement officials—national forensic document laboratory—can validate that the driver's license of these States are not secure from counterfeiting using easily available technology.
To develop a regulation that meets these objectives, DHS consulted forensic document experts and evaluated information helpful in determining minimum standards that would achieve significant security benefits within the next few years, make it significantly harder for amateurs to counterfeit or duplicate driver's licenses and identification cards, and enable States to continue to improve the security of their documents.
One option DHS considered was to permit States to select from a “menu” of recognized security features contained in many existing driver's licenses and identification cards. This option would essentially continue the status quo and provide States with the most flexibility since no two States would necessarily select the same security feature choices. DHS rejected this option since State choice in this area has not produced sufficiently secure forms of identification. There are a variety of websites offering counterfeit driver's licenses and identification cards from each State, and even trained officers cannot always detect counterfeit identification from another jurisdiction. In addition, this option did not provide sufficient incentives for States to continue to improve the security of their driver's licenses and identification cards.
DHS also considered mandating all the required security features, including the document card stock, to the States. This option had the benefit of producing a set of standardized security features that law enforcement and other personnel could be trained to recognize, would achieve significant security benefits within the next few years, and would make it significantly harder for amateurs to counterfeit or duplicate. States were concerned that a fixed array of features would permit professional counterfeiters to focus on countering a static set of security features and might inhibit States from using new and evolving technology. States were also concerned that mandating the particular card stock a State could use would put States at a competitive disadvantage with potential card stock suppliers and lead to increased costs for the States.
The approach DHS is adopting is to combine some mandatory security features with a performance standard, based on impartial adversarial testing of the card and security features. The mandatory security features DHS proposes, such as the use of offset lithography in place of dye sublimation printing, is designed to impair the ability of amateurs to manufacture counterfeit driver's licenses and identification cards or alter genuine ones. It will also lead to a set of standardized security features that law enforcement and other personnel can be trained to recognize. The use of adversarial testing permits States to experiment with a variety of card stocks and new technologies while fulfilling the underlying security requirements of the Act. DHS understands that a number of different types of card stock,
DHS seeks comments on whether the proposed adversarial testing standards will lead to the development of a secure document solution that deters amateurs from producing deceptive counterfeits and/or alterations. DHS also seeks comments on other alternative approaches DHS could pursue on document security to achieve the same objective and how those approaches compare to a performance-based independent adversarial testing. DHS requests that States specifically comment on what contractual issues, if any, the States will face in satisfying the proposed document security requirements if the State's existing license fails one or more of the proposed adversarial tests.
DHS understands that technology is ever-advancing. Therefore, the proposed regulation would establish standards for achieving increased document security for driver's licenses and identification cards. DHS encourages experimentation and development of advanced security technologies.
An important purpose of the Act is to improve law enforcement's ability to confirm the identity of the individual bearing the driver's license or identification card, in order to reduce identity theft and fraud. Authorized users of the information on the REAL ID driver's licenses and identification cards including, but not limited to, law enforcement should be able to access the necessary personal information stored on the driver's license or identification card in order to accomplish a legitimate law enforcement purpose. The ability of commercial entities and other non-law enforcement third parties to collect the personal information encoded on driver's licenses or identification cards raises serious privacy concerns. However, while cognizant of this problem, DHS believes that it would be outside its authority to address this issue within this rulemaking.
As discussed in the Privacy Considerations section of this Preamble, DHS strongly encourages the States to address concerns about the ability of non-law enforcement third parties to collect or skim personal information stored on the REAL ID driver's licenses or identification cards. Some States, such as California, Nebraska, New Hampshire and Texas have passed laws that prohibit the collection of information on a driver's license or identification card. In addition, as noted above, AAMVA has drafted a Model Act
DHS is attempting to achieve a balance between facilitating the ability of law enforcement and other authorized persons to have access to the information on the card and protecting the integrity of the information on the card by limiting the ability of non-authorized persons to obtain that same information. Encryption discussed in section II.H.9 below is one option, but significant concerns exist about the feasibility of deploying encryption, given the need for Federal, State and local law enforcement access.
DHS seeks comments on how best to secure the data, or whether or not to employ protections for the data encoded on the 2D bar code needs to be protected at all, while permitting law enforcement access and what technologies may be available to accomplish this balance. DHS is interested in comments that address whether a technology, such as the National Law Enforcement Telecommunications System (NLETS), or other system currently being used by law enforcement, could be used by the States to provide law enforcement ready access while maintaining the security of the information on the driver's license or identification card.
Section 202(b)(9) of the Act requires the States to include a common MRT with defined minimum data elements for the driver's licenses and identification cards to be accepted by a Federal agency for official purposes. DHS looked at several types of technology that could be used, including:
• A 1D bar code, commonly used for tracking inventory, mostly used by supermarket scanners. This does not have the capability to store significant amounts of information.
• A 2D bar code. This is currently used by 45 of 50 States, plus the District of Columbia. It stores a greater amount of information than the 1D bar code, although the “scanning” process is extremely similar to the 1D bar code. This is also the current AAMVA standard.
• An optical stripe. This is currently used on DHS-issued permanent resident cards and border crossing cards, and stores information digitally, much like a compact disc.
• A contact integrated circuit chip. A contact integrated circuit chip (ICC) in a document could be read by inserting the document in a contact ICC reader.
• A contactless integrated circuit chip. A contactless integrated circuit chip in a document could be read by transmitting data via radio frequency to readers.
Of these five options, DHS believes the following are inappropriate for the purposes of this proposal:
• The 1D bar code does not have the storage capacity to hold the amount of data that the Act requires, and would inhibit States from storing additional State-specific information on the card, should they so choose.
• The integrated contactless chip was not deemed an appropriate technology for this particular document, as there is not an identifiable need for driver's licenses and identification cards to be routinely read at a distance.
• The optical stripe has had durability difficulties over time.
Of the two remaining options—the 2D bar code and the contact chip—DHS proposes the 2D bar code as the better option. The 2D bar code is the existing standard for AAMVA, and is also something with which the public is familiar. Forty-five of the fifty United States use this technology currently, making it relatively easy for virtually every State to meet this requirement by May 2008, at little additional cost for most States. The proposed selection of the 2D bar code ensures that the majority of States have available and usable technology that is interoperable among all the States.
The proposed regulation would mandate the use of the PDF-417 2D bar code as the common MRT standard and DHS proposes to adopt most of the mandatory data elements described in the 2005 AAMVA Driver's License/Identification Card Design
The AAMVA list of data elements includes expiration date, bearer's name, issue date, date of birth, gender, address, and a unique identification number.
Annex D of the AAMVA standard requires that all of the data on the 2D bar code be unencrypted. Although DHS leans toward requiring encryption for the data stored in the 2D bar code on REAL ID driver's licenses and identification cards, DHS believes that access to this information by law enforcement is essential to the requirements of the Act and invites comment on how to provide this access and the protection of the information at the same time.
Because 2D bar code readers are extremely common, there is a possibility that the data could be captured from the driver's licenses and identification cards and accessed by third parties by reading the driver's license or identification card's 2D bar code. For example, a bar could scan the 2D barcode to verify that the individual presenting the driver's license or identification card was 21 or over, and at the same time could conceivably obtain the person's name and address off the barcode and compile a list of names and addresses of its patrons, which it could subsequently sell or use. Encryption would help mitigate this privacy risk by preventing the “skimming” of the information from the MRZ, while still allowing the bar to read the date of birth off the face of the license. Alternatively, the date of birth could be left unencrypted so that the bar could scan the date of birth only. Another alternative would be to eliminate the address from the 2D bar code, requiring “skimmers” to take the extra step of using information brokers to acquire and match an address to the name and date of birth previously collected off the MRZ.
Because encryption of the data necessitates access to the cryptographic key in order to decrypt the data, employing encryption in the 2D bar code would require having a key infrastructure allowing permitted agencies access to the secured key information. For example, a least 16,000 local, State, and Federal law enforcement agencies would need access to the key infrastructure to check the information on the MRZ.
The need for a key infrastructure to support access to encrypted 2D bar code data could create two separate scenarios of concern.
First, there could be a complex and comprehensive exchange of encryption keys through or among all 56 jurisdictions. Although the encryption system would be most secure the larger the number of keys used to secure MRZ information, this large number of cryptographic keys would need to be accessible to law enforcement personnel wherever they would be reading the driver's license. Building such an infrastructure would present certain complexities that, if not addressed appropriately, could reduce the utility of encryption.
Second, there could be one single encryption key, which would avoid the complexities of needing a key infrastructure, but this greatly increases the risk that this single key could be compromised. Although employing a single key greatly simplifies the availability of the cryptographic key for law enforcement, the compromise of this single cryptographic key would compromise all data secured on all REAL ID driver's licenses and identification cards. In this case, encryption could create a false sense of security if a license holder thought his or her information was truly secure and it was not.
For all of the above reasons, we have not proposed that encryption of MRZ data be required. Nonetheless, DHS leans toward an encryption requirement if the practical concerns identified above can be overcome in a cost-effective manner. We request comments on whether and how encryption could be employed to secure the information stored in the MRZ of the cards.
DHS understands the privacy concerns associated with including personal information in an unencrypted machine readable zone of a driver's license, particularly an individual's address, and also recognizes a legitimate law enforcement need for access to certain data elements. Because of this, DHS seeks comments on whether a demonstrable law enforcement need exists to include address in the MRZ portion of the REAL ID driver's license, as currently proposed in this rule.
Section 202(d) of the Act limits the period of validity of all driver's licenses and identification cards that are not temporary to a period that does not exceed eight years.
Under the Act, REAL ID driver's licenses and identification cards (excluding temporary REAL ID driver's licenses and identification cards) may be valid for a period not to exceed eight years. Remote renewal will be allowed for REAL ID driver's licenses and identification cards if the State has retained images or paper copies of the source documents used by the State to issue the original driver's license or identification card through the time of renewal, and if no information has changed since prior issuance (name or address, for example). The State must re-verify information on the source documents that were used as the basis for issuing the original REAL ID driver's license or identification card, to assure there is no match against death information recorded with either the State vital statistics offices or SSA, and in order to diminish the likelihood that an individual obtained his or her original REAL ID driver's license or identification card under a false name or with a fraudulent document.
Finally, under Section 202(d)(4) a State must take reasonable measures to ensure that the individual seeking the renewal is the same person to whom the REAL ID driver's license or identification card was issued. DHS is considering how best to authenticate the identity of an individual requesting renewal of his or her driver's license or identification card remotely, to guarantee that the REAL ID driver's license or identification card is being
A holder of a REAL ID driver's license or identification card must renew his or her driver's license or identification card in person with the State DMV at least once every sixteen years (or every other renewal period, if the State chooses a renewal period of less than the eight-year statutory maximum) for the State to take an updated photograph. The States must re-verify original information and source documents used as the basis for issuance of the original REAL ID driver's license or identification card, but the individual need not resubmit documents for verification as long as the State has retained copies of source documents for the period of renewal. Documents supporting name changes or address changes since prior issuance must be presented to the DMV and verified. This process should apply any time a driver's license or identification card is renewed or reissued for any purpose.
Holders of temporary REAL ID driver's licenses and identification cards must renew their driver's licenses and identification cards in person at each renewal in order to present evidence of continued lawful status. States must verify continued lawful status and re-verify source documents as outlined above.
The renewal process for non-REAL ID driver's licenses and identification cards is not subject to this regulation.
Section 202(d)(1) requires that States employ technology to capture digital images of identity source documents so that the images can be retained in electronic storage in a transferable format. The intent behind this provision is applicant convenience upon renewal, and availability of documentation to law enforcement.
As an alternative, a State may retain the paper copies of the source documents until it develops an electronic system.
Retaining images of source documents allows for renewal of driver's licenses and identification cards remotely, without requiring the driver's license or identification card holder to present source documents at the renewal. Since REAL ID driver's licenses and identification cards must be issued for a maximum period of eight years in accordance with the Act, States may wish to reconcile their source document retention periods accordingly.
DHS is proposing that States that choose to produce REAL ID driver's licenses and identification cards submit to DHS a security plan that outlines the State's consolidated approach to security of DMV facilities and the driver's license or identification card production process. Such security plans should also include the State's approach to conducting background checks of certain DMV employees pursuant to section 202(d)(8) of the Act, physical security of the locations where driver's licenses and identification cards are produced, and the security of document materials and papers from which driver's licenses and identification cards are produced, pursuant to section 202(d)(7) of the Act. Security plans should also describe the security features incorporated into the driver's licenses and identification cards as required under section 202(b)(8) of the Act. Also, should the State decide to incorporate biometrics as an additional security feature (which is not mandated in the regulation), DHS is proposing that the State should describe this use in its security plan and present the technology standard the State intends to use to DHS for approval. This will enable DHS to ensure interoperability of technical standards amongst States seeking to incorporate biometrics in their licensing programs.
This proposed regulation would require that the State submit the security plan to DHS in conjunction with the State's request for certification to enable DHS to review the plan, along with the State's request for certification.
Section 202(d)(8) of the Act requires that “all persons authorized to manufacture or produce driver's licenses and identification cards” must be required to undergo “appropriate security clearance requirements.” The purpose of this requirement is to make sure that those individuals who are in a position to produce, manufacture or issue driver's licenses and identification cards are trustworthy. In some jurisdictions in the past, certain DMV employees involved in this process have aided in the issuance of fraudulent driver's licenses and identification cards.
Section 37.45 of the proposed regulations addresses the requirements of section 202(d)(8) of the Act by identifying which categories of DMV employees must undergo background checks
In light of Congress's clearly expressed intention that background checks be used to prevent the fraudulent creation of identity documents, DHS concluded that background checks should be required for any DMV employee who has the ability to affect the identity information that appears on the driver's license or identification card, who has access to the production process, or who is involved in the manufacture of driver's licenses and identification cards (“covered employees”). Understanding that each State's DMV has a unique organization and structure, it will be up to each State to determine which positions would fall under this definition (“covered positions”). DHS proposes to require that the State DMVs provide their employees and prospective employees that have been selected for placement in a covered position with notice that a background check is required for employment in a covered position and what that background check will include.
With respect to the type of background check required, the regulations propose that States collect fingerprints for individuals who seek employment in a covered position, in order to conduct a criminal history record check (CHRC) on those individuals through the Federal Bureau of Investigation (FBI) and State repositories. Individuals who have been convicted or found not guilty by reason of insanity of certain permanent disqualifying offenses; or individuals who have been convicted or found not guilty by reason of insanity within the previous seven years or who have been released from prison within the past five years for certain interim disqualifying offenses, would not be allowed to hold covered positions within a State DMV. The list of disqualifying offenses, based on current Federal requirements, mirrors requirements for TSA's Hazardous Materials Endorsement program (HAZMAT program) and Transportation Workers Identification Credential (TWIC) program.
DHS concluded that this list of crimes is sufficient as a Federal minimum. States may add additional disqualifying offenses to this list for their covered employees. States will be responsible for arranging reimbursement with the FBI for the cost of conducting the fingerprint CHRC check. DHS invites comment on whether the proposed list of disqualifying offenses is appropriate, too large, or insufficient as it concerns REAL ID.
DHS is also proposing that the States perform a financial history check on individuals seeking employment in covered positions. Such checks are already being conducted by many employers, including many DMVs, as one indicator that an individual may warrant additional scrutiny or supervision before assuming responsibilities that raise security risks. While questionable financial history would not be considered a Federal disqualifier, the information should be used by the States in making their own determinations on how or whether particular individuals should be employed at the DMV.
DHS recognizes that this requirement is not a feature of the TWIC or HAZMAT programs. Nevertheless, DHS believes that it is warranted in the instant case, due to the sensitivity of the personal information that will routinely be handled by employees at State motor vehicle administrations and the fact that a driver's license or identification card serves as a key “breeder” document in securing other forms of State and Federal identification. If the DMV personnel issuing and authenticating the driver's license or identification card are compromised and issue genuine REAL ID driver's licenses and identification cards to individuals who are seeking to mask their true identity, those individuals can obtain additional identification using that false identity and thwart the Government's and law enforcement's ability to identify accurately individuals lawfully stopped and screened. Moreover, as set forth in the Conference Report on section 202(d)(8) of the REAL ID Act, Congress was concerned at the extent of “driver's license insider corruption.” H.R. Rep. No. 109-72, at 183 (2005) (Conf. Rep.). DHS believes that DMV employees with severe financial difficulties might be more susceptible to bribery, and that States should take this into consideration in determining whether an individual should be placed in a covered position.
These proposed regulations do not preclude a DMV from hiring any individual based on the results of the financial history check and do not preclude the DMV from placing the individual in a covered position based on that check. The financial history check information is intended to provide the employer a fuller picture when deciding whether to place a potential employee in a covered position.
DHS also proposes that States conduct a lawful status check through SAVE to verify that the individual has lawful status in the United States.
DHS proposes that States may grant waivers allowing individuals to maintain their positions under particular circumstances as authorized by the States; for example, where an individual has made full disclosure of his or her criminal history to the State DMV. DHS proposes that States adopt written practices for waiver processes and provide them to DHS as part of the background check discussion of the State's comprehensive security plan. Waiver practices will be reviewed by DHS during a State's initial certification and thereafter as part of periodic DHS audits of the State's REAL ID program.
The Act requires that States “ensure the physical security of locations where driver's licenses and identification cards are produced and the security of document materials and papers from which driver's licenses and identification cards are produced.” This means that the DMV buildings, storage areas, databases and systems, and other areas of perceived vulnerability must be protected from theft and fraud. The State's comprehensive security plan should include a written risk assessment of each facility, physical security measures, access identification and control measures for employees and vendors, written policies and procedures, training and internal controls to identify and minimize fraud, and an emergency/incident response plan if procedures are breached.
DHS is considering the American National Standards Institute/North American Security Products Organization's “Security Assurance Standards for the Document and Product Security Industries,” ANSI/NASPO-SA-v3.OP-2005, Level II, as the preferred performance-based standard for physical security of DMV facilities. DHS seeks comment on adoption of this standard, as well as recommendations on other appropriate performance-based standards to meet this statutory requirement. DHS also specifically seeks comment on the extent that the adoption of any performance-based standard would require modification of existing office space or construction of new space. DHS also seeks comments on the extent to which physical changes to existing office spaces required by the adoption of
The security plan discussed above must detail the document security features that States are adopting for their driver's licenses and identification cards to prevent tampering, counterfeiting, or duplication of the driver's license or identification card for fraudulent purposes. These features are discussed in more detail in the preamble at Section II.H.6, infra,
Section 202(d)(7) of the Act requires States to “ensure the physical security of locations where driver's licenses and identification cards are produced and the security of document materials and papers from which driver's licenses and identification cards are produced.” DHS believes that the scope of this provision includes protecting the security of the personal information stored in DMV databases. The House Conference Report discussion of this section of the Act states that the requirement for improved physical security is to address “a growing problem of identity thieves and documents purveyors breaking into State facilities and stealing driver's license or identification card stock blanks, printing machines, and sometimes actual computer hard drives in which current driver's license or identification card holder data is stored.”
As part of the Comprehensive Security Plan, States shall be required to describe standards and procedures for managing driver records and data collected, stored, modified, accessed and transmitted under the requirements of this rule. With respect to the identity documents required to be provided by applicants, States shall describe procedures to prevent unauthorized access to, or dissemination of, images of these documents stored pursuant to the Act. States shall also detail procedures for document retention and destruction for both physical and electronic records. With respect to applicant data required under the Act, States shall document access controls and related procedures governing the authorized use of such data. Finally, States shall document procedures for resolving data formatting, quality, and integrity issues. DHS encourages States to draft collective standards and best practices for the management of both documents and data required under the provisions of this rule.
In the event of a terrorist event or natural disaster as extensive as 9/11 or Hurricane Katrina, the sharing of information collected and maintained by DMVs pursuant to the REAL ID Act may prove useful to the States for many purposes, such a recreating lost State data, providing individuals' access to images of their source documents when originals are destroyed, or assisting in recovery efforts. DHS seeks comment on whether and to what extent States can or should include in their security plans access to data for information sharing purposes as necessary in the event of a catastrophic event.
Section 202(a)(2) of the Act requires the Secretary to determine whether a State is meeting the requirements of the Act based on certifications made by the State to the Secretary of DHS. Certifications “shall be made at such times and in such manner as the Secretary, in consultation with the Department of Transportation, may prescribe by regulation.” Section 37.55 of the regulations presents the requirements for certification.
To ease the burden on the States, DHS determined that this certification process should be similar to the certification process included in DOT's regulations governing State administration of commercial driver's licenses, 49 CFR Part 384. The States are accustomed to these certification requirements, and the requirements appear useful in providing the information DHS will need to ensure that States are in compliance with applicable REAL ID standards. Accordingly, Subpart F of these regulations was based, to a large extent, on 49 CFR Part 384. States must demonstrate initial compliance with these regulations by submitting a certification and certain specified documents including a description of its REAL ID program, and demonstrate continued compliance by annually submitting such certification and documents. DHS will review such initial and annual certifications and notify the State of its preliminary determination as to the State's compliance with the regulations. The State will have 30 calendar days to respond to the preliminary determination and explain how any identified deficiencies will be corrected or, alternatively, why the DHS preliminary determination is incorrect. DHS will then notify the State of its final determination for which the State may seek judicial review.
Section 202(d)(11) of the Act requires that any driver's license or identification card that does not satisfy the requirements of this section must clearly state on its face that it may not be accepted by any Federal agency for Federal identification or any other official purpose. DHS is proposing that this statement be in bold lettering on the face of the driver's license or identification card. States must also differentiate non-REAL ID driver's licenses and identification cards from REAL ID driver's licenses and identification cards by incorporating a unique design or color indicator to alert Federal agencies and other law enforcement personnel that it may not be accepted for Federal official purposes pursuant to this regulation. DHS seeks comment on whether a uniform design/color should be implemented nationwide for non-REAL ID driver's licenses and identification cards.
Section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) (Pub. L. 108-458, 118 Stat. 3638, Dec 17, 2004) requires that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and implement a plan, as expeditiously as possible, to require travelers entering the United States to present a passport, other document, or combination of documents, that are “deemed by the Secretary of Homeland Security to be sufficient to denote identity and citizenship.” Section 7209 of IRTPA is commonly known as the Western Hemisphere Travel Initiative (WHTI).
DHS and DOS issued a final rule on the plan for the air implementation of WHTI which took effect on January 23, 2007. The WHTI requirements for the land and sea borders will be addressed in a separate rulemaking proceeding. In a related WHTI proceeding, DOS issued a Notice of Proposed Rulemaking concerning the Passport Card that would be an acceptable WHTI document at U.S. land and sea borders. See 71 FR 60928 (Oct. 17, 2006). The NPRM proposed that the Passport Card incorporate integrated circuit chip (ICC) technology that would transmit a unique identifier number that could be matched to the holder only in a Government database. The use of ICC technology would facilitate the border inspection of the Passport Card holder. DHS understands that numerous States are interested in exploring whether enhanced driver's licenses and identification cards could be acceptable at the land border to satisfy the WHTI requirements. There are a number of significant differences, however, between a Federally-issued border crossing document and a State-issued driver's license or identification card, including the different vetting criteria. In addition, for purposes of satisfying WHTI requirements, the State would have to ensure that the State-issued REAL ID driver's license or identification card denoted citizenship for purposes of border crossing under WHTI. For REAL ID purposes, DHS is not proposing that States must present the individual's citizenship on the face of the driver's license or identification card or MRZ.
Nevertheless, recognizing the strong interest in some border States to explore the possible interplay between an enhanced driver's license/identification card and WHTI requirements, DHS seeks comments on several topics relating to this notion, including what procedures and business processes a State DMV could develop in order to offer individuals applying for a State-issued REAL ID driver's license or identification card the voluntary option to use the document as a WHTI-compliant border crossing document by meeting some additional requirements. DHS also invites comments on how a State would integrate the type of ICC technology necessary to provide a travel facilitation benefit at the land and sea border along with the common machine readable technology proposed in the REAL ID proceeding while also including an MRZ meeting ICAO standards.
DHS solicits public comments on all aspects of this proposed regulation. DHS is particularly interested in comments on the following issues:
(1) Whether the list of documents acceptable for establishing identity should be expanded. Commenters who believe the list should be expanded should include reasons for the expansion and how DMVs will be able to verify electronically with issuing agencies the authenticity and validity of these documents.
(2) Whether the data elements currently proposed for inclusion in the machine readable zone of the driver's license or identification card should be reduced or expanded; whether the data in the machine-readable portion of the card should be encrypted for privacy reasons to protect the data from being harvested by third parties, and whether encryption would have any effect on law enforcement's ability to quickly read the data and identify the individual interdicted. What would it cost to build and manage the necessary information technology infrastructure for State and Federal law enforcement agencies to be able to access the information on the machine readable zone if the data were encrypted?
(3) Whether individuals born before 1935 who have established histories with a State should be wholly exempt from the birth certificate verification requirements of this regulation, or whether, as proposed, such cases should be handled under each State's exceptions process.
(4) If a State chooses to produce driver's licenses and identification cards that are WHTI-compliant, whether citizenship could be denoted either on the face or machine-readable portion of the driver's license or identification card, and more generally on the procedures and business processes a State DMV could adopt in order to issue a Real ID driver's license or identification card that also included citizenship information for WHTI compliance. DHS also invites comments on how States would or could incorporate a separate WHTI-compliant technology, such as an RFID-enabled vicinity chip technology, in addition to the REAL ID PDF417 barcode requirement.
(5) How DHS can tailor the address of principal residence requirement to provide for the security of classes of individuals such as federal judges and law enforcement officers.
(6) What benchmarks are appropriate for measuring progress toward implementing the requirements of this rule and what schedule and resource constraints will impact meeting these benchmarks.
(7) Adoption of a performance standard for the physical security of DMV facility, including whether DHS should adopt the ANSI/NASPO “Security Assurance Standards for the Document and Product Security Industries,” ANSI/NASPO-SA-v3.OP-2005, Level II as the preferred standard.
(8) How DHS can better integrate American Samoa and the Commonwealth of the Northern Marianas into the REAL ID framework.
(9) Whether the physical security standards proposed in this rule are the most appropriate approach for deterring the production of counterfeit or fraudulent documents, and what contractual issues, if any, the States will face in satisfying the document security requirements proposed in this rule.
(10) The federalism aspects of the rule, particularly those arising from the background check requirements proposed herein.
(11) How the Federal government can better assist States in verifying information against Federal databases.
(12) In addition to security benefits, what other ancillary benefits could REAL ID reasonably be expected to produce? For example, could REAL ID be expected to reduce instances of underage drinking through use of false/fraudulent identification. If so, please provide details about the expected benefit and how it would be achieved through REAL ID.
(13) The potential environmental impacts of the physical security standards and other requirements proposed under this rule.
(14) Whether other federal activities should be included in the scope of “official purpose.”
(15) How the REAL ID Act can be leveraged to promote the concept of “one driver, one record, one record of jurisdiction” and prevent the issuance of multiple driver's licenses.
(16) Whether DHS should standardize the unique design or color required for non-REAL ID under the REAL ID Act for ease of nationwide recognition, and whether DHS should also implement a standardized design or color for REAL ID licenses.
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
This proposed rule contains new and amended information collection activities subject to the PRA. Accordingly, DHS has submitted the following information requirements to OMB for its review.
In the first three years of license issuance, applicants for REAL ID would spend an average of 55.9 million more hours per year. This is equal to approximately 44 additional minutes per applicant on average. This time includes the increase in time to obtain source documents, travel to the DMV, wait in line, and receive service at a customer window.
One-time initial certifications of compliance would require an estimated $1,106,000 for all jurisdictions. Using an average hourly total cost of compensation of $24.92 yields an estimate of 44,397 hours for the first year. This collection occurs only in the first year. However, over three years the annualized burden is 14,799 hours or $368,795.
State annual re-certification would cost the states, on average, $295,035 per year. Using an average hourly total cost of compensation of $24.92 yields an estimate of 11,839 hours each year.
Each quarterly report is likely to require effort similar to the annual re-certifications. Accordingly, the hourly burden estimate is 11,839 hours per quarter or 47,356 hours annually. Using an average total cost of compensation of $24.92 yields a monetized estimate of $1,180,142 per year.
Forwarding information to the Federal Government for the employee background checks would impose an annualized burden of 889 hours on DMVs and/or State governments. This assumes that each submission will take three minutes to forward information for the FBI CHRC. Multiplying the three minutes per transaction by the 17,781 annualized employee background checks yields the annualized hour burden above. Using an average total cost of compensation of $24.92 yields an annual monetized estimate of $22,156.
Driver's license and identification card applicants would incur an annual $171 million in order to seek acceptable source documents as required by this rule.
Running immigration checks on foreign-born applicants for driver's licenses and identification cards will not impart a new hourly burden upon DMVs. DMVs already collect biographic information from applicants' source documentation. At most, this requirement will change which pieces are collected, not the total amount of information collected. Further, the transmission of information to the SAVE system run by DHS will be automated and will therefore not require DMV labor hours to conduct each check.
DHS is soliciting comments to—
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Individuals and organizations may submit comments on the information collection requirements by May 8, 2007. Direct the comments to the address listed in the
As protection provided by the Paperwork Reduction Act, as amended, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Changes to Federal regulations must undergo several economic analyses. A summary of the required analyses follows. A detailed regulatory impact analysis has been prepared as a separate document and is available for review in the docket.
First, Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
Although Congress recognized that States will have to expend monies in order to comply with REAL ID,
DHS has determined that this rule will have an impact of over $100 million and that it raises novel or complex policy issues. Accordingly, this rule is significant under Section 3(f)(1) of Executive Order 12866 and therefore has been reviewed by the Office of Management and Budget.
DHS has assessed the costs, benefits and alternatives of the requirement proposed under this rule. A complete regulatory impact assessment, as required under Executive Order 12866 and OMB Circular A-4, is set forth in a separate document in the docket for this regulatory action at
The Department of Homeland Security (DHS) has conducted a comprehensive, rigorous, and exhaustive Regulatory Evaluation of the benefits and costs of the proposed minimum standards for state-issued driver's licenses and non-driver identification cards pursuant to the REAL ID Act of 2005. Since these standards will impact the lives of approximately 240 million people and the operations of all 56 state and territorial jurisdictions, DHS is committed to an ongoing dialogue with all stakeholders on the benefits and burdens of the proposed regulation. This Regulatory Evaluation is the initial step in joint State, Federal, and public effort to improve the security and trustworthiness of driver's licenses and identification cards.
This Regulatory Evaluation covers the ten-year costs of REAL ID Program deployment and operations. This includes:
• Year One—State and Federal government program startup efforts prior to the statutory deadline of May 2008.
• Years Two through Six—the five-year implementation period ending in May 2013, by which time States must be in full compliance with the statute and regulation
• Years Seven through Ten—four years of program operation
Moreover, this Regulatory Evaluation is based upon five key assumptions and to the extent that any of these five assumptions are relaxed, then it is likely that the compliance costs may be lower.
(1)
(2)
(3)
(4)
(5)
It is impossible to quantify or monetize the benefits of REAL ID using standard economic accounting techniques. However, though difficult to quantify, everyone understands the benefits of secure and trusted identification. The proposed minimum standards seek to improve the security
The costs of the proposed rule are significant. Implementing the REAL ID Act will impact all 56 State and territorial jurisdictions, more than 240 million applicants for and holders of State DL/IDs, private sector organizations, and Federal government agencies. Figure 1 summarizes the estimated marginal economic costs of the proposed rule over a ten-year period.
Figure 1 shows the primary estimates calculated in both undiscounted 2006 dollars and discounted dollars at a 7% discounted rate. Excluding the cost to individuals, primarily associated with obtaining documents, DHS estimates that the discounted cost of the proposed rule is $11.2 billion ($13.81 per issuance for each of the 813 million issuances over ten years) over ten years. The total discounted cost of the proposed rule, including the cost to individuals is $17.2 billion ($21.18 per issuance). The undiscounted costs are estimated at $15.2 billion ($18.73 per issuance), excluding the direct cost to individuals or $23.1 billion total ($28.41 per issuance). DHS acknowledges that an individual may have more than one application experience over a ten year period due to the expiration period or relocation between states.
States will incur the largest share of the costs as shown in Figure 1. More than 60 percent of the costs (discounted or undiscounted) are associated with providing customer services and card production. Over 30 percent of the costs (discounted or undiscounted) are categorized as costs to individuals and are associated with preparing applications and obtaining necessary documents.
Several factors influence the high cost of this proposed rule. First, this rule is assumed to affect 56 jurisdictions and 240 million license holders. This regulatory evaluation assumes that every license holder will acquire a REAL ID. Second, many individuals will not have their required documents when they need them. Again, the regulatory evaluation realistically assumes that many individuals will need to find the appropriate documents. Third, individuals will need to renew their licenses periodically. DHS does not foresee any way to significantly lessen the 813 million issuances over the next ten years.
The proposed REAL ID regulation would strengthen the security of personal identification. Though difficult to quantify, nearly all people understand the benefits of secure and trusted identification and the economic, social, and personal costs of stolen or fictitious identities. The proposed REAL ID NPRM seeks to improve the security and trustworthiness of a key enabler of public and commercial life—state-issued driver's licenses and identification cards.
The primary benefit of REAL ID is to improve the security and lessen the vulnerability of federal buildings, nuclear facilities, and aircraft to terrorist attack. The rule would give states, local governments, or private sector entities an option to choose to require the use of REAL IDs for activities beyond the official purposes defined in this regulation. To the extent that states, local governments, and private sector entities make this choice, the rule may facilitate processes which depend on licenses and cards for identification and may benefit from the enhanced security procedures and characteristics put in place as a result of this proposed rule.
DHS provides a rough “break-even” analysis based on the rule having an impact on the annual probability of the U.S. experiencing 9/11 type attacks in the 10 years following the issuance of
In summary, if these requirements lowered by 3.60% per year the annual probability of a terrorist attack that caused immediate impacts of $63.9 billion (which is an estimate of the immediate impact incurred in the 9/11 attack and might be considered a lower bound estimate), the quantified net benefits of the REAL ID regulation would be positive. If these requirements lowered by 0.61% per year the annual probability of a terrorist attack that caused both immediate and longer run impacts of $374.7 billion (which is an estimate of the immediate and longer run impacts incurred in the 9/11 attack and might be considered an upper bound estimate), the quantified net benefits of the REAL ID regulation would be positive.
The potential ancillary benefits of REAL ID are numerous, as it would be more difficult to fraudulently obtain a legitimate license and would be substantially more costly to create a false license. These other benefits include reducing identity theft, unqualified driving, and fraudulent activities facilitated by less secure driver's licenses such as fraudulent access to government subsidies and welfare programs, illegal immigration, unlawful employment, unlawful access to firearms, voter fraud, and possibly underage drinking and smoking. DHS assumes that REAL ID would bring about changes on the margin that would potentially increase security and reduce illegal behavior. Because the size of the economic costs that REAL ID serves to reduce on the margin are so large, however, a relatively small impact of REAL ID may lead to significant benefits.
The Regulatory Flexibility Act of 1980, as amended, (RFA) was enacted by Congress to ensure that small entities (small businesses, small not-for-profit organizations, and small governmental jurisdictions) are not unnecessarily or disproportionately burdened by Federal regulations. The RFA requires agencies to review rules to determine if they have “a significant economic impact on a substantial number of small entities.” The following analysis suggests that the proposed rule would not have a significant economic impact on a substantial number of small entities.
Under the RFA, the term “small entity” has the same meaning as the terms “small business,” “small organization” and “small governmental jurisdiction.” This action will affect States, and States are governmental jurisdictions. However, States are not considered “small governmental jurisdictions” under the RFA. As defined by the RFA, small governmental jurisdictions include governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50 thousand. The proposed rule would regulate driver's licenses and non-driver identification cards at the state level. It would not directly regulate small government jurisdictions nor would it directly regulate small entities in the driver's license and identification card industry.
The rule would regulate the acceptance of a driver's license or identification card by Federal agencies for official purposes. (If the rule is adopted, Federal agencies would not accept state-issued driver's licenses or identification cards unless they were REAL IDs for the purposes of boarding federally regulated commercial aircraft, entering nuclear power plants and accessing Federal facilities. The rule does not require presentation of this, or any other document, nor does it prohibit the acceptance of any other document.) Consequently, employees and agents would be trained in the acceptance of REAL ID driver's licenses and identification cards to ensure they are compliant with the Act.
The acceptance of REAL ID driver's licenses and identification cards for accessing Federal facilities does not directly regulate small entities as the Federal government is not itself a small entity.
Nuclear power plants qualify as small entities if “including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours.”
DHS estimates that airlines and their representatives would need to train some of their personnel in the acceptance of REAL ID driver's licenses and identification cards under the proposed rule. While data exist on the number of employees for some firms in the air carrier industry, data do not exist on how many of these employees accept identification from passengers before allowing them to board an aircraft. DHS has therefore established a threshold measure to determine if the proposed regulation would have a significant impact on a substantial number of small entities.
DHS estimates that each employee accepting REAL ID driver's licenses and identification cards for official purposes would require two hours of training. This training will assist personnel in identifying the differences between REAL IDs and non-compliant IDs. The training will also inform personnel about which States are or are not compliant during the phase-in period.
This analysis suggests that the proposed rule would not have a significant impact on a substantial number of small entities. The Department welcomes comments and data on the impacts of the proposed regulation on small entities.
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. There is no international standard for state-issued driver licenses or identification cards. DHS has determined that the proposed regulation would not have an impact on trade.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objective of the rule. Agencies are also required to seek input from the States in the preparation of such rules.
The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows DHS to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.
As indicated above, UMRA excludes from its scope regulations which are required for national security reasons. National security was a primary motivator for the REAL ID Act; indeed, the Act itself is an effort to implement recommendations of the 9/11 Commission, and Congress took pains to explain the connection between REAL ID and national security, with over a dozen references to “terrorists” or “terrorism” in the Conference Report.
Notwithstanding the national security nature of the REAL ID Act requirements, DHS has analyzed the estimated cost to states and considered appropriate alternatives to, and benefits derived from, the proposed regulation. Moreover, as detailed in the following section (Executive Order 13132, Federalism), DHS has solicited input from State and local governments in the preparation of this proposed rule.
Executive Order (E.O.) 13132 requires each Federal agency to develop a process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The phrase “policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
Executive Order 13132 lists as a “Fundamental Federalism Principle” that “[f]ederalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people.” The issue covered by the instant regulation is, without question, national in scope and significance. It is also one in which the States have significant equities.
While driver's licenses and identification cards are issued by states, they are also the most widely used identification documents. Not
Section 3 of the E.O. sets forth certain “Federalism Policymaking Criteria.” In formulating or implementing policies with “federalism implications,” agencies are required, to the extent permitted by law, to adhere to certain criteria. DHS has considered this action in light of the criteria set forth in E.O. 13132 section 3(a)-(d) and submits the following:
(a)
Notwithstanding this clear mandate, DHS has taken steps, in consultation with the States, to maximize policymaking discretion at the state level. In response to concerns expressed during the course of DHS’ discussions with stakeholders, DHS has proposed, as part of this rule, an exceptions process (
In section II.K.1 of this proposed rule (section 37.45 of the regulations
States are also given the discretion to find the best way to determine an individual driver's license or identification card applicant's address of principal residence (
In other aspects of the proposed regulation (
(b)
(c)
To facilitate compliance with REAL ID, DHS has adopted a certification process similar to that used by DOT in its regulations governing State administration of commercial driver's licenses. Under the proposed rule, DHS will not directly oversee State compliance. Rather, States will demonstrate initial compliance with REAL ID by submitting a certification and certain specified documents including a description of their REAL ID programs. Continued compliance will be demonstrated through annual submission of such certification and documents. DHS will make compliance determinations based on submissions by the States (and will retain an audit function). States receiving adverse determinations will have the opportunity for an internal appeals process as well as judicial review. Thus, intrusive oversight is avoided by allowing the States themselves to serve as the primary compliance mechanism with this regulation.
(d)
Where the exigencies of national security and the need to prevent identity fraud have militated in favor of a uniform national standard (
Under section 6 of E.O. 13132, an agency may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides
(a)
(b)
(c)
In particular, DHS’ Office of State and Local Government Coordination hosted three face-to-face meetings (October 2005, January 2006 and February 2006), as well as a conference call (March 2006). DHS also participated in other conferences on REAL ID, hosted by various other stakeholders, including the American Association of Motor Vehicle Administrators. Details of conferences and the input received by DHS from participants are reflected in the docket for this proposed rule and are available for public review as set forth above.
(d)
As indicated above, E.O. 13132 prohibits any agency from implementing a regulation with federalism implications which imposes substantial direct compliance costs on State and local governments unless the regulation is required by statute, the Federal Government will provide funds to pay for the direct costs, or the agency has consulted with State and local officials. In such a case, the agency must also incorporate a federalism statement into the preamble of the regulation and make available to the Office of Management and Budget any written communications from State and local officials.
This proposed rule is required by the REAL ID Act. DHS has (as detailed above) consulted extensively with State and local officials in the course of preparing this regulation. Finally, DHS has incorporated this Federalism Statement into the preamble to assess the federalism impact of its proposed REAL ID regulation.
The issuance of driver's licenses has traditionally been the province of State governments; DHS believes that, to the extent practicable, it should continue as such. However, given the threat to both national security and the economy presented by identity fraud, DHS believes that certain uniform standards should be adopted for the most basic identity document in use in this country. DHS has, in this proposed rule, attempted to balance State prerogatives with the national interests at stake. We look forward to receiving input from States, citizens and other stakeholders with regard to the federalism implications of this proposed rule.
Under this proposed rule, DHS is seeking specific public comment and, in particular, information from State DMVs, on the potential environmental impact of the physical standards and other proposed requirements under this rule. DHS will be conducting the necessary analysis to determine the environmental impacts of this rule for purposes of complying with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
The energy impact of the proposed rule has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, as amended (42 U.S.C. 6362). We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.
Document security, Driver's licenses, Identification cards, Incorporation by reference, Motor vehicle administrations, Physical security.
For the reasons set forth in the preamble, the Department of Homeland Security proposes to amend 6 CFR chapter I, by adding a new part 37 to read as follows:
49 U.S.C. 30301 note; 6 U.S.C. 111, 112.
(a) Subparts A through F of this part apply to States and territories that choose to issue driver's licenses and identification cards that can be accepted by Federal agencies for official purposes.
(b) Subpart F of this part establishes certain standards for State-issued driver's licenses and identification cards that do not meet the standards for acceptance for Federal official purposes.
For purposes of this part:
(1) Allows victims of domestic violence, dating violence, sexual assault, stalking, or a severe form of trafficking to keep, obtain, and use alternative addresses; or
(2) Provides confidential record-keeping regarding the addresses of such victims.
(a)
(b)
(c)
States must require each individual applying for a REAL ID driver's license or identification card to have their photograph taken by the DMV, and maintain that photograph as described in paragraph (a) of this section. States must further require each individual applying for a REAL ID driver's license or identification card to submit the declaration in paragraph (b) and to present the documents described in paragraphs (c), (d), (e) and (f) of this section. Documents in paragraph (g) of this section are required as described in that paragraph. States are not required to comply with these requirements when issuing REAL ID driver's licenses or identification cards in support of Federal, State, or local criminal justice agencies or programs that require special licensing or identification to safeguard persons or in support of their other official duties. As directed by appropriate officials of these Federal, State, or local agencies, States should take sufficient steps to safeguard the identities of such persons. Driver's licenses and identification cards issued in support of Federal, State, or local criminal justice agencies or programs that require special licensing or identification to safeguard persons or in support of their other official duties shall not be distinguishable from other REAL ID licenses or identification cards issued by the State.
(a) The State must subject each person applying for a REAL ID driver's license or identification card to a mandatory facial image capture, whether or not such person is issued a REAL ID driver's license or identification card. Photographs of individuals who were not issued a REAL ID driver's license or identification card must be kept for 1 year, unless the DMV did not issue the driver's license or identification card because of suspected fraud, in which case the record should be maintained for ten years and reflect that a driver's license or identification card was not issued for that reason.
(b)
(c)
(i) A valid unexpired United States passport.
(ii) Certified copy of a birth certificate issued by a U.S. State or local office of Public Health, Vital Records, Vital Statistics or equivalent office.
(iii) Consular Report of Birth Abroad issued by DOS, Form FS-240, DS-1350 or FS-545.
(iv) An unexpired Permanent Resident Card issued by DHS, Form I-551.
(v) An unexpired employment authorization document (EAD) issued by DHS, Form I-766 or Form I-688B.
(vi) Unexpired foreign passport with a valid unexpired U.S. visa affixed.
(vii) Certificate of Naturalization issued by DHS, Form N-550 or Form N-570.
(viii) Certificate of Citizenship, Form N-560 or Form N-561.
(ix) REAL ID driver's license or identification card issued in compliance with the standards established by this part.
(2) If the individual's name has changed through adoption, marriage, divorce, or court order, the individual must present an original or certified copy of the documents showing a legal name change, before the name is changed on the driver's license or identification card. These documents must come from a U.S. or State-level Court or government agency.
(d)
(e)
(1) To establish an SSN, an applicant must present his or her social security account number card, a W-2 form, a SSA-1099 form, a non-SSA 1099 form, or a pay stub with the applicant's name and SSN on it; the SSN must be verified pursuant to § 37.13 of this subpart.
(2) To establish ineligibility for an SSN, an alien must present evidence that he or she is currently in a non-work authorized nonimmigrant status.
(f)
(1) Documents used to demonstrate address of principal residence that are issued monthly (such as bank statements or utility bills) must not be more than three months old at the time of application.
(2) Documents used to demonstrate address of principal residence that are issued annually (such as property tax records) must be for the most current yearly period at the time of application.
(3) Except as provided in § 37.17(f)(1), (f)(2) and (f)(3) of this part, a street address must be required.
(g)
(h) State DMVs may choose to establish a written exceptions process in order to provide REAL ID driver's licenses and identification cards to persons who, for reasons beyond their control, are unable to present all necessary documents and must rely on alternate documents to establish identity. An exceptions process may not be used to demonstrate lawful status. Each State establishing an exceptions process must have that process approved by DHS for the verification of documents in this section, and document each time the process is used, both on the applicant's record in the DMV's database and in the DMV's files.
(1) The applicant's records must visibly indicate when an alternate document is accepted and how applicable information from the document was verified.
(2) The record must include a full explanation of the reason for the exception and alternative documents accepted whenever a driver's license or identification card is issued using exceptions processing.
(3) The State shall retain copies of the alternate documents accepted pursuant to this section and provide these upon request to DHS for audit.
(4) The State shall provide DHS with quarterly reports analyzing the use of the exceptions process and any trends that indicate potential vulnerabilities.
States must adopt procedures satisfying the requirements of paragraph (a) of this section to verify with the issuing agency the issuance, validity, and completeness of a document presented to demonstrate a person's eligibility for a REAL ID driver's license or identification card before issuance of the driver's license or identification card.
(a) States must use the following procedures to verify the documents required under this section:
(1) A certified copy of a birth certificate must be verified through the Electronic Verification of Vital Events System, or an alternative approved by DHS. In the event of a non-match, the DMV may not issue a driver's license or identification card to an applicant, and must refer the individual to their birth state's vital statistics office for resolution.
(2) A U.S. passport or Consular report of birth abroad must be verified through existing Department of State systems.
(3) A lawful permanent resident card (Form I-551) or other DHS-issued document demonstrating permanent residency, an EAD (Form I-766 or Form I-688B), Certificate of Citizenship, Certificate of Naturalization, or other documentation issued by DHS demonstrating lawful status, must be verified through the Systematic Alien Verification for Entitlements (SAVE) system operated by DHS, or an alternate verification system approved by DHS. In the event of a non-match to SAVE, the DMV may not issue a driver's license or identification card to an applicant, and must refer the individual to the local USCIS office for resolution.
(4) REAL ID driver's licenses and identification cards must be verified with the State of issuance.
(5) Social security account numbers must be verified by the Social Security Administration's (SSA) electronic database. In the event of a non-match with SSA, a DMV must not issue a driver's license or identification card to an applicant until the information verifies with SSA's database.
(6) Documents demonstrating address of principal residence must be verified by the State in accordance with a system of document verification acceptable to DHS, to ensure that a document produced establishes an individual's address of principal residence.
(a)
(1) These features must not be reproducible using commonly used or available technologies.
(2) The proposed card solution must contain a well designed, balanced set of features that when effectively combined provide multiple layers of security. States must describe these document security features in their security plans pursuant to § 37.41.
(b)
(1) Counterfeiting, simulating, or reproducing a genuine document;
(2) Altering, deleting, modifying, masking, or tampering with data concerning the original or lawful card holder;
(3) Substituting or altering the original or lawful card holder's photograph and/or signature by any means; and
(4) Creating a fraudulent document using components from legitimate driver's licenses or identification cards.
(c)
(1)
(2)
(3)
(d)
(1) An intricate, fine-line, multicolored background design produced via offset lithography that includes microcline printing and an intentional error/field check.
(2) An optically variable feature providing adequate protection against copying. The inclusion of a diffractive optically variable feature is recommended to achieve an enhanced level of protection.
(3) An ultraviolet (UV) long wave responsive feature.
(4) The proposed card solution must include cards constructed such that application of personal data provides for the highest quality of printed information including sufficient depth, clarity and resolution. The application of variable data shall be in a manner that is considered secure and difficult, if not virtually impossible, to erase, modify or otherwise successfully tamper. Some variable data must be applied via laser engraving to include tactile features (that protect the bearer portrait from substitution via thin film overlay) and variable microline text that is specific to the bearer. The laser must effectively penetrate the card layers ensuring that the data is engraved into the layers containing the security characteristics.
(5) A series of check digit numbers or letters printed on the cards.
(6) Incorporation of covert taggants and/or markers.
(e)
(1) The card stock must be UV dull or possess a controlled response to UV, such that when illuminated by UV light it exhibits fluorescence distinguishable in color from the blue used in commonly available fluorescent materials. The card stock must use suitable materials that provide for a highly durable card stock that can survive, at least, an eight-year card life. If the card stock is a multi-layered structure, there must be adequate adhesion and/or tamper evident properties to protect the personalized data and security features contained in the card. The card stock must provide for the highest clarity for information applied.
(2) External surfaces of the cards must be printed using recognized security printing methods to resist duplication or facsimile reproduction by commercially available products. The card must bear a security background pattern designed to be resistant to counterfeiting by scanning, printing or copying. To achieve this, the background pattern shall not be composed of the primary colors Cyan, Magenta, Yellow and Key (Black) (CMYK). The pattern shall show no evidence of half-tone dots, or pixel structure typically found in digital printing technologies.
(3) States must issue REAL ID driver's licenses and identification cards produced on serialized card stock and implement controlled inventory measures that meet recognized industry standards. The State must maintain a record of any missing cards and report the loss to the DMV and to law enforcement.
(4) Driver's licenses and identification cards must contain a revision date that is printed or engraved on the card surface and which must be updated whenever the card design changes.
(5) States must provide DHS with samples of REAL ID driver's licenses and identification cards in a quantity that DHS will specify. The cards provided will be representative of issued driver's licenses and identification cards, produced on equipment identical to that used by the State to issue REAL ID driver's licenses and identification cards, and include all data fields and security features used by the State.
(f)
(i) States must provide DHS with examination results from a recognized independent laboratory experienced with adversarial analysis of identification documents as part of the State's initial certification under § 37.55, and annual certification under § 37.57.
(ii) As part of the State's initial and annual certifications, the State must submit to DHS results from a facility described in paragraph (g)(2)(i) of this section, in the following areas:
(A) Photo substitution.
(B) Delamination and deconstruction.
(C) Reverse engineering.
(D) Modification of any data element.
(E) Erasure of information.
(F) Duplication, reproduction, or facsimile creation.
(G) Effectiveness of security features (three levels).
(H) Confidence and ease of second level authentication.
(iii) The specifics of the lab analysis requirements and the analysis results are Sensitive Security Information (SSI) and will be handled in a manner consistent with DHS regulations concerning SSI at 49 CFR part 1520.
(iv) DHS may change lab analysis requirements under this section upon notice to the State and opportunity for comment or immediately if DHS determines that there is a need for immediate application of the new requirements.
To be acceptable by a Federal agency for official purposes, REAL ID driver's licenses and identification cards must include on the face of the card the following information:
(a)
(b)
(c)
(d)
(e)
(1) Lighting shall be equally distributed on the face.
(2) The face from crown to the base of the chin, and from ear-to-ear, shall be clearly visible and free of shadows. States use photographs in profile rather than ear-to-ear to differentiate licensees that are under the age of 21.
(3) Veils, scarves or headdresses must not obscure any facial features and not generate shadow. The person may not wear eyewear that obstructs the iris or pupil of the eyes.
(4) There must be no dark shadows in the eye-sockets due to the brow. The iris and pupil of the eyes shall be clearly visible.
(5) Care shall be taken to avoid “hot spots” (bright areas of light shining on the face).
(f)
(1) If the individual is enrolled in a State address confidentiality program;
(2) If the individual's address is entitled to be suppressed under State or Federal law or suppressed by a court order; or
(3) If the individual is protected from disclosure of information pursuant to section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
(g)
(h)
(i)
(j)
(k)
(l)
For the machine readable portion of the REAL ID driver's license or identification card, States must use PDF417 2D bar code standard, with the following defined minimum data elements:
(a) Expiration date.
(b) Holder's name. The machine readable portion of the card must have at least 125 characters to permit capture of the full name history, including full legal name and all name changes.
(c) Issue date.
(d) Date of birth.
(e) Gender.
(f) Address.
(g) Unique identification number.
(h) Revision date, indicating the most recent change or modification to the visible format of the driver's license or identification card.
(i) Inventory control number of the physical document.
States may issue only a temporary driver's license or identification card to an individual who has temporary lawful status in the United States.
(a) States must require, before issuing a temporary driver's license or identification card to a person, valid documentary evidence that the person has lawful status in the United States, as determined by DHS, and verification of that status through SAVE.
(b) States shall not issue a temporary driver's license or identification card pursuant to this section:
(1) For a time period longer than the expiration of the applicant's authorized stay in the United States, or, if there is no expiration date, for a period longer than one year.
(2) For longer than eight years or the State's maximum driver's license or identification card term.
(c) States shall renew a temporary driver's license or identification card pursuant to this section and § 37.23(b)(2), only if:
(1) The individual presents valid documentary evidence that the status by which the applicant qualified for the temporary driver's license or identification card has been extended by DHS, or
(2) The individual presents valid documentary evidence that they have qualified for another lawful status under paragraph (a) of this section, and such continued or new status is verified through SAVE.
(d) States must verify the documents an individual presents to establish his or her temporary lawful status through SAVE.
(e) Temporary driver's licenses and identification cards must clearly state on the face of the driver's license or identification card in bold lettering, and in the machine readable zone of the driver's license or identification card, that it is temporary.
(a)
(b)
(1)
(i) The State must re-verify information from the images or copies of the source documents used as the basis for issuance of the original REAL ID driver's license or identification card at each renewal and reissuance in accordance with § 37.13 of this part.
(ii) Any information that has changed since prior issuance (such as name or address) must be established through presentation of an original source document as provided in Subpart B, and must be verified, or, in the case of address, validated.
(iii) The process described in paragraph (b) of this section applies any time a driver's license or identification card is renewed or reissued for any purpose.
(2)
(i) The State shall take an updated photograph of the applicant, at least at every other renewal.
(ii) The States must re-verify information and source documents used as the basis for issuance of the original REAL ID driver's license or identification card, or must require the individual to resubmit documents and verify those documents.
(iii) Holders of temporary REAL ID driver's licenses and identification cards must renew their driver's license or identification card in person each time, and present evidence of continued lawful status.
States must retain copies of the application, declaration and source documents presented under § 37.11 of this part.
(a) States that choose to keep paper copies of source documents must retain the copies for a minimum of seven years.
(b) States that choose to transfer information from paper copies to microfiche must retain the microfiche for a minimum of seven years.
(c) States that choose to keep digital images of source documents must retain the images for a minimum of ten years.
(1) States currently using black and white imagers must replace them with color imagers by December 31, 2011.
(2) States using digital imaging to retain source documents, must use the AAMVA Digital Image Exchange Program, or a standard other than AAMVA that has interoperability with the AAMVA standard, so that the digital images are retained in electronic storage in a transferable format.
(i) Photo images must be stored in the Joint Photographic Experts Group (JPEG) 2000 standard for image compression, or a standard that is interoperable with the JPEG standard.
(ii) Document and signature images must be stored in a compressed Tagged Image Format (TIF), or a standard that is interoperable with the TIF standard.
(iii) All images must be linked to the applicant through the applicant's unique identifier assigned by the DMV.
(a) States must maintain a State motor vehicle database that contains, at a minimum—
(1) All data fields printed on driver's licenses and identification cards issued by the State, individual serial numbers of the card, and Social Security Number; and
(2) Motor vehicle driver's histories, including motor vehicle violations, suspensions, and points on driver's licenses.
(b) States must provide to all other States electronic access to information contained in the motor vehicle database of the State, in a manner approved by DHS pursuant to this regulation. This section does not intend to supersede DOT requirements codified at 49 CFR parts 383 and 384.
(c) Prior to issuing a REAL ID driver's license or identification card, States must check with all other States to determine if any State has already issued a REAL ID driver's license or identification card to the applicant.
(1) If the State receives confirmation that the individual currently holds a REAL ID driver's license or identification card issued by another State, the receiving State must:
(i) Take measures to confirm that the person has taken steps to terminate, or has terminated, the REAL ID driver's license or identification card issued by the prior State.
(ii) Require the person to surrender the REAL ID driver's license or identification card issued by another State, unless the person signs a declaration under penalty of perjury pursuant to 28 U.S.C. 1746 stating that the driver's license or identification card was lost or stolen.
(iii) If the person signs a declaration stating that the driver's license or identification card was lost or stolen in another State, the State receiving the declaration must inform the State that issued the driver's license or identification card that it has been reported as lost or stolen.
(iv) The State that issued the driver's license or identification card reported as lost or stolen must record that information on its database and terminate that driver's license or identification card upon notice from another State.
(a) States must prepare a comprehensive security plan for all State DMV offices and driver's license/identification card storage and production facilities, and submit it as part of its application for certification.
(b) At a minimum, the security plan must address—
(1) Physical security for the following:
(i) Buildings used to manufacture or issue driver's licenses and identification cards.
(ii) Storage areas for card stock and other materials used in card production.
(iii) Reasonable administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of the physical location and the personal information stored and maintained in DMV records and information systems.
(2) Document and physical security features for the face of the card, consistent with the requirements of § 37.15, including a description of the State's use of biometrics, and the technical standard utilized, if any;
(3) Access control, including the following:
(i) Employee identification and credentialing, including access badges.
(ii) Employee background checks, in accordance with § 37.45.
(iii) Controlled access systems.
(4) Periodic training requirements in—
(i) Fraudulent document recognition, approved by DHS, for appropriate employees engaged in the issuance of driver's licenses and identification cards.
(ii) Domain awareness training including threat identification;
(5) Privacy policy regarding personal information collected and maintained by the DMV;
(6) Emergency/incident response plan;
(7) Internal audit controls;
(8) The State's standards and procedures for safeguarding information collected, stored, or disseminated for purposes of complying with the REAL ID Act, including procedures to prevent unauthorized access, use, or dissemination of applicant information and images of source documents retained pursuant to the Act and standards and procedures for document retention and destruction;
(9) Procedures to revoke and confiscate driver's licenses or identification cards fraudulently issued in another State;
(10) An affirmation that the State possesses both the authority and the means to produce, revise, expunge, and protect the confidentiality of REAL ID driver's licenses or identification cards issued in support of Federal, State, or local criminal justice agencies or programs that require special licensing or identification to safeguard persons or support their official duties. These procedures must be designed in coordination with the key requesting authorities to ensure the procedures are effective and to prevent conflicting or inconsistent requests. In order to safeguard the identities of individuals, these procedures should not be discussed in the plan and States should make every effort to prevent disclosure to those without a need to know about either this confidential procedure or any substantive information that may compromise the confidentiality of these operations. The appropriate law enforcement official and United States Attorney should be notified of any action seeking information that could compromise Federal law enforcement interests; and
(11) Other information as determined by DHS.
(a) States must ensure the physical security of locations where driver's licenses and identification cards are produced, and the security of document materials and papers from which driver's licenses and identification cards are produced. State compliance with a performance-based standard approved by DHS will satisfy this requirement.
(b) States must describe the security of DMV facilities as part of their comprehensive security plan, in accordance with § 37.41.
(a)
(b)
(1)
(i)
(ii)
(iii)
(iv)
(v)
(2)
(3)
(4)
(c)
(a) To be in compliance with the REAL ID Act of 2005, 49 U.S.C. 30301 note, States must be meeting each and every standard of subparts A through D of this part, or have a REAL ID program that DHS has determined to be comparable to the standards of subparts A through D. DHS will find that a State is in compliance with REAL ID only if the State's certification submitted pursuant §§ 37.55 and 37.57 of this part establishes that all REAL ID driver's licenses and identification cards issued by the State on or after May 11, 2008 will meet the standards required under the REAL ID Act and this part.
(b) States must meet the requirements of subparts A through D of this part no later than May 11, 2008. In order to satisfy this requirement, a State must demonstrate compliance with this part
(c) States must demonstrate continued compliance by submitting a certification and documents specified at § 37.57 of this part as required by DHS.
States seeking DHS's determination that its program for issuing REAL ID driver's licenses and identification cards is meeting the requirements of this part, must provide DHS with the following documents and information no later than February 10, 2008:
(a) A detailed narrative description of the State's program for issuing REAL ID driver's licenses and identification cards, including a description of the State's exceptions processing under § 37.11(h), the State's waiver processes under § 37.45(b)(1)(v).
(b) The State's Comprehensive Security Plan under § 37.41.
(c) A letter from the Attorney General of the State confirming that the State has the legal authority to impose requirements necessary to meet the standards established by this part.
(d) A copy of all statutes, regulations, administrative procedures and practices, and other documents that demonstrate the State's implementation program for this part.
(e) A certification by the Governor of the State reading as follows:
I, Governor of the State (Commonwealth) of __, do hereby certify that the State (Commonwealth) has implemented a program for issuing driver's licenses and identification cards in compliance with the requirements of the REAL ID Act of 2005, as further defined in 6 CFR part 37, and intends to remain in compliance with these regulations through [the last date of the current year].
Prior to January 1 of each year, each State must review its compliance with this part and certify to the Department of Homeland Security as prescribed in paragraph (a) of this section.
(a) The certification must consist of a Statement signed by the Governor of the State, reading as follows:
I (name of certifying official), (position title), of the State (Commonwealth) of __, do hereby certify that the State (Commonwealth) has continuously been in compliance with all requirements of the REAL ID Act of 2005 as further defined in 6 CFR part 37, since [the first day of the current Federal fiscal year], and intends to remain in compliance through [the last date of the current year].
(b) States shall provide DHS any changes to the information requiring certification, at least 30-days prior to the changes going into effect in the State.
(c) States shall supply the comprehensive security plan under § 37.41 of this part and a quarterly accounting of the State's use of its exceptions process, and the report required by § 37.15(f)(1) to DHS as part of the annual certification.
States' REAL ID programs will be subject to DHS review to determine whether or not the State meets the requirements for compliance with this part.
(a)
(b)
(c)
(1) The State must provide documentation of corrective action. Corrective action must be adequate to correct the deficiencies noted in the program review and be implemented on a schedule mutually agreed upon by DHS and the State.
(2) Upon request by the State, an informal conference will be provided during this time.
(d)
(e)
(a) DHS will determine that a State is not in compliance with this part when it—
(1) Fails to submit the certification as prescribed in this subpart; or
(2) Does not meet one or more of the standards of this part, as established in a final determination by DHS under this section.
(b) A State shall be deemed in compliance with this part when DHS issues a determination that the State meets the requirements of this part.
A State may request a deadline extension based on the lack of a final REAL ID regulation to guide its implementation by filing a request with the Secretary no later than October 1, 2007.
(a) The request for consideration shall state that the State needs sufficient time to consider the final rule and will not otherwise be in a position to comply with the final rule.
(b) The Secretary has determined that, in the absence of extraordinary circumstances, such an extension request will be deemed justified for a period lasting until, but not beyond, December 31, 2009, providing that the requesting State complies with the requirements of this section.
(c) Any State receiving an extension for expedited consideration shall submit to the Secretary no later than six months from the date on which the extension is granted a Compliance Plan detailing milestones, schedules, and budgets allowing it to meet the requirements of the final regulation.
(d) After the Compliance Plan is submitted, the Secretary may require such progress reports or other information as the Secretary determines to be necessary to evaluate the State's progress toward compliance by December 31, 2009.
(a) After May 11, 2013, any driver's license or identification card issued by
(b) If a driver's license or identification card issued when a State was in compliance with these regulations is renewed, the renewed driver's license or identification card is acceptable by Federal agencies for official purposes, only if the State is in compliance with these regulations at the time of renewal.
States that issue driver's licenses and identification cards that do not satisfy the standards of this part after May 11, 2008, must ensure that such driver's licenses and identification cards—
(a) Clearly state, on their face in bold lettering, as well as in the machine readable zone if the card contains one, that they may not be accepted by any Federal agency for Federal identification or other official purpose; and
(b) Have a unique design or color indicator that clearly distinguishes them from driver's licenses and identification cards that meet the standards of this part.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to reorganize and rewrite in plain language regulations concerning special and ancillary benefits for veterans, dependents, and survivors. These revisions are proposed as part of VA's rewrite and reorganization of all of its compensation and pension rules in a logical, claimant-focused, and user-friendly format. The intended effect of the proposed revisions is to assist claimants and VA personnel in locating and understanding these provisions.
Comments must be received by VA on or before May 8, 2007.
Written comments may be submitted through
William F. Russo, Director of Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-9515.
The Secretary of Veterans Affairs has established an Office of Regulation Policy and Management (ORPM) to provide centralized management and coordination of VA's rulemaking process. One of the major functions of this office is to oversee a Regulation Rewrite Project (the Project) to improve the clarity and consistency of existing VA regulations. The Project responds to a recommendation made in the October 2001 “VA Claims Processing Task Force: Report to the Secretary of Veterans Affairs.” The Task Force recommended that the compensation and pension regulations be rewritten and reorganized in order to improve VA's claims adjudication process. Therefore, the Project began its efforts by reviewing, reorganizing and redrafting the content of the regulations in 38 CFR part 3 governing the compensation and pension program of the Veterans Benefits Administration. These regulations are among the most difficult VA regulations for readers to understand and apply.
Once rewritten, the proposed regulations will be published in several portions for public review and comment. This is one such portion. It adds subpart H, which includes proposed rules regarding the special and ancillary benefits for veterans, dependents, and survivors. After review and consideration of public comments, final versions of these proposed regulations will ultimately be published in a new part 5 in 38 CFR.
We plan to organize the part 5 regulations so that all provisions governing a specific benefit are located in the same subpart, with general provisions pertaining to all compensation and pension benefits also grouped together. We believe this organization will allow claimants, beneficiaries, and their representatives, as well as VA personnel, to find information relating to a specific benefit more quickly than the organization provided in current part 3.
The first major subdivision would be “Subpart A—General Provisions.” It would include information regarding the scope of the regulations in new part 5, delegations of authority, general definitions, and general policy provisions for this part. This subpart was published as proposed on March 31, 2006.
“Subpart B—Service Requirements for Veterans” would include information regarding a veteran's military service, including the minimum service requirement, types of service, periods of war, and service evidence requirements. This subpart was published as proposed on January 30, 2004.
“Subpart C—Adjudicative Process, General” would inform readers about claims and benefit application filing procedures, VA's duties, rights and responsibilities of claimants and beneficiaries, general evidence requirements, and general effective dates, as well as revision of decisions and protection of VA ratings. This subpart will be published as three separate Notices of Proposed Rulemaking (NPRM)s due to its size. The first of these three separate NPRMs, concerning VA's duties and the rights and responsibilities of claimants and beneficiaries, was published as proposed on May 10, 2005.
“Subpart D—Dependents or Survivors of Veterans” would inform readers how VA determines whether an individual is a dependent or a survivor of a veteran. It would also provide the evidence requirements for these determinations. This subpart was published as proposed on September 20, 2006.
“Subpart E—Claims for Service Connection and Disability Compensation” would define service-connected disability compensation,
“Subpart F—Nonservice-Connected Disability Pensions and Death Pensions” would include information regarding the three types of nonservice-connected pension: Improved Pension, Old-Law Pension, and Section 306 Pension. This subpart would also include those provisions that state how to establish entitlement to Improved Pension, and the effective dates governing each pension. This subpart will be published as two separate NPRMs due to its size. The portion concerning Old-Law Pension, Section 306 Pension, and elections of Improved Pension was published as proposed on December 27, 2004.
“Subpart G—Dependency and Indemnity Compensation, Death Compensation, and Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary” would contain regulations governing claims for dependency and indemnity compensation (DIC); death compensation; accrued benefits; benefits awarded, but unpaid at death; and various special rules that apply to the disposition of VA benefits, or proceeds of VA benefits, when a beneficiary dies. This subpart would also include related definitions, effective-date rules, and rate-of-payment rules. This subpart will be published as two separate NPRMs due to its size. The portion concerning accrued benefits, special rules applicable upon the death of a beneficiary, and several effective date rules, was published as proposed on October 1, 2004.
“Subpart H—Special and Ancillary Benefits for Veterans, Dependents, and Survivors” would pertain to special and ancillary benefits available, including benefits for children with various birth defects. This subpart is the subject of this document.
“Subpart I—Benefits for Certain Filipino Veterans and Survivors” would pertain to the various benefits available to Filipino veterans and their survivors. This subpart was published as proposed on June 30, 2006.
“Subpart J—Burial Benefits” would pertain to burial allowances.
“Subpart K—Matters Affecting the Receipt of Benefits” would contain those provisions regarding bars to benefits, forfeiture of benefits, and renouncement of benefits. This subpart was published as proposed on May 31, 2006.
“Subpart L—Payments and Adjustments to Payments” would include general rate-setting rules, several adjustment and resumption regulations, and election-of-benefit rules. Because of its size, proposed regulations in subpart L will be published in two separate NPRMs.
The final subpart, “Subpart M—Apportionments and Payments to Fiduciaries or Incarcerated Beneficiaries,” would include regulations governing apportionments, benefits for incarcerated beneficiaries, and guardianship.
Some of the regulations in this NPRM cross-reference other compensation and pension regulations. If those regulations have been published in this or earlier NPRMs for the Project, we cite the proposed part 5 section. We also include, in the relevant portion of the
Because of its large size, proposed part 5 will be published in a number of NPRMs, such as this one. VA will not adopt any portion of part 5 as final until all of the NPRMs have been published for public comment.
In connection with this rulemaking, VA will accept comments relating to a prior rulemaking issued as a part of the Project, if the matter being commented on relates to both NPRMs.
This NPRM pertains to the VA adjudication rules that concern special and ancillary benefits for veterans, dependents, and survivors. The document addresses the rules that govern special benefits, such as § 3.802 related to Medal of Honor, § 3.801 related to special acts of Congress, and § 3.814 related to children with spina bifida. We will also address the rules that govern ancillary benefits for which veterans with certain service-connected disabilities are eligible. These include the current § 3.808 related to certification for automobiles or other conveyances under 38 U.S.C. 3902; and § 3.810 related to the clothing allowance under 38 U.S.C. 1162. While these regulations have been substantially restructured and rewritten for greater clarity and ease of use, most of the basic concepts contained in these proposed regulations are the same as in their existing counterparts in 38 CFR part 3. However, a few substantive changes are proposed. We specifically note in the NPRM where the substantive changes occur.
The following table shows the relationship between the current regulations in part 3 and the proposed regulations contained in this NPRM:
Readers who use this table to compare existing regulatory provisions with the proposed provisions, and who observe a substantive difference between them, should consult the text that appears later in this document for an explanation of significant changes in each regulation. Not every paragraph of every current part 3 section regarding the subject matter of this rulemaking is accounted for in the table. In some instances other portions of the part 3 sections that are contained in these proposed regulations appear in subparts of part 5 that will be published for public comment at a later time. For example, a reader might find a reference to paragraph (a) of a part 3 section in the table, but no reference to paragraph (b) of that section because paragraph (b) will be addressed in a separate NPRM. The table also does not include provisions from part 3 regulations that will not be carried forward to part 5. Such provisions are discussed specifically under the appropriate part 5 heading in this preamble. Readers are invited to comment on the proposed part 5 provisions and also on our proposals to omit those part 3 provisions from part 5.
Current § 3.802 and the authorizing statutes, 38 U.S.C. 1560(c), 1561(c), and 1562, use the phrase “special pension” to reference benefits payable under those provisions to Medal of Honor recipients. In order to make this regulation more specific, however, VA proposes to use the phrase “Medal of Honor pension” when referring to benefits paid under proposed § 5.580.
Proposed § 5.580 restates in plain language current § 3.802, regarding allocation of responsibilities between the service departments and VA with regard to Medal of Honor pension.
Current § 3.802(a) consists of two sentences. The first sentence briefly explains that the Secretaries of the Armed Forces and of the Department of Transportation are responsible for determining whether an applicant has been placed on the Medal of Honor Roll and for delivering to VA a certified copy of the certificate noting that the applicant has been placed on the Medal of Honor Roll and has a right to the Medal of Honor pension. The second sentence states: “The special pension will be authorized on the basis of such certification.” The current regulation does not clearly indicate that VA is authorized to pay the pension to a person placed on the Medal of Honor Roll.
We propose to divide current § 3.802(a) into two paragraphs. Proposed § 5.580(a) explains that the service departments are responsible for determining the eligibility of an applicant to be entered on the Medal of Honor Roll, a determination in which VA has no role. We also propose in § 5.580 to refer to the Department of Homeland Security instead of the Department of Transportation. This change is needed because the United States Coast Guard now falls under the jurisdiction of the Department of Homeland Security. Homeland Security Act of 2002, Public Law 107-296, § 888(b), 116 Stat. 2249. Proposed § 5.580(b) clarifies that it is the responsibility of VA to award the Medal of Honor pension after it receives a certified copy of the certificate. The authorities for proposed § 5.580(a) and (b) are 38 U.S.C. 1560 and 38 U.S.C. 1561.
Proposed § 5.580(c) describes how VA calculates the amount and effective date of the Medal of Honor pension award and the retroactive lump sum payment associated with the pension award. Current § 3.802(b) provides, in part: “An award of special pension at the monthly rate specified in 38 U.S.C. 1562 will be made as of the date of filing of the application [for placement on the Medal of Honor Roll] with the Secretary concerned.” This sentence is split into proposed § 5.580(c)(1) and (c)(2) and restated in plain language.
Proposed § 5.580(c)(3) is a restatement in plain language of current § 3.802(c), with the exception of the last sentence of § 3.802(c). The last sentence states “VA will not make a retroactive lump sum payment under this section before October 1, 2003.” We propose not to include this sentence in § 5.580(c) because, due to the passage of time, it no longer serves any useful purpose.
In keeping with our objective to consolidate material concerning the same benefit, we propose to repeat the content of current § 3.27(d) relating to automatic adjustments of Medal of Honor pension in proposed § 5.580(c)(4) without substantive change. We propose to title § 5.580(c)(4) “Automatic annual adjustment.”
Proposed § 5.580(d) is based, in part, on current § 3.802(b). The first sentence of proposed § 5.580(d) is derived from the current rule. The second sentence of proposed § 5.580(d) restates 38 U.S.C. 1562(c): “Pensions payable under this section are not subject to any attachment, execution, levy, tax lien, or detention under any process whatever.” We propose to add this statement to the regulation in order to emphasize the protections afforded the Medal of Honor pension.
Proposed § 5.580(e) restates the last sentence of current § 3.802(b) which explains that a veteran is entitled to only one Medal of Honor pension even
Proposed § 5.581 restates current § 3.801, governing awards of VA benefits based on a special act of Congress, and adds language clarifying the existing rule.
Proposed § 5.581(a) restates the definition of a “special act” from current § 3.801(a), also called a “private law,” as an act of Congress that authorizes VA to pay benefits to a particular person.
Proposed § 5.581(b) clarifies the rule stated in current § 3.801(a) that VA will not award benefits based on a special act until a claimant-beneficiary has filed a formal application. The purpose of this provision is to ensure that VA has all of the necessary information (such as full name, address, military status, etc.), and that the information is current and accurate, in order to properly identify and make payments to the beneficiary.
Proposed § 5.581(c) restates current § 3.801(c)(2) and (d), with clarification. The rule pertains to a special act that modifies the dates of a veteran's service or the character of a former servicemember's discharge. We propose to restate current § 3.801(c)(2) in plain language as § 5.581(c)(1).
Current § 3.801(d) provides that a special act that shows a person commenced service in the active military service on a particular date and was honorably discharged on a subsequent date “is sufficient regardless of whether the service department has any record of such service.” In § 5.581(c)(2), we propose to characterize a special act as “conclusive” rather than “sufficient” proof of the period of service described in the special act. For VA purposes, Congress' act on the matter is conclusive and no further investigation of the veteran's period of service is authorized.
Proposed § 5.581(d) restates in plain language current § 3.801(b). Paragraph (d) states that VA will pay the benefit in accordance with the rate, effective date, and duration prescribed in a special act. If the special act does not provide for the rate, effective date, or duration of payments, VA will set them consistent with existing public law.
Proposed § 5.581(e) describes two situations where the rate of pension or disability compensation may be changed. Proposed paragraph (e)(1), based on current § 3.801(e), states that the rate of pension may be reduced when a payee is hospitalized. Proposed paragraph (e)(2) states that the rate of pension or disability compensation may be reduced when a payee is incarcerated. This is a new provision based on section 1505 of Title 38, United States Code, and 38 CFR 3.666, which prohibit the payment of pension under private laws administered by VA to an individual who is imprisoned for more than 60 days in a Federal, State, or local penal institution. It is also based on section 5313 of Title 38, United States Code, and 38 CFR 3.365, which prohibit the payment of VA disability compensation to an individual who is imprisoned for more than 60 days in a Federal, State, or local penal institution. Although section 5313 and 38 CFR 3.365 do not specify that they are applicable to compensation paid under private law, there is no indication that they would apply only to compensation paid under public laws.
Proposed paragraph § 5.581(f) is based on current § 3.801(c)(1), which states that VA will not pay any other pension or disability compensation award other than the award authorized by the special act, unless the payee makes an election or unless the special act expressly authorizes VA to do so. We note that this provision might be problematic if it prohibits payment for a disability other than the disability for which payments are awarded under the special act. For example, if a special act awarded disability compensation for a back injury, VA should not be precluded from paying additional compensation for a different service-connected condition. Therefore, we have amended the provision to state that if VA is authorized to pay pension or disability compensation by a special act, it may not pay any other pension or disability compensation award to the extent that such award would be duplicative under section 5304 of Title 38, United States Code. Thus, the payee will be prevented from receiving more than one award for the same disability, but will not be prevented from receiving an award for a different disability or manifestation of disability.
We propose to repeat the content of current §§ 3.803 (Naval Pension), 3.804 (Special allowance under 38 U.S.C. 1312), and 3.805 (Loan guaranty for surviving spouses; certification), in §§ 5.582, 5.583, and 5.584, respectively, without making any substantive changes to the text of the rules. We note that these sections do not have internal paragraph headings to identify the subject matter contained therein. Therefore, we propose to insert paragraph headings where appropriate to aid the reader in locating subject matter and to make these regulations easier to read.
Further, in proposed § 5.582, we inserted the word “disability” before the word “compensation” in each instance to be consistent with other regulations in this NPRM. For the purpose of clarity and to avoid confusion between naval pension and VA pension, we propose not to use the phrase “disability pension,” which appears in current § 3.803(b), in § 5.582. We propose to place the word “VA” before the phrase “pension or disability compensation” in order to distinguish the Department of Defense programs from the VA programs.
Proposed § 5.582(c) is based on current § 3.803(c), which states that new awards of naval pension may not be made concurrently with VA pension or compensation. We note that the meaning of “new” is ambiguous. It is actually referring to awards of naval pension made on or after July 14, 1943.
Proposed § 5.583(b)(1) is based on current § 3.804(b)(1), which states that the special allowance under 38 U.S.C. 1312 is not payable where the veteran's death resulted from VA hospitalization, treatment, examination, or training. The purpose of this provision is to exclude deaths treated “as if” service connected, because such deaths do not meet the criteria of 38 U.S.C. 1312(a)(2). Since § 3.804 was promulgated, however, the criteria of 38 U.S.C. 1151 (authorizing dependency and indemnity compensation for deaths treated “as if” service connected because death was due to VA treatment or vocational rehabilitation) have been expanded, and 38 U.S.C. 1318 (authorizing dependency and indemnity compensation for certain deaths treated “as if” service connected because the veteran was rated totally disabled at time of death) has been enacted. Therefore, current § 3.804(b)(1) has been rewritten in proposed § 5.583(b)(1) to encompass this expanded criteria for deaths that may be treated “as if” service connected. We have included a reference to proposed § 5.510(b)(2) and (3), which address deaths treated “as if” service connected under 38 U.S.C. 1151 and 1318. No substantive change is intended.
Proposed § 5.583(e)(1)(ii) is based on current § 3.804(e)(1)(ii), which states that the special allowance is payable for
In proposed § 5.583(e)(2)(ii), the counterpart to current § 3.804(e)(2)(ii), we have replaced the reference to current § 3.1(m) with proposed § 5.660, which was published in Subpart K on May 31, 2006.
We propose to reword the text of current § 3.806 for the sake of clarity. Current paragraph (a) refers to situations where VA makes a certification based on a claim filed with it, and current paragraph (b) refers to situations where VA makes a certification at the request of the Secretary concerned. As VA must go through the same determination criteria in either situation, we propose to combine paragraphs (a) and (b), as there is no need for them to be separate. Current paragraph (c) (which is proposed paragraph (b)) has also been slightly reorganized.
Proposed § 5.586 is based on current § 3.807 relating to certification for DEA. We note that the current provisions of § 3.807(a) and (b) are redundant of provisions already contained in § 21.3021. The provisions of § 3.807(a) appear in § 21.3021(a). The provisions of § 3.807(b) appear in § 21.3021(b), with the exception of the sentence stating that service-connected disability or death must have been the result of active military, naval, or air service on or after April 21, 1898. (Pub. L. 8-358). However, due to the passage of time, this date is no longer necessary and no longer needs to be included in this regulation. Further, the requirement that the service-connected disability or death must have been the result of active military, naval, or air service is necessarily implied in the eligibility requirements of § 21.3021(a), that the veteran has or had a service-connected disability. A service-connected disability or death is, by statutory definition, the result of active military, naval, or air service.
Instead of repeating the same criteria already contained in § 21.3021, we propose to simply refer the reader to § 21.3021 for the eligibility criteria. This will prevent possibly conflicting substantive provisions, and will prevent the necessity of amending two regulations for the same provision. We have also added a brief description of DEA.
Proposed § 5.586(b) is based on the second sentence of § 3.807(c), which indicates that the standards and criteria for determining service connection, either direct or presumptive, are those applicable to the period of service during which the disability was incurred or aggravated.
Proposed § 5.586(c)(1) is based on the first sentence of § 3.807(c), which states that a disability treated as if service connected under § 3.383(a) (paired organs and extremities) is included for purposes of determining eligibility for DEA. Proposed § 5.586(c)(2) is based on the third sentence of § 3.807(c), which states that a disability treated as if service connected under §§ 3.358, 3.361, or 3.800 (disability or death due to hospitalization or vocational rehabilitation) is not included for purposes of determining eligibility for DEA.
Proposed § 5.586(d) is based on current § 3.807(d), containing the definitions of child, spouse, and surviving spouse for purposes of determining eligibility for DEA. Paragraph (d)(1), pertaining to the definition of “child,” remains essentially unchanged, since the definition is particular to eligibility for DEA. In paragraph (d)(2), we propose to add that a spouse means a person of the opposite sex. Currently, (d)(2) merely refers the reader to the appropriate regulation, § 3.50 (proposed § 5.190), for that definition. The reader is still referred to the appropriate regulation (old § 3.1(j); proposed § 5.190) for the requirements of a valid marriage. Paragraph (d)(3) is reworded but contains no substantive change.
We propose to repeat the content of current §§ 3.811 and 3.812 in §§ 5.587 and 5.588 without making any substantive changes to the text of these rules. We note that current § 3.811 is without internal paragraph headings in certain places to properly identify the subject matter. Therefore, we propose to insert paragraph headings in proposed § 5.587(b)(2)-(d) as appropriate guideposts to aid the reader in locating subject matter and to make the regulation easier to read. For the purpose of consistency in usage between the various NPRMs, we propose to substitute the terms “discontinue” and “discontinuance” in place of “terminate” and “termination” in §§ 5.587(e) and 5.588.
We propose to revise the titles of current §§ 3.814 and 3.815, respectively. We propose to revise the title of current § 3.814 (proposed § 5.589) to read, “Monetary allowance for Vietnam veterans’ children born with spina bifida.” We believe that this title more accurately and completely represents the content of the rule. For the same reason, we propose to amend the title of current § 3.815 (proposed § 5.590), to read, “Monetary allowance for female Vietnam veterans’ children with certain birth defects.” The proposed titles make the regulations easier to locate and identify in part 5.
We note that the second sentence of § 3.814(a), which indicates that a recipient of a monetary allowance under chapter 18 is not prevented from receiving other VA benefits, is substantively the same provision as found in § 3.815(b), which uses slightly different language. We think the provisions in each regulation should use the same language, however, because they are both based on the same statute, 38 U.S.C. 1823. Therefore, in proposed § 5.589, we have added paragraph (b), which is identical to the paragraph found in current § 3.185(b) and proposed § 5.590(b). For this reason, the second sentence of § 3.814(a) is not carried over to proposed § 5.589.
Current §§ 3.814 and 3.815 use the phrase “active military, naval, or air service” to refer to qualifying service for benefits under those regulations. VA has previously proposed, with regard to the regulations relating to service requirements for veterans, to use the term “active military service” in lieu of the longer term “active military, naval, or air service” in 38 U.S.C. 101(24) and current part 3. 69 FR 4820, 4822 (2004). In order to maintain consistency, we propose to use the same phrase in these regulations pertaining to special and ancillary benefits. Note that, as an equivalent to the longer “active military, naval, or air service,” “active military service” is a broader term than “active duty.” Compare 38 U.S.C. 101(21) with 38 U.S.C. 101(24).
Neither the authorizing statutes nor the current regulations concerning these monetary allowances define “service in the Republic of Vietnam”. To promote consistency among VA adjudications and because we believe it reflects Congressional intent in enacting Chapter 18, we propose to cross reference our proposed definition of the phrase as it applies to veterans seeking a presumption of exposure to herbicides, contained in § 5.262(a)(1).
We propose to move the effective date provisions of these rules, §§ 3.814(e) and (f) and 3.815(i) and (j), to a new regulation, § 5.591.
Pursuant to 38 U.S.C. 1805(a), VA is required to pay “a monthly allowance * * * to any child of a Vietnam veteran for any disability resulting from spina bifida suffered by such child.” Current §§ 3.403(b) and 3.814 implement 38 U.S.C. 1805. Similarly, VA is required by 38 U.S.C. 1815(a) to pay “a monthly allowance to any eligible child for any disability resulting from the covered birth defects of that child.” The term “eligible child” is defined in 38 U.S.C. 1811 as a child of a “woman Vietnam veteran” who “was born with one or more covered birth defects.” Current §§ 3.403(c) and 3.815 implement 38 U.S.C. 1815.
The effective date of awards (and discontinuances or reductions of awards) of the monthly allowances described above are governed by 38 U.S.C. 1832, which incorporates the provisions of 38 U.S.C. 5110(a), (b)(2), (g), and (i); and 5112(a) and (b)(1), (6), (9), and (10). Currently, the effective date rules that implement these statutory provisions are found in several part 3 regulations. The effective date rules for awards based on spina bifida under current § 3.814 appear in current §§ 3.814(e) and (f), 3.403(b), and 3.503(b). The effective date rules for awards based on birth defects under current § 3.815 appear in current §§ 3.815(i) and (j), 3.403(c), and 3.503(b). Much of the language in these rules is repetitive and can be simplified. We propose to reduce the repetition and increase the clarity in these rules by consolidating the effective date provisions located in current §§ 3.814 and 3.815 with the provisions located in current §§ 3.403 and 3.503, resulting in one comprehensive rule. We propose § 5.591 as that new comprehensive rule.
The introductory paragraph of proposed § 5.591 outlines the scope of the proposed rule. Proposed § 5.591(a) provides the general rule for determining the effective date of an award for the monetary allowances governed by the proposed rule. It restates content from current §§ 3.403(b) and (c), 3.814(e), and 3.815(i), all of which restate the general rule articulated in 38 U.S.C. 5110(a). The general effective date statute, section 5110(a), is applicable to monthly allowances set forth in current §§ 3.814 and 3.815, pursuant to 38 U.S.C. 1832(b)(2).
Proposed § 5.591(a)(1) and (a)(2) each limit the effective date of a monetary allowance to no earlier than the effective dates of 38 U.S.C. 1805 and 1815. This limitation is required by 38 U.S.C. 5110(g), which states that the effective date of an award or increase in benefits pursuant to an Act or administrative issue “shall not be earlier than the effective date of the Act or administrative issue.” Subsection (g) of section 5110 is made applicable to these monetary awards by 38 U.S.C. 1832(b)(2).
Proposed § 5.591(a)(3) restates material currently found in § 3.403(b) and (c) and § 3.815(i), which is that the effective date of a monetary allowance will be the child's date of birth if the claim is received within a year of the birth date.
Proposed § 5.591(a)(4) states that VA will apply the rule in § 3.400(g), which governs effective dates in cases where entitlement is established because of the correction of military records. This rule is applicable under 38 U.S.C. 1832(b)(2) and 5110(i). Currently, the rule is restated in §§ 3.814(e)(2) and 3.815(i)(2). We propose to simply refer the reader to the actual rule, § 3.400(g), instead of restating it.
Proposed § 5.591(a)(5) states that in a claim for increase of a monetary allowance, VA will apply the rule in § 3.400(o)(2), pertaining to the effective date of an increase of compensation due to an increase in disability. This rule is applicable pursuant to U.S.C. 5110(b)(2) and 1832(b)(2). Currently, §§ 3.814(e)(1) and 3.815(i)(1) restate the rule. We propose to simply refer the reader to the actual rule, § 3.400(o)(2), instead of restating it.
Proposed § 5.591(a)(6) states that VA will apply the rule in § 3.114(a), pertaining to a change of law or VA issue. Proposed § 5.591(a)(6) incorporates the reference to § 3.114(a) which appears in current §§ 3.403(c) and 3.815(i). The statutory authority for current § 3.114(a) is 38 U.S.C. 5110(g) and 1832(b)(2).
Proposed § 5.591(b) governs reductions and discontinuances of the monetary allowances. Pursuant to 38 U.S.C. 1832, the provisions of 38 U.S.C. 5112(a) and 5112(b)(1), (6), (9), and (10), governing effectives dates of reductions and discontinuances, are applicable.
Currently, §§ 3.814(f) and 3.815(j) restate 38 U.S.C. 5112(a), which provides that the effective date of a reduction or discontinuance of certain
Proposed § 5.591(b)(1) and (b)(2) applies the rules regarding the reduction or discontinuance of erroneous awards based on beneficiary or administrative error, located in current § 3.500(b)(1) and (2). Currently, paragraphs (1) and (2) of § 3.814(f) and paragraphs (1) and (2) of § 3.815(j) repeat the language in paragraphs (1) and (2) of § 3.500(b). We propose to simply incorporate those rules by reference to reduce repetitiveness.
Proposed § 5.591(b)(3) governs the effective date of a discontinuance based on the beneficiary's death, and restates current § 3.503(b), which states that the last day of the month before the month in which a child's death occurs serves as the effective date of discontinuance. The statutory authority for this rule is 38 U.S.C. 5112(b)(1), which is made applicable to these benefits through 38 U.S.C. 1832(b)(4).
Proposed § 5.591(b)(4) restates the two cross references contained in the introductory paragraphs of current §§ 3.814(f) and 3.815(j). The current rules cross-reference current § 3.114(b), Discontinuance of Benefits based on a Change of Law or VA Issue.
Section 3902 of title 38, U.S.C., authorizes VA to assist certain veterans and servicemembers in acquiring a vehicle and adaptive equipment for a vehicle. Such assistance is available to claimants who have incurred certain disabilities as the result of injury sustained or disease contracted in or aggravated by active military service.
Proposed § 5.603(a) simply states in plain language the general nature of the benefit involved in this section.
Proposed § 5.603(b) provides definitions of applicable terms, namely “adaptive equipment” and “vehicle.” No substantive change from current § 3.808 has been made to either term. We propose to include in § 5.603(b) the types of adaptive equipment to which an eligible person may be entitled under this section. We propose to use the term “vehicle” in lieu of “automobile or other conveyance” to make the regulation easier to read.
Proposed § 5.603(c) identifies the criteria that a claimant must satisfy to obtain a certification of eligibility for the purchase of a vehicle and adaptive equipment. This is a plain language rewrite of current § 3.808 criteria, and there is no change to the substantive provisions.
Proposed § 5.603(d), which is based on 38 CFR 17.158 and current VA practice, specifies certain limitations for eligibility for financial assistance to purchase a vehicle and/or adaptive equipment. It also states the limitations on how often an eligible person may take advantage of these benefits for the purchase of a vehicle and adaptive equipment, and states that payments may not be made for the repair, maintenance, or replacement of a vehicle, but payments may be made for the repair, replacement, or reinstallation of adaptive equipment.
We note that current § 3.808(d), which is entitled “additional eligibility criteria for adaptive equipment,” states that claimants for adaptive equipment must also satisfy the additional eligibility criteria of §§ 17.156, 17.157, and 17.158 of this chapter. We have not included this provision in proposed § 5.603 because the part 17 provisions do not state additional “eligibility criteria.” Rather, they state additional details regarding the assistance VA may provide. However, we have added a reference to those part 17 provisions in proposed § 5.603(d)(2).
Proposed § 5.603(e) is based partly on current § 3.808(c). We have also added a few details regarding the procedure of certification. These provisions reflect current VA practice; no substantive changes are intended.
Proposed § 5.603(f) is based on 38 CFR 17.158 and current VA practice; no substantive change is intended.
Proposed § 5.606 is derived from current § 3.810 but is written in plain language to clarify certain provisions and to improve readability. We have reorganized the information in a logical format, addressing basic eligibility and applications, examinations, payments, and reduction for incarceration. We have also included rules for Filipino veterans and veterans living abroad to ensure that all affected persons have the information necessary to file an annual clothing allowance claim.
Proposed § 5.606(a) states generally the nature of the regulation. It does not add any substantive material to the regulation, but is merely intended to familiarize the reader with the nature of the regulation.
Proposed § 5.606(b), based on current § 3.810(a), states the eligibility requirements for receiving benefits under this section. It is reorganized and rewritten in plain English. No substantive change from current § 3.810(a) is intended, except for the reference to § 3.326(c). The reference to § 3.326(c) is in current § 3.810(a)(1), which states that one of the eligibility criteria is a VA examination or hospital or examination report from a facility specified in § 3.326(c) which discloses that the veteran wears or uses certain prosthetic or orthopedic appliances (including a wheelchair) which tend to wear or tear clothing because of such disability and such disability is the loss or loss of use of a hand or foot compensable at a rate specified in § 3.350(a), (b), (c), (d), or (f). The reference to § 3.326(c) is not completely correct. Current § 3.326(c) states: “Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination.” This provision does not refer to a “facility,” as current § 3.810(a)(1) might suggest. Rather, current § 3.326(b) is the appropriate provision regarding reports from private facilities. Current § 3.326(b) states in pertinent part: “Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination.” Both paragraph (b) and paragraph (c) of current § 3.326 are appropriate references, and therefore we have adjusted the reference to include both (b) and (c) of current § 3.326, which have been published as proposed § 5.91(a).
We note that we have not carried forward the provision in current § 3.810(a)(2) which states that VA's Chief Medical Director or designee will make the certification of eligibility. This provision addresses an internal administrative procedure within VA and does not need to be included in the regulation. Instead we have stated the provision in more general terms by indicating that VA will make the determination whether the service-
Proposed § 5.606(c) is a new provision based on current VA practice. It describes the criteria required for continuing entitlement to the clothing allowance. If a veteran has continuing entitlement to the clothing allowance, the veteran is not required to reapply for the clothing allowance each year.
Proposed § 5.606(d), regarding the annual payment period and anniversary date, is based on current § 3.810(b). The first sentence of current § 3.810(b) states that effective August 1, 1972, the initial lump sum clothing allowance is due and payable for veterans meeting the eligibility requirements of paragraph (a) of this section as of that date. The August 1, 1972, date is the date that the clothing allowance was first effective. The first sentence of current § 3.810(b) means that if a veteran met the eligibility requirements for the clothing allowance as of August 1, 1972, the clothing allowance was due and payable as of August 1, 1972. Due to the passage of time, this date and this sentence are no longer necessary, and they have not been carried forward to proposed § 5.606.
The second sentence of current § 3.810(b) states that subsequent annual payments for those meeting the eligibility requirements of paragraph (a) of this section will become due on the anniversary date thereafter, both as to initial claims and recurring payments under previously established entitlement. The phrase “subsequent annual payments” means payments after August 1, 1972. The “anniversary date” means August 1 of each year after 1972. The sentence merely establishes that the clothing allowance is due to eligible veterans on August 1 of each year. The August 1 date applies to initial claims for the clothing allowance, and for automatically recurring payments.
Proposed § 5.606(d) is a plain language rewrite of current § 3.810(b). We believe that the proposed language is clearer than the current version. In essence, current § 3.810(b) relies on a reference to the original August 1, 1972, effective date of the clothing allowance statute in order to explain that the clothing allowance is due on August 1 of each year. A simpler way of saying this is to state that the clothing allowance is paid annually following each 12-month period which begins August 1 and ends July 31. In addition, we have explained that the August 1 date is referred to as the anniversary date. It is helpful to keep the “anniversary date” terminology in order to easily explain the effective date provisions in proposed § 5.606(e). We have also added a definition of “initial anniversary date,” which is a phrase used in proposed § 5.606(e). No substantive change from the current regulation is intended.
Proposed § 5.606(e), regarding the time for filing a claim for the clothing allowance, is based on current § 3.810(c). It is rewritten in plain English. In addition, examples have been added in order to more clearly illustrate the meaning of these provisions. No substantive change from the current regulation is intended.
Proposed § 5.606(f) and (g) discuss clothing allowance claims for Filipino veterans and veterans living abroad. These two rules reflect current VA practice. The appropriate VA medical center prosthetic and sensory aids service will process the annual clothing allowance payment for those claims under the jurisdiction of the VA medical center assigned the geographical area where the veteran maintains a permanent address. Claims filed by Filipino veterans not permanently residing in the U.S. are processed locally in Manila, Philippines. Claims authorized for veterans of the U.S. Army and Old Philippine Scouts are paid in dollars. Claims authorized for New Philippine Scouts, Commonwealth Army of the Philippines, and guerilla service, are paid at a rate in Philippine pesos equivalent to $.50 for each dollar authorized under the law. See § 3.42 (proposed § 5.613).
Proposed § 5.606(h) restates current § 3.810(d) pertaining to reduction of the amount of the clothing allowance when a veteran is incarcerated for a period in excess of 60 days and is furnished clothing without charge by the penal institution. This regulation implements 38 U.S.C. 5313A. We propose to include a notation that the reduction applies to incarceration for any reason. We believe this brings focus to the controlling issue of whether the veteran is being furnished clothing without charge during incarceration, and not the reason for the veteran's incarceration. The statutory language of 38 U.S.C. 5313A does not contain a requirement that a veteran be convicted of a felony for the reduction to occur. Proposed § 5.606(h) clarifies that the reduction applies to all veterans who are incarcerated for more than 60 days and are furnished clothing without charge, without regard to the nature of the crime for which the veteran was convicted.
We intend to ultimately remove part 3 entirely, but we are not including amendatory language to accomplish that at this time. VA will provide public notice before removing part 3.
Although this document contains provisions constituting a collection of information in 38 CFR 5.603 and 5.606 under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with these proposed rules. The information collection requirements for §§ 5.603 and 5.606 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control numbers 2900-0067, 2900-0188, and 2900-0198.
The Secretary hereby certifies that these proposed regulatory amendments will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Although these proposed amendments affect some small entities, specifically auto dealerships, the proposed amendments do not substantively change the current regulation (38 CFR 3.808) concerning auto dealerships. The current regulation does not have a significant economic impact on auto dealerships. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health
The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues.
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no such effect on State, local, or tribal governments, or the private sector.
The Catalog of Federal Domestic Assistance program numbers and title for this proposal are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.115, Veterans Information and Assistance; and 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida.
Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Veterans, Vietnam.
This document was received at the Office of the Federal Register on March 5, 2007.
For the reasons set forth in the preamble, VA proposes to further amend 38 CFR part 5, as proposed to be added at 69 FR 4832, January 30, 2004, by adding subpart H to read as follows:
38 U.S.C. 501(a), unless otherwise noted.
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(d)
(e)
(a)
(b)
(1) Is currently receiving VA benefits; or
(2) Has a pending formal application in the form prescribed by VA (a claim that has not been granted or finally denied by VA).
(c)
(2)
(d)
(2) When a special act does not provide the rate, effective date, or discontinuance date, VA will award or continue the benefit consistent with applicable public laws.
(e)
(2)
(f)
(a)
(b)
(c)
(d)
(a)
(b)
(1) Where the veteran's death is not service connected but is treated “as if” it were service connected under the provisions of this chapter.
(2) Where the veteran's death was due to service rendered with the Commonwealth Army of the Philippines while such forces were in the service of the Armed Forces pursuant to the military order of the President dated July 26, 1941, or was due to service in the New Philippine Scouts under section 14, Public Law 190, 79th Congress.
(c)
(d)
(e)
(i) While on active duty, active duty for training, or inactive duty training as a member of a uniformed service (line of duty is not a factor); or
(ii) As the result of a service-connected disability incurred after September 15, 1940.
(2) Where the veteran died after separation from service:
(i) Discharge from service must have been under conditions other than dishonorable as outlined in § 5.30.
(ii) Line of duty and service connection will be determined as outlined in §§ 3.1(k), 3.1(m), §§ 3.300 through 3.344, §§ 5.260 through 5.269, and §§ 5.660 through 5.662.
A certification of loan guaranty benefits may be extended to surviving spouses based on an application filed after December 31, 1958, if:
(a) The veteran served in the Armed Forces of the United States (Allied Nations are not included) at any time after September 15, 1940; and
(b) The veteran died in service; or
(c) The veteran died after separation from service and such separation was under conditions other than dishonorable, provided the veteran's death was the result of injury or disease incurred in or aggravated by service in line of duty rendered after September 15, 1940, regardless of the date of entrance into such service (cases where compensation is payable because of
(d) The surviving spouse meets the requirements of the term “surviving spouse” as outlined in § 5.200(a); and
(e) The veteran's surviving spouse is unmarried or was remarried after age 57; and
(f) The applicant is not an eligible veteran.
(a)
(1) The veteran died after December 31, 1956;
(2) The veteran died during the 120-day period that began on the day following the day of his or her discharge or release from duty as described in 10 U.S.C. 1476;
(3) Death resulted from disease or injury incurred or aggravated while on such duty, or travel to or from such duty; and
(4) The deceased person was discharged or released from such service under conditions other than dishonorable.
(b)
(a)
(b)
(c)
(2)
(d)
(2)
(3)
(a)
(1) Whom the Department of Defense or the Department of Homeland Security has determined meets the eligibility criteria of section 4(a) of Public Law 92-425 as amended other than section 4(a)(2) and (3); and
(2) Who is eligible for pension under subchapter III of 38 U.S.C. chapter 15, or section 306 of the Veterans' and Survivors' Pension Improvement Act of 1978; and
(3) Whose annual income, as determined in establishing pension eligibility, is less than the maximum annual rate of pension in effect under 38 U.S.C. 1541(b).
(b)
(2)
(3)
(4)
(c)
(d)
(e)
The provisions of this section apply to the payment of a special allowance to certain surviving spouses and children of individuals who died on active duty prior to August 13, 1981, or who died as a result of a service-connected disability which was incurred or aggravated prior to August 13, 1981. This special allowance is a replacement for certain social security benefits which were either reduced or discontinued by provisions of the Omnibus Budget Reconciliation Act of 1981.
(a)
(2) Once a favorable determination has been made under paragraph (a)(1) of this section, determinations as to the age, relationship and school attendance requirements contained in paragraphs (a)(1) and (b)(1) of section 156 of Public Law 97-377 will be made. In making these eligibility determinations VA shall apply the provisions of the Social Security Act, and any regulations promulgated pursuant thereto, as in effect during the claimant's period of eligibility. Unless otherwise provided in this section, when issues are raised concerning eligibility or entitlement to this special allowance which cannot be appropriately resolved under the provisions of the Social Security Act, or the regulations promulgated pursuant thereto, the provisions of title 38, Code of Federal Regulations, are applicable.
(b)
(2)
(3)
(4)
(5)
(6)
(c)
(1) Claimants eligible for death benefits under 38 U.S.C. 1151. The deaths in such cases are not service-connected.
(2) Claimants eligible for death benefits under 38 U.S.C. 1318. The deaths in such cases are not service connected.
(3) Claimants whose claims are based on an individual's service in:
(i) The Commonwealth Army of the Philippines while such forces were in the service of the Armed Forces pursuant to the military order of the President dated July 26, 1941, including recognized guerrilla forces (see 38 U.S.C. 107).
(ii) The New Philippine Scouts under section 14, Public Law 190, 79th Congress (see 38 U.S.C. 107).
(iii) The commissioned corps of the Public Health Service (specifically excluded by section 156 of Pub. L. 97-377), or
(iv) The National Oceanic and Atmospheric Administration (specifically excluded by section 156 of Pub. L. 97-377).
(d)
(e)
(f)
(a)
(b)
(c)
(2)
(3)
(d)
(i)
(ii)
(iii)
(2) If an individual who would otherwise be paid at Level I or II has one or more disabilities, such as blindness, uncontrolled seizures, or renal failure that result either from spina bifida, or from treatment procedures for spina bifida, the Director of the Compensation and Pension Service may increase the monthly payment to the level that, in his or her judgment, best represents the extent to which the disabilities resulting from spina bifida limit the individual's ability to engage in ordinary day-to-day activities, including activities outside the home. A Level II or Level III payment will be awarded depending on whether the effects of a disability are of equivalent severity to the effects specified under Level II or Level III.
(3) VA may accept statements from private physicians, or examination reports from government or private institutions, for the purpose of rating spina bifida claims without further examination, provided the statements or reports are adequate for assessing the level of disability due to spina bifida under the provisions of paragraph (d)(1) of this section. In the absence of adequate medical information, VA will schedule an examination for the purpose of assessing the level of disability.
(4) VA will pay an individual eligible for a monetary allowance due to spina bifida at Level I unless or until it receives medical evidence supporting a higher payment. When required to reassess the level of disability under paragraph (d)(5) or (d)(6) of this section, VA will pay an individual eligible for this monetary allowance at Level I in the absence of evidence adequate to support a higher level of disability or if the individual fails to report, without good cause, for a scheduled examination. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.
(5) VA will pay individuals under the age of 1 year at Level I unless a pediatric neurologist or a pediatric neurosurgeon certifies that, in his or her medical judgment, there is a neurological deficit that will prevent the individual from ambulating, grasping a pen, feeding himself or herself, performing self care, or from achieving urinary or fecal continence. If any of those deficits are present, VA will pay the individual at Level III. In either case, VA will reassess the level of disability when the individual reaches the age of 1 year.
(6) VA will reassess the level of payment whenever it receives medical evidence indicating that a change is warranted. For individuals between the ages of one and twenty-one, however, it must reassess the level of payment at least every 5 years.
(e)
(a)
(2)
(3)
(b)
(c)
(2)
(3)
(i) Familial disorder;
(ii) Birth-related injury; or
(iii) Fetal or neonatal infirmity with well-established causes.
(d)
(1) Covered birth defects include, but are not limited to, the following (however, if a birth defect is determined to be familial in a particular family, it will not be a covered birth defect):
(i) Achondroplasia;
(ii) Cleft lip and cleft palate;
(iii) Congenital heart disease;
(iv) Congenital talipes equinovarus (clubfoot);
(v) Esophageal and intestinal atresia;
(vi) Hallerman-Streiff syndrome;
(vii) Hip dysplasia;
(viii) Hirschprung's disease (congenital megacolon);
(ix) Hydrocephalus due to aqueductal stenosis;
(x) Hypospadias;
(xi) Imperforate anus;
(xii) Neural tube defects (including spina bifida, encephalocele, and anencephaly);
(xiii) Poland syndrome;
(xiv) Pyloric stenosis;
(xv) Syndactyly (fused digits);
(xvi) Tracheoesophageal fistula;
(xvii) Undescended testicle; and
(xviii) Williams syndrome.
(2) Birth defects that are familial disorders, including hereditary genetic conditions, are not covered birth defects. Familial disorders include, but are not limited to, the following, unless the birth defect is not familial in a particular family:
(i) Albinism;
(ii) Alpha-antitrypsin deficiency;
(iii) Crouzon syndrome;
(iv) Cystic fibrosis;
(v) Duchenne's muscular dystrophy;
(vi) Galactosemia;
(vii) Hemophilia;
(viii) Huntington's disease;
(ix) Hurler syndrome;
(x) Kartagener's syndrome (Primary Ciliary Dyskinesia);
(xi) Marfan syndrome;
(xii) Neurofibromatosis;
(xiii) Osteogenesis imperfecta;
(xiv) Pectus excavatum;
(xv) Phenylketonuria;
(xvi) Sickle cell disease;
(xvii) Tay-Sachs disease;
(xviii) Thalassemia; and
(xix) Wilson's disease.
(3) Conditions that are congenital malignant neoplasms are not covered birth defects. These include, but are not limited to, the following:
(i) Medulloblastoma;
(ii) Neuroblastoma;
(iii) Retinoblastoma;
(iv) Teratoma; and
(v) Wilm's tumor.
(4) Conditions that are chromosomal disorders are not covered birth defects. These include, but are not limited to, the following:
(i) Down syndrome and other Trisomies;
(ii) Fragile X syndrome;
(iii) Klinefelter's syndrome; and
(iv) Turner's syndrome.
(5) Conditions that are due to birth-related injury are not covered birth defects. These include, but are not limited to, the following:
(i) Brain damage due to anoxia during or around time of birth;
(ii) Cerebral palsy due to birth trauma, (iii) Facial nerve palsy or other peripheral nerve injury;
(iv) Fractured clavicle; and
(v) Horner's syndrome due to forceful manipulation during birth.
(6) Conditions that are due to a fetal or neonatal infirmity with well-established causes or that are miscellaneous pediatric conditions are not covered birth defects. These include, but are not limited to, the following:
(i) Asthma and other allergies;
(ii) Effects of maternal infection during pregnancy, including maternal rubella, toxoplasmosis, or syphilis;
(iii) Fetal alcohol syndrome or fetal effects of maternal drug use;
(iv) Hyaline membrane disease;
(v) Maternal-infant blood incompatibility;
(vi) Neonatal infections;
(vii) Neonatal jaundice;
(viii) Post-infancy deafness/hearing impairment (onset after the age of 1 year);
(ix) Prematurity; and
(x) Refractive disorders of the eye.
(7) Conditions that are developmental disorders are not covered birth defects. These include, but are not limited to, the following:
(i) Attention deficit disorder;
(ii) Autism;
(iii) Epilepsy diagnosed after infancy (after the age of 1 year);
(iv) Learning disorders; and
(v) Mental retardation (unless part of a syndrome that is a covered birth defect).
(8) Conditions that do not result in permanent physical or mental disability are not covered birth defects. These include, but are not limited to:
(i) Conditions rendered non-disabling through treatment;
(ii) Congenital heart problems surgically corrected or resolved without disabling residuals;
(iii) Heart murmurs unassociated with a diagnosed cardiac abnormality;
(iv) Hemangiomas that have resolved with or without treatment; and
(v) Scars (other than of the head, face, or neck) as the only residual of corrective surgery for birth defects.
(e)
(1)
(ii)
(A) The individual has residual physical or mental effects that only occasionally or intermittently limit or prevent some daily activities; or
(B) The individual has disfigurement or scarring of the head, face, or neck without gross distortion or gross asymmetry of any facial feature (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips).
(iii)
(A) The individual has residual physical or mental effects that frequently or constantly limit or prevent some daily activities, but the individual is able to work or attend school, carry out most household chores, travel, and provide age-appropriate self-care, such as eating, dressing, grooming, and carrying out personal hygiene, and communication, behavior, social interaction, and intellectual functioning are appropriate for age; or
(B) The individual has disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of one facial feature or one paired set of facial features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips).
(iv)
(A) The individual has residual physical or mental effects that frequently or constantly limit or prevent most daily activities, but the individual is able to provide age-appropriate self-care, such as eating, dressing, grooming, and carrying out personal hygiene;
(B) The individual is unable to work or attend school, travel, or carry out household chores, or does so intermittently and with difficulty;
(C) The individual's communication, behavior, social interaction, and intellectual functioning are not entirely appropriate for age; or
(D) The individual has disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of two facial features or two paired sets of facial features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips).
(v)
(A) The individual has residual physical or mental effects that prevent age-appropriate self-care, such as eating, dressing, grooming, and carrying out personal hygiene;
(B) The individual's communication, behavior, social interaction, and intellectual functioning are grossly inappropriate for age; or
(C) The individual has disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of three facial features or three paired sets of facial features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips).
(2)
(i) Mobility (ability to stand and walk, including balance and coordination);
(ii) Manual dexterity;
(iii) Stamina;
(iv) Speech;
(v) Hearing;
(vi) Vision (other than correctable refraction errors);
(vii) Memory;
(viii) Ability to concentrate;
(ix) Appropriateness of behavior; and
(x) Urinary and fecal continence.
(f)
(2) Except in accordance with paragraph (a)(3) of this section, VA will not pay a monthly monetary allowance unless or until VA is able to obtain medical evidence adequate to determine that an individual has a covered birth defect and adequate to assess the level of disability due to covered birth defects.
(g)
(h)
(i)
This section provides the effective date for an award, reduction, or discontinuance of the monthly monetary allowance payable under § 5.589 to a Vietnam veteran's biological child who is suffering from spina bifida or under § 5.590 of this part to a woman Vietnam veteran's biological child who suffers from one or more covered birth defects.
(a)
(1) An allowance payable under § 5.589 will not be effective before October 1, 1997.
(2) An allowance payable under § 5.590 will not be effective before December 1, 2001.
(3) Subject to paragraphs (a)(1) and (2) of this section, the effective date will be the child's date of birth, if VA received the claim within 1 year of the birth date.
(4) Subject to paragraphs (a)(1) and (2) of this section, if a previously denied claim is reopened and granted based on corrected military records, VA will apply the rule in § 3.400(g) of this chapter.
(5) Subject to paragraphs (a)(1) and (2) of this section, if a claimant files a claim for increase of a monetary allowance due to increase in disability, VA will
(6) If the allowance is based on a change of law or VA issue, VA will apply the rule in § 3.114(a) of this chapter.
(b)
(1) If the monetary allowance was paid erroneously because of beneficiary error, VA will apply the rule in § 3.500(b)(1) of this chapter.
(2) If the monetary allowance was paid erroneously because of administrative error by VA, VA will apply the rule in § 3.500(b)(2) of this chapter .
(3) If a discontinuance is due to the beneficiary's death, VA will discontinue benefits effective the first day of the month of the beneficiary's death.
(4) If there is a change of law or VA issue, or change in interpretation of a law or VA issue, VA will apply the rule in § 3.114 of this chapter.
(5) If a reduction or discontinuance is warranted by a change in the beneficiary's physical condition, VA will apply the rule in § 3.105(g) of this chapter.
(a)
(b)
(1)
(A) Make it safe for use by the eligible person, and
(B) Assist the eligible person in meeting applicable standards of licensure by the proper licensing authority.
(ii) Adaptive equipment includes:
(A) Automatic transmission as to an eligible person who has lost or lost the use of a limb
(B) Power steering, power brakes, power window lifts, and power seats
(C) Air conditioning equipment, if such equipment is necessary for the health and safety of the eligible person and to the safety of others
(D) Special equipment necessary to assist the eligible person in and out of the vehicle, regardless of whether the vehicle is to be operated by the eligible person or is to be operated for such person by another person
(E) Modification of the interior space if necessary for the eligible person to enter or operate the vehicle.
(F) Items the Under Secretary for Health or designee has deemed to be ordinarily necessary for a qualifying disability or combination of qualifying disabilities, or has deemed necessary in an individual case. Such specifications of equipment may include a limit on the financial assistance to be provided based on judgment and experience.
(2)
(c)
(1)
(i) A veteran who is entitled to compensation under 38 U.S.C. chapter 11, including compensation under 38 U.S.C. 1151, for a qualifying disability described in paragraph (c)(2) of this section; or
(ii) A member of the Armed Forces serving on active duty who has a qualifying disability described in paragraph (c)(2) of this section that is the result of an injury incurred or disease contracted in or aggravated by active military service.
(2)
(i) Loss or permanent loss of use of one or both feet;
(ii) Loss or permanent loss of use of one or both hands;
(iii) Permanent impairment of vision of both eyes: Central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20° in the better eye.
(iv) For the purpose of eligibility for adaptive equipment only, ankylosis of one or both knees or one or both hips.
(3)
(ii) A claim for financial assistance to purchase a vehicle will also be considered a claim for adaptive equipment necessary to operate the vehicle according to the safety standards of the licensing authority.
(iii) There is no time limit in which the claimant must apply for the benefits under this section.
(iv) For claimants applying while still on active military duty, the application form will be deemed filed with VA on the date it is shown to be in possession of military authorities for transmittal to VA.
(d)
(2)
(e)
(f)
(a)
(b)
(1)
(2)
(i) Due to the disability described in paragraph (b)(1) of this section, the veteran wears or uses a prosthetic or orthopedic appliance (including a wheelchair) which VA determines tends to wear out or tear the veteran's clothing; or
(ii) The veteran uses prescription medication for a skin condition which is due to the disability described in paragraph (b)(1) of this section, and VA determines that the prescribed medication causes irreparable damage to the veteran's outer garments.
(3)
(c)
(1) Service connection has been established for the loss or loss of use of a hand or foot and the disability requires use of a prosthetic or orthopedic appliance that wears or tears clothing; or
(2) VA makes a finding that the disability for which the annual clothing allowance was awarded is static in nature and that future reevaluations of eligibility are unnecessary.
(d)
(e)
(2) If an initial determination of service connection for the qualifying disability is made subsequent to an anniversary date for which entitlement is established, the application form for clothing allowance may be filed within 1 year from the date of notice to the veteran of such determination. For example, if VA issues a decision on December 1, 2005, that establishes service connection for a qualifying disability effective May 1, 2005, the veteran is eligible for the 2005 clothing allowance if he or she files an application form within 1 year of the date he or she received notice of the December 1, 2005, decision.
(3) If the veteran does not file the application form within 1 year of the initial anniversary date or the date specified in paragraph (e)(2), the veteran will be entitled to payment of the clothing allowance for any following year for which entitlement is established, if the veteran files an application form within 1 year of the anniversary date for that year. For example, if VA issues a decision on April 1, 2005, that establishes service connection for a qualifying disability effective February 1, 2005, and the veteran does not file within 1 year of August 1, 2005 (his initial anniversary date), then he or she is not entitled to the 2005 clothing allowance. However, the veteran may be entitled to payment for any following year. For example, the veteran would be entitled to the 2006 clothing allowance if he or she files an application form within 1 year of the August 1, 2006 anniversary date.
(4) If a veteran first meets the requirements of paragraphs (b)(1) and (b)(2) of this section after August 1 of a calendar year, the veteran is not eligible for that year's clothing allowance. The veteran may receive the clothing allowance for any subsequent year by submitting an application within 1 year of the anniversary date (August 1) of that subsequent year.
(f)
Cross-References: Eligibility based on service in Philippine and Insular Forces.
(g)
(h)