Historic Preservation, Advisory Council
Forest Service
National Foundation on the Arts and the Humanities
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Navy Department
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Presidential Documents
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Fish and Wildlife Service
Land Management Bureau
National Park Service
Surface Mining Reclamation and Enforcement Office
Employment and Training Administration
International Boundary and Water Commission, United States and Mexico
Trade Representative, Office of United States
United States Sentencing Commission
Federal Aviation Administration
Maritime Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Comptroller of the Currency
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.
Nuclear Regulatory Commission.
Direct final rule.
The Nuclear Regulatory Commission (NRC) is amending its regulations that govern organization and functions of NRC offices. This action is necessary to clarify emergency preparedness program responsibilities of the Office of Nuclear Security and Incident Response. The current limiting reference of “nuclear reactors” will be replaced with the phrase “nuclear facilities.”
The final rule is effective on August 6, 2007, unless significant adverse comments are received by June 20, 2007. A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. If the NRC receives any significant adverse comments, the NRC will publish a document that withdraws the direct final rule and addresses the comments received in a final rule as a response to the companion proposed rule published elsewhere in this issue of the
You may submit comments by any one of the following methods. Please include the following number (RIN 3150-AI17) in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to:
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone (301) 415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at (301) 415-1101.
Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking Web site at
Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at
Kevin R. O'Sullivan, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-8112, e-mail
The NRC's regulations at 10 CFR part 1 identify the responsibilities of NRC program offices. On November 16, 2005 (70 FR 69422), the NRC amended 10 CFR part 1 to add, in a new § 1.46, the program responsibilities of the Office of Nuclear Security and Incident Response (NSIR). Section 1.46(c) specifies that NSIR develops emergency preparedness policies, regulations, programs, and guidelines for currently licensed nuclear reactors and potential new nuclear reactors.
The only revision to 10 CFR 1.46 now being made is to 10 CFR 1.46(c) to remove reference to “nuclear reactors” and add the term “nuclear facilities.”
Section 1.46(c) specifies that NSIR develops emergency preparedness policies, regulations, programs, and guidelines for both currently licensed nuclear reactors and potential new nuclear reactors. The emergency preparedness programs for other nuclear facilities, including fuel cycle, spent fuel storage, transportation, waste, and various non-fuel cycle materials facilities, have been the responsibility of the Office of Nuclear Material Safety and Safeguards (NMSS). In January 2004, the Commission announced the consolidation of emergency preparedness and incident response functions within NSIR to centralize policy and program oversight of these activities.
This rule removes the limiting reference of “nuclear reactors” and adds the phrase “nuclear facilities” to the end of § 1.46(c).
This revision clarifies that NSIR has the programmatic responsibility for emergency preparedness policies, regulations, programs, and guidelines for all of the nuclear facilities that are under NRC jurisdiction. The transfer of certain emergency preparedness program responsibilities from NMSS to NSIR is being undertaken consistent with those Offices' management commitments.
Because the NRC considers this action to be non-controversial, the NRC is using the direct final rule process for this rule. This rule will become effective on August 6, 2007. However, if the NRC receives significant adverse comments on this direct final rule by June 20, 2007, the NRC will publish a document that withdraws the direct final rule and address the comments received in a final rule as a response to the companion proposed rule published elsewhere in this issue of the
A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(A) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(B) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(C) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3) The comment causes the staff to make a change (other than editorial) to the rule.
The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC is amending its regulations to clarify NSIR emergency preparedness program responsibilities. This action does not constitute the establishment of a standard that establishes generally applicable requirements.
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the
The Presidential Memorandum dated June 1, 1998, entitled, “Plain Language in Government Writing” directed that the Government's writing be in plain language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading
The NRC has determined that this direct final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(2). Therefore neither an environmental impact statement nor an environmental assessment has been prepared for this direct final rule.
This direct final rule does not contain information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
A regulatory analysis has not been prepared for this direct final rule because this rule is considered a minor non-substantive amendment; it has insignificant economic impact on NRC licensees and the public.
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. This rule merely clarifies NSIR programmatic responsibilities.
The NRC has determined that the backfit rule does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required.
As required by the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.
Organization and function (Government agencies).
Secs. 23, 161, 68 Stat. 925, 948, as amended (42 U.S.C. 2033, 2201); sec. 29, Pub. L. 85-256, 71 Stat. 579, Pub. L. 95-209, 91 Stat. 1483 (42 U.S.C. 2039); sec. 191, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C. 2241); secs. 201, 203, 204, 205, 209, 88 Stat. 1242, 1244, 1245, 1246, 1248, as amended (42 U.S.C. 5841, 5843, 5844, 5845, 5849); 5 U.S.C. 552, 553; Reorganization Plan No. 1 of 1980, 45 FR 40561, June 16, 1980.
(c) Develops emergency preparedness policies, regulations, programs, and guidelines for nuclear facilities;
For the Nuclear Regulatory Commission.
Office of Surface Mining Reclamation and Enforcement, Interior.
Final rule; approval of amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving an amendment to the Indiana regulatory program (Indiana program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The Indiana Department of Natural Resources, Division of Reclamation (IDNR, Indiana, or department) made revisions to its rules to allow commercial forestry (trees) to be planted on reclaimed prime farmland provided all remaining reclamation requirements for prime farmland soil reconstruction and restoration are met. Indiana also restructured several of its provisions and made some minor language changes. Indiana intends to revise its program to improve operational efficiency.
May 21, 2007.
Andrew R. Gilmore, Chief, Alton Field Division—Indianapolis Area Office.
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior (Secretary) conditionally approved the Indiana program effective July 29, 1982. You can find background information on the Indiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the July 26, 1982,
By letter dated October 23, 2006 (Administrative Record No. IND-1738), Indiana sent us an amendment to its program under SMCRA (30 U.S.C. 1201
We announced receipt of the proposed amendment in the November 13, 2006,
Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes.
1. Indiana restructured the following provisions with minor changes to the existing language: 312 IAC 25-4-102(a)(1), (a)(3)(A) and (B); (b); (d)(4) and (6); (e)(3); and (f)(5).
For example, at 312 IAC 25-4-102(a)(1), Indiana restructured the sentence, “A map showing the geographical location of the area for which the determination is requested and the area previously affected by surface coal mining and reclamation operation,” to:
A map showing the geographical location of:
(A) The area for which the determination is requested; and
(B) The area previously affected by surface coal mining and reclamation operation.
2. Indiana restructured the following provisions with minor changes to the existing language: 312 IAC 25-6-143(b)(3) and (b)(8).
For example, at 312 IAC 25-6-143(b)(3), Indiana restructured the sentence, “The sampling techniques contained in section 60 of this rule and the statistical methodology contained in section 61 of this rule shall be used to measure soil productivity,” to:
The:
(A) Sampling techniques contained in section 60 of this rule; and
(B) Statistical methodology contained in section 61 of this rule;
Because these changes are minor and do not alter the meaning of the affected regulations, we find that they will not make Indiana's rules less effective than the corresponding Federal regulations.
Indiana revised its prime farmland rules at 312 IAC 25-4-102, which concern application requirements for prime farmland mining and restoration. Indiana also revised 312 IAC 25-6-143, which concerns revegetation and restoration of soil productivity for prime farmland. The purpose of the revisions is to allow commercial trees to be planted on reclaimed prime farmland areas provided soil productivity is demonstrated according to prime farmland soil productivity standards. In other words, the revisions would establish standards for planting trees on those parts of reclaimed prime farmland upon which crops need not be grown to demonstrate restoration of soil productivity and revegetation success.
There are no direct Federal counterparts to most of the revisions. However, all revisions affecting prime farmland restoration must be consistent with the Federal prime farmland regulations at 30 CFR 785.17 and Part 823.
Indiana added new subdivision (d)(8) to read as follows:
(8) If the applicant proposes to establish commercial forest resources on the prime farmland, the plan must also include the following:
(A) A commercial forest planting plan that shall include the following:
(i) A stocking rate.
(ii) A plan for replanting as needed.
(B) A commercial forest management plan.
(C) Documentation of landowner consent.
Subsection (d) of this section concerns land within the proposed permit area that is identified as prime farmland. Once prime farmland is
Indiana added new subsection (c) to read as follows:
(c) Commercial forest resources may be established on reclaimed prime farmland provided that productivity is demonstrated by subsection (b) and as follows:
(1) The director has approved a forest planting plan and forest management plan in consultation with the division of forestry.
(2) Landowner consent has been obtained.
(3) Forest compatible, permanent ground cover sufficient to control erosion is established and all erosion areas must be repaired or otherwise stabilized.
(4) The required soil replacement depth is verified and approved before trees are planted.
(5) Soil productivity shall be demonstrated under subsection (b).
Subsection (b) of this section contains Indiana's requirements for revegetation and restoration of soil productivity for prime farmland. These requirements were previously approved as no less effective than the Federal regulation at 30 CFR 823.15(b). Newly added subsection (c) contains the additional requirements needed for planting commercial trees on those portions of reclaimed prime farmland upon which crops need not be grown to demonstrate restoration of soil productivity and revegetation success.
The Federal regulation at 30 CFR 785.17(e)(1) provides that the regulatory authority may approve mining and reclamation of prime farmland only if it first finds that the approved postmining land use of those prime farmlands is cropland. Originally designated as 30 CFR 785.17(d)(1) when first adopted on March 13, 1979, the preamble explains this provision as meaning that “* * * at the time the bond is released, the land must both be capable of supporting prime farmland use and must actually be in use as prime farmland.” See 44 FR 15086, March 13, 1979. (That portion of the preamble uses the term “prime farmland” as a synonym for cropland.) Consistent with this preamble discussion, the 1979 version of the prime farmland revegetation success standards at 30 CFR 823.15(b) required that crops be planted on “* * * any portion of the permit area which is prime farmland * * *”
Illinois challenged 30 CFR 785.17(d)(1) as being inconsistent with section 515(b)(2) of SMCRA, which requires that surface coal mining and reclamation operations “* * * restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or to higher or better uses * * *” The court rejected this challenge, citing what it characterized as “clear congressional intent to restore prime farmland to cropland” and noting that section 519(c)(2) of the Act prohibits release of bond “* * * until soil productivity for prime farm lands has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices * * *.” The court stated that “[t]his equivalency standard could not be achieved absent the postmining employment of prime farmland as cropland.” See
The rationale set forth in that decision is arguably inconsistent with the court's earlier decision on a similar challenge to the revegetation success standards for prime farmland—in 30 CFR 823.11(c) and 823.15(b) and (c)—by the National Coal Association (NCA). As originally adopted on March 13, 1979, paragraph (b) of 30 CFR 823.15 provided that “* * * any portion of the permit area which is prime farmland must be used for crops commonly grown, such as corn, soybeans, cotton, grain, hay, sorghum, wheat, oats, barley, or other crops on surrounding prime farmland.” In the NCA case, the court upheld the challenge, finding that “* * * the Act fails to provide statutory support for requiring coal operators to engage in farming.” See
These statutory enactments do not command a coal operator to actually farm the land. Instead, they direct the operator to demonstrate capability of prime farmlands to support pre-mining productivity.
See
In a subsequent rulemaking, we incorporated aspects of both decisions. First, the revised rules at 30 CFR 823.15(b) retain the requirement that crops be grown to demonstrate the restoration of soil productivity for prime farmland. The preamble explains that we “* * * determined that cropping is the only method currently available to test the restoration of the productivity of prime farmland soils because insufficient research has been published that demonstrates the reliability of any other method.” See 48 FR 21458, May 12, 1983.
Second, we did not adopt the proposed rule to the extent that it, like the 1979 rule, would have required crops to be grown on any portion of the disturbed area that is prime farmland historically used as cropland. Instead, revised section 823.15(b)(2) requires that soil productivity “* * * be measured on a representative sample or on all of the mined and reclaimed prime farmland area using the reference crop determined under paragraph (b)(6) of this section.” As explained in the preamble, the revised rule reflects an agreement between OSM and the Soil Conservation Service [since renamed the Natural Resources Conservation Service] “* * * that the amount of prime farmland area used to grow crops for proof of soil productivity could include the entire mined and reclaimed prime farmland area or a portion of the mined and reclaimed prime farmland area which would result in a statistically valid sample at a 90 percent confidence level.” See 48 FR 21459, May 12, 1983. The courts upheld the revised rules. See
Therefore, based on the foregoing discussion, we find that Indiana's proposed amendment is not inconsistent with and is no less effective than the Federal rules at 30 CFR 785.17(e)(1) and 823.15. First, like the Federal rules at 30 CFR 785.17(e)(1), the Indiana rules require that the postmining land use of all prime farmland be cropland, which means that, consistent with 30 CFR 816.133(a), 817.133(a), and 823.14, all disturbed
Based on the discussion above, we are approving Indiana's revisions at 312 IAC 25-4-102(d)(8) and 25-6-143(c) as no less effective than the Federal regulations.
We asked for public comments on the amendment, but did not receive any.
On October 27, 2006, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Indiana program (Administrative Record No. IND-1740). We received two comments; one from the U.S. Fish and Wildlife Service and one from the U.S. Department of Agriculture's Forest Service. The U.S. Fish and Wildlife Service responded on November 8, 2006 (Administrative Record No. IND-1742), stating that it supports Indiana's proposed program amendment. The Forest Service responded on December 4, 2006 (Administrative Record No. IND-1743), that it too supports this amendment.
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On October 27, 2006, we requested comments on Indiana's amendment (Administrative Record No. IND-1740), but neither responded to our request.
Based on the above findings, we approve the amendment Indiana sent us on October 23, 2006.
To implement this decision, we are amending the Federal regulations at 30 CFR part 914, which codify decisions concerning the Indiana program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.
Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change to an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the Indiana program, we will recognize only the statutes, rules and other materials we have approved, together with any consistent implementing policies, directives and other materials. We will require Indiana to enforce only approved provisions.
The provisions in the rule based on counterpart Federal regulations do not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations. The revisions made at the initiative of the State that do not have Federal counterparts have also been reviewed and a determination made that they do not have takings implications. This determination is based on the fact that this rulemaking has no takings implications.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. This determination is based on the fact that the Indiana program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Indiana program has no effect on Federally-recognized Indian tribes.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that a portion of the provisions in 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 is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that a portion of the State provisions are based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. For the portion of the State provisions that is not based upon counterpart Federal regulations, this determination is based upon the fact that the State provisions are voluntary and as such are not expected to have a substantive effect on the regulated industry.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that a portion of the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. For the portion of the State provisions that is not based upon counterpart Federal regulations, this determination is based upon the fact that the State provisions are voluntary and as such are not expected to have a substantive effect on the regulated industry.
Intergovernmental relations, Surface mining, Underground mining.
30 U.S.C. 1201
Nuclear Regulatory Commission.
Proposed rule.
The Nuclear Regulatory Commission (NRC) is proposing to amend its regulations that govern organization and functions of NRC offices. This action is necessary to clarify emergency preparedness program responsibilities of the Office of Nuclear Security and Incident Response. The current limiting reference of “nuclear reactors” would be replaced with the phrase “nuclear facilities.”
Comments on the proposed rule must be received on or before June 20, 2007.
You may submit comments by any one of the following methods. Please include the following number (RIN 3150-AI17) in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to:
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone (301) 415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at (301) 415-1101.
Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking Web site at
Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at
Kevin R. O'Sullivan, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-8112, e-mail
For additional information see the Direct Final Rule published in the final rules section of this
Because the NRC considers this action non-controversial and routine, the NRC is publishing this proposed rule concurrently as a direct final rule. The direct final rule will become effective on August 6, 2007. However, if the NRC receives significant adverse comments on the direct final rule by June 20, 2007, then the NRC will publish a document to withdraw the direct final rule. If the direct final rule is withdrawn, the NRC will address the comments received in response to the proposed revisions in a subsequent final rule. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period for this action if the direct final rule is withdrawn.
A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(A) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(B) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(C) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3) The comment causes the staff to make a change (other than editorial) to the rule.
Organization and function (Government agencies).
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR part 1.
1. The authority citation for part 1 continues to read as follows:
Secs. 23, 161, 68 Stat. 925, 948, as amended (42 U.S.C. 2033, 2201); sec. 29, Pub. L. 85-256, 71 Stat. 579, Pub. L. 95-209, 91 Stat. 1483 (42 U.S.C. 2039); sec. 191, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C. 2241); secs. 201, 203, 204, 205, 209, 88 Stat. 1242, 1244, 1245, 1246, 1248, as amended (42 U.S.C. 5841, 5843, 5844, 5845, 5849); 5 U.S.C. 552, 553; Reorganization Plan No. 1 of 1980, 45 FR 40561, June 16, 1980.
2. In § 1.46, paragraph (c) is revised to read as follows:
(c) Develops emergency preparedness policies, regulations, programs, and guidelines for nuclear facilities;
For the Nuclear Regulatory Commission.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes adopting a new airworthiness directive (AD) for Eurocopter France (Eurocopter) Model EC 130 B4 helicopters, with certain twist grip assemblies installed. This proposal would require inspecting the pilot and co-pilot collective levers for proper bonding between the twist grip drive tubes and the control pinions and if debonding is present, replacing the collective levers before further flight. This proposal is prompted by one incident in which the engine remained at idle speed although the twist grip had been turned to the flight position. The actions specified by this proposed AD are intended to detect debonding between the twist grip drive tubes and the control pinions on the pilot and co-pilot collective levers to prevent loss of cockpit throttle control of the engine, and subsequent loss of control of the helicopter.
Comments must be received on or before July 20, 2007.
Use one of the following addresses to submit comments on this proposed AD:
•
•
•
•
•
You may get the service information identified in this proposed AD from American Eurocopter Corporation, 2701 Forum Drive, Grand Prairie, Texas 75053-4005, telephone (972) 641-3460, fax (972) 641-3527.
You may examine the comments to this proposed AD in the AD docket on the Internet at
Ed Cuevas, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Safety Management Group, Fort Worth, Texas 76193-0111, telephone (817) 222-5355, fax (817) 222-5961.
We invite you to submit any written data, views, or arguments regarding this proposed AD. Send your comments to the address listed under the caption
We will post all comments we receive, without change, to
You may examine the docket that contains the proposed AD, any comments, and other information in person at the Docket Management System (DMS) Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located at the plaza level of the Department of Transportation Nassif Building in Room PL-401 at 400 Seventh Street, SW., Washington, DC. Comments will be available in the AD docket shortly after the DMS receives them.
The European Aviation Safety Agency (EASA) notified us that an unsafe condition may exist on Eurocopter Model EC 130 B4 helicopters, with a twist grip assembly, part number (P/N) 350A27520900, 350A27520901, 350A27520902, or 350A27520903, with a serial number below 64, installed on the pilot's side, and a twist grip assembly, P/N 350A27521201, with a serial number below 67, installed on the co-pilot's side. EASA advises that analysis of an incident that occurred during autorotation training revealed a failure of the twist grip drive tube and control pinion bonded attachment. The engine remained at idle rating although the twist grip had been turned back to the flight position. The manufacturer states that the autorotation procedure continued without damage to the helicopter, which landed safely. The failure has been attributed to non-compliant surface preparation during manufacture.
Eurocopter, an EADS Company, has issued Alert Service Bulletin EC130 No. 76A001, dated February 10, 2006, which specifies a check by use of a twist grip adjusting gauge of the bonding between the twist grip drive tube and the control pinion on both the pilot and co-pilot collective levers. If the twist grip twists under a load on the adjusting gauge of 35N, the collective lever must be replaced. EASA classified this service bulletin as mandatory and issued AD No. 2006-0079, dated April 3, 2006, to ensure the continued airworthiness of these helicopters in France.
This helicopter 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
This previously described unsafe condition is likely to exist or develop on other helicopters of the same type design registered in the United States. Therefore, the proposed AD would require, within 110 hours time-in-service (TIS) or 4 months, whichever occurs first, or before the installation of a collective lever with an affected twist grip assembly on a helicopter, inspecting the bonding between the twist grip drive tube and the control pinion on both the pilot and co-pilot collective levers. If debonding is present, replacing the collective lever with an airworthy collective lever that has been inspected in accordance with paragraph (a) of this proposed AD, or a collective lever with a twist grip assembly that is not listed in the Applicability of this proposed AD is required before further flight. The actions would be required to be accomplished by following the specified portions of the alert service bulletin described previously.
We estimate that this proposed AD would affect 73 helicopters of U.S. registry. The debonding inspection would take approximately 0.25 work hour per helicopter and replacing a collective lever would take approximately 2 work hours, at an average labor rate of $80 per work hour. If replacement is necessary, required parts would cost approximately:
• $8,651 for a co-pilot twist grip assembly, P/N 350A27521201;
• $12,542 for a pilot twist grip assembly, P/N 350A27520903;
• $5 for a clamp, P/N ASNA0021;
• $2 for a bolt, P/N 22125BC050014L; and
• $1 for a nut, P/N 22431BC050L.
Based on these figures, we estimate the total cost impact of the proposed AD on U.S. operators to be $10,271, assuming one co-pilot twist grip assembly is replaced in one helicopter, that the twist grip adjusting gage (tool) and spring scale needed are on-site and available, that the co-pilot twist grip assembly is not covered by warranty, and no pilot twist grip assembly will need to be replaced. The manufacturer has indicated that parts are covered by warranty up to 1,000 hours or 2 years after the purchase of a new helicopter, however it was indicated that labor is not covered by a warranty.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. Additionally, 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 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 draft economic evaluation of the estimated costs to comply with this proposed AD. See the DMS to examine the draft economic evaluation.
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.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (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. Section 39.13 is amended by adding a new airworthiness directive to read as follows:
To detect a reduced bonding strength of the control pinion on the pilot and co-pilot collective lever drive tubes, which could lead to failure of a twist grip drive tube and control pinion bonded attachment, resulting in loss of engine throttle control and subsequent loss of control of the helicopter, accomplish the following:
(a) Inspect the pilot and co-pilot collective levers for proper bonding between the twist grip drive tubes and the control pinions in accordance with paragraphs 2.B.1. and 2.B.2. of the Accomplishment Instructions, in Eurocopter, an EADS Company, Alert Service Bulletin EC130 No. 76A001, dated February 10, 2006, except you are neither required to contact the manufacturer nor return a non-compliant collective lever.
(b) If a twist grip turns when applying the 35N load to the twist grip, before further flight, replace the collective lever with an airworthy collective lever that has been inspected in accordance with paragraph (a) of this AD, or a collective lever with a twist grip assembly that is not listed in the Applicability of this AD.
(c) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Manager, Safety Management Group, FAA, ATTN: Ed Cuevas, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Safety Management Group, Fort Worth, Texas 76193-0111, telephone (817) 222-5355, fax (817) 222-5961, for information about previously approved alternative methods of compliance.
The subject of this AD is addressed in EASA (France) AD 2006-0079, dated April 3, 2006.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This amendment proposes adopting a new airworthiness directive (AD) for Eurocopter France (ECF) Model EC130 B4 helicopters. This proposal would require, within 100 hours time-in-service (TIS), modifying and testing the wiring of the battery overheat sensing circuit. This proposal is prompted by a malfunction in the battery overheat sensing circuit found during a scheduled inspection. The actions specified by this proposed AD are intended to correct the connection of the thermal switch to the cockpit indicator light, to notify the flight crew of an overheated battery, and to prevent a thermal runaway of the battery, an in-flight fire, and subsequent loss of control of the helicopter.
Comments must be received on or before July 20, 2007.
Use one of the following addresses to submit comments on this proposed AD:
•
•
•
•
•
You may get the service information identified in this proposed AD from American Eurocopter Corporation, 2701 Forum Drive, Grand Prairie, Texas 75053-4005, telephone (972) 641-3460, fax (972) 641-3527.
You may examine the comments to this proposed AD in the AD docket on the Internet at
Gary Middleton, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Policy Group, Fort Worth, Texas 76193-0111, telephone (817) 222-5197, fax (817) 222-5961.
We invite you to submit any written data, views, or arguments regarding this proposed AD. Send your comments to the address listed under the caption
We will post all comments we receive, without change, to
You may examine the docket that contains the proposed AD, any comments, and other information in person at the Docket Management System (DMS) Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located at the plaza level of the Department of Transportation Nassif Building in Room PL-401 at 400 Seventh Street, SW., Washington, DC. Comments will be available in the AD docket shortly after the DMS receives them.
The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on ECF Model EC130 B4 helicopters. The DGAC advises that a malfunction of the battery overheat sensing function, due to incorrect wiring of the battery overheat sensing circuit, was found during a scheduled maintenance. The DGAC also advises that failure of the battery overheat sensing function to operate could give rise to a fire in the event of thermal runaway of the battery.
ECF has issued Alert Telex No. 24A001, dated December 20, 2005 (AT). The AT specifies modifying and testing the battery overheat sensing circuit (MOD 073572) for batteries located in the right-hand side baggage compartment (not modified per OP-3685 or 073739) and for batteries in the tailboom (modified per OP-3685 or 073739). The DGAC classified this AT as mandatory and issued AD No. F-2006-010, dated January 4, 2006, to ensure the continued airworthiness of these helicopters in France.
This helicopter model is manufactured in France and is type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, the DGAC has kept us informed of the situation described above. We have examined the findings of the DGAC, 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.
This previously described unsafe condition is likely to exist or develop on other helicopters of the same type design registered in the United States. Therefore, the proposed AD would require, within 100 hours TIS, modifying and testing the wiring of the battery overheat sensing circuit. The actions of this AD would be required to be accomplished by following the specified portions of the alert telex described previously.
We estimate that this proposed AD would affect 68 helicopters of U.S. registry. Modifying and testing the overheat sensing circuit wiring would take about 1 work hour per helicopter at an average labor rate of $80 per work hour. Based on these figures, we estimate the total cost impact of the proposed AD on U.S. operators to be $5440.
We have determined that this proposed AD would not have federalism
For the reasons discussed above, I certify that the 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 draft economic evaluation of the estimated costs to comply with this proposed AD. See the DMS to examine the draft economic evaluation.
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.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (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. Section 39.13 is amended by adding a new airworthiness directive to read as follows:
To correct the connection of the thermal switch to the cockpit indicator light, to notify the flight crew of an overheated battery, and to prevent a thermal runaway of the battery, an in-flight fire, and subsequent loss of control of the helicopter, do the following:
(a) Modify the wiring of the battery overheat sensing circuit and test the battery overheat sensing indicator light by following the Accomplishment Instructions, paragraph 2.B.1. or 2.B.2., depending on the location of the battery, of Eurocopter Alert Telex No. 24A001, dated December 20, 2005.
(b) Modifying and testing the battery overheat sensing circuit by following paragraph (a) of this AD is terminating action for the requirements of this AD.
(c) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Manager, Rotorcraft Directorate, FAA, ATTN: Gary Middleton, Aviation Safety Engineer, Regulations and Policy Group, Fort Worth, Texas 76193-0111, telephone (817) 222-5197, fax (817) 222-5961, for information about previously approved alternative methods of compliance.
The subject of this AD is addressed in Direction Generale De L'Aviation Civile (France) AD No. F-2006-010, dated January 4, 2006.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for PW PW4164, PW4168, and PW4168A turbofan engines with certain low pressure turbine (LPT) stage 4 disks, part number (P/N) 51N404, installed. This proposed AD would require removing certain LPT stage 4 disks, listed by serial number at the next piece-part exposure or within 7,500 cycles-since-new (CSN), whichever occurs first. This proposed AD results from a report of improperly manufactured LPT stage 4 disks. We are proposing this AD to prevent an uncontained engine failure due to low-cycle fatigue (LCF), which could result in damage to the airplane.
We must receive any comments on this proposed AD by July 20, 2007.
Use one of the following addresses to comment on this proposed AD.
•
• Government
•
•
•
You may examine the comments on this proposed AD in the AD docket on the Internet at
V. Rose Len, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone (781) 238-7772; fax (781) 238-7199.
We invite you to send us 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 Docket Management Facility 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 September 29, 2006, we received a report of 16 LPT stage 4 disks, P/N 51N404, manufactured with an improper material process. The disks were not properly heat treated during the manufacturing process. The manufacturer solution-heat treated the disks for one hour instead of the four hours required. We believe this manufacturing discrepancy will result in reduced LCF properties for the disks. Operating the affected disks to the certified life limit could result in uncontained failure of the disk due to LCF. Although we have received no reports of disk separations, this condition, if not corrected, could result in the disk separating from the engine due to LCF, which could result in damage to the airplane.
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 removing certain LPT stage 4 disks, P/N 51N404, listed by serial number in the proposed AD, at the next piece-part exposure, or within 7,500 CSN, whichever occurs first.
We estimate that this proposed AD would affect 11 engines installed on airplanes of U.S. registry. We also estimate that it would take about 250 work-hours per engine to perform the proposed action, if not done at piece-part exposure, and that the average labor rate is $80 per work-hour. Required parts would cost about $186,288 per engine. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $2,269,168.
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. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
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 adding the following new airworthiness directive:
(a) The Federal Aviation Administration (FAA) must receive comments on this airworthiness directive (AD) action by July 20, 2007.
(b) None.
(c) This AD applies to Pratt & Whitney PW4164, PW4168, and PW4168A turbofan engines with certain low pressure turbine (LPT) stage 4 disks, part number (P/N) 51N404, that have a serial number listed in the following Table 1 of this AD installed. These engines are installed on, but not limited to, Airbus A330-200 and A330-300 series airplanes.
(d) This AD results from a report of improperly manufactured LPT stage 4 disks. We are issuing this AD to prevent an uncontained engine failure due to low-cycle fatigue, which could result in damage to the airplane.
(e) You are responsible for having the actions required by this AD performed at the next piece-part exposure after the effective date of this AD or within 7,500 cycles-since-new, unless the actions have already been done.
(f) Remove from service any LPT stage 4 disk that has a serial number listed in Table 1 of this AD.
(g) After the effective date of this AD, do not install any disk, P/N 51N404, that has a serial number listed in Table 1 of this AD or any disk removed as specified in paragraph (f) of this AD except as allowed by paragraph (h) of this AD.
(h) 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.
(i) Under 14 CFR part 39.23, we are prohibiting the special flight permits for this AD.
(j) None.
Advisory Council on Historic Preservation.
Notice of Department of the Air Force Adoption of Program Comments for Cold War Era (1946-1974) Unaccompanied Personnel Housing, World War II and Cold War Era (1939-1974) Ammunition Storage Facilities from the Advisory Council on Historic Preservation, and Notice of Availability of Final Environmental Assessment and Finding of No Significant Impact.
This provides notice of the Air Force's adoption of the Advisory Council on Historic Preservation's Program Comments for Cold War Era Unaccompanied Personnel Housing (1946-1974), World War II and Cold War Era (1939-1974) Ammunition Storage Facilities, and the availability of the final Environment Assessment and Finding of No Significant Impact for the actions.
This Program Comment goes into effect on May 21, 2007.
To obtain copies of the Program Comments, the final EA and signed FONSI, visit Defense Environmental Network Information eXchange (DENIX) Web site at
Dave Berwick (202) 606-8505.
Section 106 of the National Historic Preservation Act requires Federal agencies to consider the effects of their undertakings on historic properties and provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment with regard to such undertakings. ACHP has issued the regulations that set forth the process through which Federal agencies comply with these duties. Those regulations are codified under 36 CFR part 800 (“Section 106 regulations”).
Under Section 800.14(e) of those regulations, agencies can request ACHP to provide a “Program Comment” on a particular category of undertakings in lieu of conducting individual reviews of each individual undertaking under such category, as set forth in 36 CFR 800.4 through 800.6. An agency can meet its Section 106 responsibilities for those undertakings by taking into account ACHP's Program Comment and by following the steps set forth in those comments.
On August 18, 2006, the Advisory Council on Historic Preservation approved and issued to the Department of Defense a Program Comment on World War II and Cold War era (1939-1974) Ammunition Storage Facilities, and a Program Comment on Cold War era (1946-1974) Unaccompanied Personnel Housing. The Program Comments pertain to all buildings and structures designed and built as ammunition storage facilities (DoD Real Property category group 42XXXX) within the years 1939-1974, and all buildings and structures that were designed and built as Unaccompanied Personnel Housing (DoD Real Property category group 72XXXX) in the years 1946-1974. The Program Comments include treatment measures for the following undertakings for these two categories of properties: ongoing operations, maintenance and repair; rehabilitation; renovation; mothballing; cessation of maintenance, new construction, demolition; deconstruction and salvage; remediation activities; and transfer, sale, lease, and closure of such facilities. The Department of the Air Force has taken into account the Advisory Council on Historic Preservation's Program Comment on World War II and Cold War era (1939-1974) Ammunition Storage Facilities, and the Program Comment on Cold War era (1946-1974) Unaccompanied Personnel Housing, and accepts and adopts these Program Comments. The Department of the Air Force ensures that the effects of these undertakings on these categories of historic properties is taken into account by execution of the steps identified as treatment measures in the Program Comments, Sections II.B. Treatment measures vary by property type. For Cold War era Unaccompanied Housing, the Department of the Air Force will prepare a supplemental context study that will be an appendix to the Army's existing study, “Unaccompanied Personnel Housing (UPH) During the Cold War (1946-1989).” For World War II and Cold War era Ammunition Storage Facilities, the Department of the Air Force will prepare a supplemental historic context study that will be an appendix to the Army's existing context study, “Army Ammunition and Explosives Storage in the United States, 1775-1945”. The Department of the Air Force will also document a representative sampling of the basic types of above-ground and earth covered ammunition storage facilities at three geographically dispersed locations that offer the greatest number and variety of resources constructed during the cold war. The Department of the Air Force will also prepare documentation of Cold War era Unaccompanied Personnel Housing at three geographically dispersed locations that offer the greatest number and variety of resources constructed during the Cold War. The full text of the Program Comments can be found on the DENIX Web site at
The Department of the Air Force also announces the availability of the final Environmental Assessment (EA) and signed Finding of No Significant Impact (FONSI) for the Program Comment process. Notice of the availability of the draft EA and FONSI was published in the
36 CFR 800.14(e)
Advisory Council on Historic Preservation.
Notice of Department of Navy Adoption of Program Comments for Cold War Era (1946-1974) Unaccompanied Personnel Housing, World War II and Cold War Era (1939-1974) Ammunition Storage Facilities from the Advisory Council on Historic Preservation, and Notice of Availability of Final Environmental Assessment and Finding of No Significant Impact.
This provide notice of the Navy's adoption of the Advisory Council on Historic Preservation's Program Comments for Cold War Era Unaccompanied Personnel Housing (1946-1974), World War II and Cold War Era (1939-1974) Ammunition Storage Facilities, and the availability of the final Environmental Assessment and Finding of No Significant Impact for the actions.
This Program Comment goes into effect on May 21, 2007.
To obtain copies of the Program Comments, the final EA and signed FONSI, visit Defense Environmental Network Information eXchange (DENIX) Web site at
Dave Berwick (202) 606-8505.
Section 106 of the National Historic Preservation Act requires Federal agencies to consider the effects of their undertakings on historic properties and provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment with regard to such undertakings. ACHP has issued the regulations that set forth the process through which Federal agencies comply with these duties. Those regulations are codified under 36 CFR part 800 (“Section 106 regulations”).
Under Section 800.14(e) of those regulations, agencies can request ACHP to provide a “Program Comment” on a particular category of undertakings in lieu of conducting individual review of each individual undertaking under such category, as set forth in 36 CFR 800.4 through 800.6. An agency can meet its Section 106 responsibilities for those undertakings by taking into account ACHP's Program Comment and by following the steps set forth in those comments.
On August 18, 2006, the Advisory Council on Historic Preservation approved and issued to the Department of Defense a Program Comment on World War II and Cold War era (1939-1974) Ammunition Storage Facilities, and a Program Comment on Cold War era (1946-1974) Unaccompanied Personnel Housing. The Program Comments pertain to all buildings and structures designed and built as ammunition storage facilities (DoD Real Property category group 42XXXX) within the years 1939-1974, and all buildings and structures that were designed and built as Unaccompanied Personnel Housing (DoD) Real Property category group 72XXXX) in the years 1946-1974. The Program Comments include treatment measures for the following undertakings for these two categories of properties: ongoing operations, maintenance and repair; rehabilitation; renovation; mothballing; cessation of maintenance, new construction, demolition; deconstruction and salvage; remediation activities; and transfer, sale, lease, and closure of such facilities. The Department of the Navy has taken into account the Advisory Council on Historic Preservation's Program Comment on World War II and Cold War era (1939-1974) Ammunition Storage Facilities, and the Program Comment on Cold War ear (1946-1974) Unaccompanied Personnel Housing, and accepts and adopts these Program Comments. The Department of the Navy ensures that the effects of these undertakings on these categories of historic properties is taken into account by execution of the steps identified as treatment measures in the Program Comments, Sections II.B. Treatment measures vary by property type. For Cold War era Unaccompanied Housing, the Department of the Navy will prepare a supplemental context study that will be an appendix to the Army's existing study, “Unaccompanied Personnel Housing (UPH) During the Cold War (1946-1989).” For World War II and Cold War era Ammunition Storage Facilities, the Department of the Navy will prepare a supplemental historic context study that will an appendix to the Army's existing context study, “Army Ammunition and Explosives Storage in the United States. 1775-1945”. The Department of the Navy will also prepare documentation of ammunition storage facilities at four installations, to include three Navy installations and one Marine Corps installations. The Department of the Navy will also prepare documentation of Cold War era Unaccompanied Personnel Housing at four installations, to include three Navy installations and one Marine Corps installation. The full text of the Program Comments can be found on the DENIX Web site at
The Department of the Navy also announces the availability of the final Environmental Assessment (EA) and signed Finding of No Significant Impact (FONSI) for the Program Comment process. Notice of the availability of the draft EA and FONSI was published in the
36 CFR 800.14(e)
Advisory Council on Historic Preservation.
Notice of Army Adoption of Program Comments for Cold War Era (1946-1974) Unaccompanied Personnel Housing, World War II and Cold War Era (1939-1974) Ammunition Storage Facilities, and World War II and Cold War Era (1939-1974) Army Ammunition Production Facilities and Plants from the Advisory Council on Historic Preservation, and Notice of Availability of Final Environmental Assessment and Finding of No Significant Impact.
This provides notice of the Army's adoption of the Advisory Council on Historic Preservation's Program Comments for Cold War Era Unaccompanied Personnel Housing (1946-1974), World War II and Cold War Era (1939-1974) Ammunition Storage Facilities, and World War II and Cold War Era (1939-1974) Army Ammunition Production Facilities and Plants, and the availability of the final Environmental Assessment and Finding of No Significant Impact for the actions.
This Program Comment goes into effect on May 21, 2007.
To obtain copies of the Program Comments, the final EA and signed FONSI, visit Defense Environmental Network Information eXchange (DENIX) Web site at
Dave Berwick (202) 606-8505.
Section 106 of the National Historic Preservation Act requires Federal agencies to consider the effects of their undertakings on historic properties and provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment with regard to such undertakings. ACHP has issued the regulations that set forth the process through which Federal agencies comply with these duties. Those regulations are codified under 36 CFR part 800 “Section 106 regulations”).
Under Section 800.14(e) of those regulations, agencies can request ACHP to provide a “Program Comment” on a particular category of undertakings in lieu of conducting individual reviews of each individual undertaking under such category, as set forth in 36 CFR 800.4 through 800.6. An agency can meet its Section 106 responsibilities for those undertakings by taking into account ACHP's Program Comment and by following the steps set forth in those comments.
On August 18, 2006, the Advisory Council on Historic Preservation approved and issued to the Department of the Army a Program Comment for World War II and Cold War era (1939-1974) Army Ammunition Production Facilities and Plants, and to the Department of Defense a Program Comment on World War II and Cold War era (1939-1974) Ammunition Storage Facilities, and a Program Comment on Cold War era (1946-1974) Unaccompanied Personnel Housing. The Program Comments pertain to all Army ammunition production facilities (Army Real Property category group 226XX) built between 1939 and 1974, all properties built between 1939 and 1974 at Army Ammunition Plants, all buildings and structures designed and built as ammunition storage facilities (DoD Real Property category group 42XXXX) within the years 1939-1974, and all buildings and structures that were designed and built as Unaccompanied Personnel Housing (DoD Real Property category group 72XXXX) in the years 1946-1974. The Program Comments include treatment measures for the following undertakings for these four categories of properties: ongoing operations, maintenance and repair; rehabilitation; renovation; mothballing; cessation of maintenance, new construction; demolition; deconstruction and salvage; remediation activities; and transfer, sale, lease, and closure of such facilities. The Department of the Army has taken into account the Advisory Council on Historic Preservation's Program Comment for World War II and Cold War era (1939-1974) Army Ammunition Production Facilities and Plants, the Program Comment on World War II and Cold War era (1939-1974) Ammunition Storage Facilities, and the Program Comment on Cold War era (1946-1974) Unaccompanied Personnel Housing, and accepts and adopts these Program Comments. The Department of the Army ensures that the effects of these undertakings on these categories of historic properties is taken into account by execution of the steps identified as treatment measures in the Program Comments, Sections II.A. Treatment measures vary by property type. For Cold War era Unaccompanied Housing, the Army will prepare a publicly available version of the existing context entitled “Unaccompanied Personnel Housing (UPH) During the Cold War (1946-1989).” For World War II and Cold War era Ammunition Storage Facilities, the Army will prepare a Historic Context on ammunition storage facilities that covers the Cold War era; a context entitled “Army Ammunition and Explosive Storage in the United States, 1775-1945” already exists. The Army will also prepare documentation of ammunition storage facilities at nine installations, six of which have World War II-era properties, and three of which have Cold War era properties. For the World War II and Cold War era Army Ammunition Facilities and Plants, the Army will prepare a Historic Context, and develop documentation of selected architecturally significant ammunition production facilities and Plants at two installations. Finally, the Army will prepare a display and popular publication on the ammunition production process, from production to storage. The full text of the Program Comments can be found on the DENIX Web site at
The Army also announces the availability of the final Environmental Assessment (EA) and signed Finding of No Significant Impact (FONSI) for the Program Comment process. Notice of the availability of the draft EA and FONSI was published in the
36 CFR 800.14(e)
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) 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; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to 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 should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Revised Notice of Intent to prepare an Environmental Impact Statement.
This NOI revises information supplied in the NOI previously published in the
A public mailing outlining the project timeline and public involvement opportunities opportunities (Schedule of Proposed Actions) was distributed quarterly from January 2006 to April 2007. Additional opportunities for comment will be provided after release of the Draft Environmental Impact Statement (DEIS). The DEIS is projected to be filed with the Environmental Protection Agency (EPA) in Fall 2007 and will begin a 45-day comment period. The Final Environmental Impact Statement (FEIS) and Record of Decision are anticipated to be published in Spring 2008.
Please send written comments to Wrangell Ranger District,
Jamie Roberts, Planning Team Leader, or Mark Hummel, District Ranger, Wrangell Ranger District, P.O. Box 51, Wrangell, AK 99929, telephone (907) 874-2323.
The Navy project area is located on central Etolin Island approximately 22 air miles southwest of Wrangell, Alaska. The project area is within portions of Value Comparison Units #464, 465, 466, 467 and 468. Portions of three Inventoried Roadless Areas, North Etolin #232, Mosman #233 and South Etolin #234, as identified in the Forest Plan SEIS, are located within the project area. Timber harvest and road building is proposed within the Inventoried Roadless Areas. The project area includes four small old-growth reserves (Mosman, Quiet, Anita Bay and Burnett) as designated in the Forest Plan. A Forest Plan amendment would be required if a decision is made to modify any old-growth reserve. The Forest Supervisor will decide if and how much timber harvest and road building will occur within the project areas, as well as whether to modify the existing small old-growth reserves. The decision will be based on the information that is disclosed in the EIS. The Forest Supervisor will consider comments, responses, the disclosure of environmental effects, and applicable laws, regulations, and policies in making the decision. The rationale for the decision will be included in the Record of Decision.
The Deemed Export Advisory Committee (DEAC), which advises the Secretary of Commerce on deemed export licensing policy, will meet on Tuesday, June 19, 2007 from approximately 8:30 a.m. to 12:30 p.m. The DEAC is a Federal Advisory Committee that was established under the auspices of the Federal Advisory Committee Act, as amended, 5 U.S.C. app. 2. The meeting location will be Boston, MA, with exact details to be announced in a subsequent Federal Register Notice. At this time, the Department of Commerce, Bureau of Industry and Security (BIS), would like to solicit stakeholders from industry, academia and other backgrounds to address the DEAC members on June 19 in an open session on issues related to deemed exports and, in particular, their organizations' perspectives and concerns related to U.S. deemed export control policies. Stakeholders are those individuals or organizations who have some experience in or knowledge of export control regulations and policies, who must apply these rules in the course of normal business or whose operations are directly impacted by those export regulations and policies mandated by the U.S. government. BIS seeks to have an equal number of presenters from industry, academia, and other backgrounds. There may be up to three presenters from each group and speaking time may be limited to 10 minutes or less per speaker depending on the number of interested parties. Speakers may be selected on the basis of one or more of the following criteria (not in any order of importance): (1) Demonstrated experience in and knowledge of export control regulations; (2) demonstrated ability to provide DEAC members with relevant information related to deemed export policies and issues; (3) the degree to which the organization is impacted by the U.S. Government's export policies and regulations; and (4) industry area or academic type of institution represented. BIS reserves the right to limit the number of participants based on time considerations. For planning purposes, BIS requests that (1) that interested parties inform BIS of their commitment, via e-mail or telephone call, to address the DEAC no later than 5 p.m. EST May 30, 2007, as well as provide a brief outline of the topics to be discussed by this same deadline; and, (2) that once interested parties receive confirmation of their participation at the meeting, they provide either an electronic or paper copy of any prepared remarks/presentations no later than 5 p.m. EST June 12, 2007. Interested parties may contact Ms. Yvette Springer at
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is currently conducting the 2005/2006 new shipper reviews of the antidumping duty order on silicon metal from the People's Republic of China (“PRC”). We preliminarily determine that sales have been made below normal value (“NV”) with respect to certain exporters and that certain exporters are entitled to a separate rate in the new shipper reviews. If these preliminary results are adopted in our final results of these reviews, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on entries of subject merchandise during the period of review (“POR”) for which the importer-specific assessment rates are above
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.
May 21, 2007.
Scot Fullerton or Christopher Riker, 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) 482-1386 or (202) 482-3441, respectively.
The Department received timely requests from Shanghai Jinneng International Trade Co., Ltd. (“Shanghai Jinneng”) and Jiangxi Gangyuan Silicon Industry Co., Ltd. (“Jiangxi Gangyuan”) on June 23, 2006, pursuant to section 751(a)(2)(B) the Tariff Act of 1930, as amended (“the Act”), and in accordance with 19 CFR 351.214(c), for new shipper reviews of the antidumping duty order on silicon metal from the PRC.
On June 2, 2006, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on silicon metal from the PRC.
On July 25, 2006, the Department initiated new shipper reviews of Shanghai Jinneng and Jiangxi Gangyuan covering the period June 1, 2005, through May 31, 2006.
On December 21, 2006, the Department extended the deadline for the preliminary results of the new shipper reviews until May 14, 2007.
The product covered by the order and this review is silicon metal containing at least 96.00 but less than 99.99 percent of silicon by weight, and silicon metal with a higher aluminum content containing between 89 and 96 percent
On July 26, 2006, we issued antidumping duty questionnaires to Shanghai Jinneng and Jiangxi Gangyuan.
On August 31, 2006, both Shanghai Jinneng and Jiangxi Gangyuan responded to section A of the Department's questionnaire. The Department received responses to sections C & D of its questionnaire from both Shanghai Jinneng and Jiangxi Gangyuan on September 18, 2006. On October 2, 2006, the Department received responses to its importer questionnaire from both Shanghai Jinneng and Jiangxi Gangyuan.
On September 28, 2006, the Department issued a supplemental section A questionnaire to Jinagxi Gangyuan. On October 18, 2006, the Department issued a second supplemental questionnaire to Jiangxi Gangyuan. On October 27, 2006, the Department issued a supplemental questionnaire to Shanghai Jinneng. On November 3, 2006, Jianxi Gangyuan submitted its response to the Department's supplemental section A questionnaire. On November 16, 2006, Jiangxi Gangyuan submitted its response to the Department's second supplemental questionnaire. On December 4, 2006, Shanghai Jinneng submitted its response to the Department's October 27, 2006, questionnaire.
On February 2, 2007, the Department issued a third supplemental questionnaire to Jiangxi Gangyuan. On March 5, 2007, Jinagxi Gangyuan submitted its response to the third supplemental questionnaire. On March 6, 2007, the Department issued a second supplemental response to Shanghai Jinneng. Shanghai Jinneng submitted its response to the Department's second questionnaire on March 28, 2007.
On October 19, 2006, the Department provided parties with an opportunity to submit publicly available information (“PAI”) on surrogate countries and values for consideration in these preliminary results.
On February 15, 2007, the respondents
On April 6, 2007, petitioner submitted rebuttal surrogate value data (see Letter to the U.S. Department of Commerce, from petitioner, regarding
The Department verified the questionnaire responses of Jiangxi Gangyuan on April 4-6, 2007, and Shanghai Jinneng on April 9-10, 2007 (which included a verification of Shanghai Jinneng's affiliated producer, Datong Jinneng, on April 11-12, 2007). For these companies, 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,
For the reasons stated below, we preliminarily find that Shanghai Jinneng's and Jiangxi Gangyuan's reported U.S. sales during the POR appear to be
In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (“NME”) country. Pursuant to section 771(18)(C)(i) of the Act, any determination that a foreign country is a NME country shall remain in effect until revoked by the administering authority.
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 (A) are at a level of economic development comparable to that of the NME country, and (B) are significant producers of comparable merchandise. Of the five countries identified by the Office of Policy as economically comparable to the PRC, data supplied by respondents and petitioner indicate that both India and Egypt are both significant producers of merchandise comparable to silicon metal. The record, however, lacks Egyptian data to value quartzite (the source of silicon in silicon metal), charcoal, and rice straw, as well as contemporaneous Egyptian values for certain other inputs as well as freight. However, with respect to India, sufficient publicly available surrogate value information is available on the record. Therefore, we used India as the primary surrogate country to value all inputs.
For further discussion of our surrogate country selection,
To establish whether a company operating in an NME is sufficiently independent to be entitled to a separate rate, the Department analyzes each exporting entity under the test established in the
The Department considers the following criteria in determining whether an individual company is free of
In their questionnaire responses, Shanghai Jinneng and Jiangxi Gangyuan stated that they are independent legal entities, and placed evidence on the record that indicates that the PRC government does not have
The following laws, which have been placed on the record of this review, indicate a lack of de jure government control. The
The Department typically considers four factors in evaluating whether a respondent is subject to
Shanghai Jinneng and Jiangxi Gangyuan have both asserted the following:
(1) Each establishes its own export prices; (2) each negotiates contracts without guidance from any governmental entities or organizations; (3) each makes its own personnel decisions; and
(4) each 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. Moreover, the Department verified that Shanghai Jinneng and Jiangxi Gangyuan are free of de facto government control. Based upon information on the record, there is a sufficient basis to preliminarily determine that Shanghai Jinneng and Jiangxi Gangyuan have demonstrated an absence of
To determine whether Shanghai Jinneng's and Jiangxi Gangyuan's sales of the subject merchandise to the United States were made at prices below NV, their United States prices were compared to NV, as described in the “United States Price” and “Normal Value” sections of this notice.
For Shanghai Jinneng and Jiangxi Gangyuan, the Department based U.S. price on export price (“EP”) in accordance with section 772(a) of the Act, because the first sales to unaffiliated purchasers were made prior to importation, and constructed export price (“CEP”) was not otherwise warranted by the facts on the record. We calculated EP based on packed prices from the exporter to the first unaffiliated purchaser in the United States. Where applicable, foreign inland freight, foreign brokerage and handling expenses, and ocean freight were deducted from the starting price (gross unit price) in accordance with section 772(c) of the Act.
Section 773(c)(1) of the Act provides that the Department shall determine NV using a factors of production (“FOP”) methodology if the merchandise is exported from an NME country and the available 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 and 19 CFR 351.408. 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 selected surrogate values for 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, the Department calculated NV based on the FOPs reported by Shanghai Jinneng and Jiangxi Gangyuan for the POR. To calculate NV, the reported per-unit factor quantities was multiplied by publicly available surrogate values. As appropriate, we adjusted input prices by including freight costs to reflect delivered prices. For a detailed explanation of all surrogate values used for respondents,
Except where discussed below, we valued raw material inputs using June 2005-May 2006 weighted-average Indian import values derived from the
In instances where we relied on Indian import data to value inputs, in accordance with the Department's practice, we excluded imports from both NME countries and countries deemed to maintain broadly available, non-industry-specific subsidies which may benefit all exporters to all export markets (
To value the input of quartzite, data from the 2005 edition of the Indian Minerals Yearbook published by the Indian Bureau of Mines that accounted for the period April 2004 through March 2005. This data precedes the POR and was adjusted for inflation.
To value charcoal, we used Indian import data that accounted for the POR from the
To value carbon electrodes, we used Indian import data that accounted for the POR from the
To value petroleum coke, we used Indian import data that accounted for the POR from the Monthly Statistics for HTS numbers 2713.11.00 (petroleum coke not calcined). This data coincides with the POR and was not adjusted for inflation.
To value coal, we used Indian import data that accounted for the POR from the Monthly Statistics for HTS number 2719.10.20, for steam coal. This data coincides with the POR and was not adjusted for inflation.
To value fuel wood, we used Indian import data that accounted for the POR from the Monthly Statistics for HTS numbers 4401.10. This data coincides with the POR and was not adjusted for inflation.
To value rice straw, we used Indian import data that accounted for the POR from the Monthly Statistics for HTS numbers 1213.00.00. The data coincides with the POR and was not adjusted for inflation.
To value silica fume, we used Indian import data that accounted for the POR from the Monthly Statistics for HTS numbers 2811.22.00. This data coincides with the POR and was not adjusted for inflation.
To value the bags used as packing materials for subject merchandise and silica fume, we used Indian import data that accounted for the POR from the
Section 351.408(c)(3) of the Department's regulations requires the use of a regression-based wage rate. Therefore, to value the labor input, the Department used the regression-based wage rate for the PRC published by Import Administration on its website.
We valued electricity using rates from
To value truck freight expenses for both raw materials and subject merchandise, we used an average rate per kilometer per metric ton calculated from data obtained from the web site of an Indian transport company, InFreight Technologies India Ltd. This data coincides with the POR and was not adjusted for inflation.
To value rail freight expenses for the shipment of petroleum coke, we used the rail freight tariff in effect for August 2004 as published by Indian Railways, and inflated it for the POR.
To value SG&A, factory overhead and profit, the Department used the 2005-2006 financial statements from Indsil Eletrosmelts Limited and Nava Bharat Ferro Alloys Limited.
We also note that Jiangxi Gangyuan erred in reporting the total product used in the calculation of the factors of production. Therefore, for purposes of these preliminary results, we are amending the reported total production
Finally, we also note that Shanghai Jinneng erred in reporting its silica fume bags, and labor consumption. Therefore, for purposes of these preliminary results, we are amending the calculated consumption of both the silica fume bags and labor calculation. For a more detailed explanation,
We made currency conversions using exchange rates obtained from the website of Import Administration at http://ia.ita.doc.gov/exchange/index.html.
We preliminarily determine that the following margins exist for Shanghai Jinneng and Jiangxi Gangyuan during the period June 1, 2005, through May 31, 2006:
We will disclose the calculations used in our analysis to parties to these proceedings within five days of the date of publication of this notice.
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.
Any interested party may request a hearing within 30 days 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 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. See 19 CFR 351.310(c). Issues raised in the hearing will be limited to those raised in the briefs.
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 intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of these new shipper reviews. For assessment purposes, where possible, we calculated importer-specific assessment rates for silicon metal from the PRC via
The following cash deposit requirements will be effective upon publication of the final results of these reviews 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 manufacturers/exporters listed above, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, no cash deposit will be required); (2) for subject merchandise exported by Shanghai Jinneng or Jiangxi Gangyuan, but not manufactured by Datong Jinneng or Jiangxi Gangyuan, respectively, the cash deposit rate will continue to be the PRC-wide rate (
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 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.
NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce.
On April 18, 2007, a Notice of Motion to Terminate the Panel Review of the Final Determination of the Antidumping Investigation on Imports of Fresh Apples, merchandise classified in tariff item 08.08.10.01 from the United States of America, independent
Pursuant to the Notice of Motion to Terminate the Panel Review and support of that motion, the panel review is terminated as of May 3, 2007. A panel has not been appointed to this panel review. Pursuant to Rule 71(2) of the
Caratina L. Alston, United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, Washington, DC 20230, (202) 482-5438.
Chapter 19 of the North American Free-Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.
Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada and the Government of Mexico established
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.
Notice of availability; request for comments.
NMFS announces the availability of the Draft Revised Recovery Plan ( Draft Revised Plan), dated May 2007, for the western and eastern distinct population segments (DPS) of Steller sea lion (
Comments on the Draft Revised Plan must be received by close of business on August 20, 2007.
Send comments to Kaja Brix, Assistant Regional Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: Ellen Walsh. Comments may be submitted by:
• E-mail:
• Mail: P.O. Box 21668, Juneau, AK 99802.
• Hand delivery to the Federal Building: 709 West 9th Street, Juneau, AK.
• Fax: (907) 586 7012.
Interested persons may obtain the Draft Revised Plan for review from the above address or online from the NMFS Alaska Region website:
Kaja Brix, (907 586 7235), e-mail
Recovery plans are guidance documents that describe the actions considered necessary for the conservation and recovery of species listed under the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531
NMFS' goal is to restore endangered and threatened Steller sea lion (
The first Steller sea lion recovery plan was completed in December 1992 and encompassed the entire range of the species. However, the recovery plan became obsolete after the split into two DPSs in 1997. By that time, nearly all of the recovery actions recommended in the original plan were completed. In 2001, NMFS assembled a new recovery team to update the plan. The team was
In May 2006, NMFS released the draft Steller Sea Lion Recovery Plan for public review and comment (71 FR 29919). On July 20, 2006, NMFS extended the customary 60-day comment period until September 1, 2006 (71 FR 41206) to provide additional time for public review and comments. NMFS received comments from 18 individuals and organizations during the 100-day comment period. We reviewed these comments and incorporated recommendations into the Draft Revised Plan. A summary of public comments and NMFS' formal response to these comments are available online at
Due to extensive public interest and the controversial nature of this recovery plan, NMFS is releasing the Draft Revised Plan for another round of public reviews and comments. This will provide the public an opportunity to review changes made based on earlier public input and to provide further comments prior to release of the final Steller Sea Lion Recovery Plan.
The Draft Revised Plan contains: (1) A comprehensive review of Steller sea lion ecology, (2) a review of previous conservation actions, (3) a threats assessment, (4) biological and recovery criteria for downlisting and delisting, (4) actions necessary for the recovery of the species, and (5) estimates of time and costs for recovery.
The threats assessment concludes that the following threats to the western DPS are relatively minor: Alaska Native subsistence harvest, illegal shooting, entanglement in marine debris, disease, and disturbance from vessel traffic and scientific research. Although much has been learned about Steller sea lions and the North Pacific ecosystem, considerable uncertainty remains about the magnitude and likelihood of the following potential threats (relative impacts in parenthesis): competition with fisheries (potentially high), environmental variability (potentially high), killer whale predation (medium), incidental take by fisheries (low), and toxic substances (medium). In contrast, no threats were identified for the eastern DPS. Although several factors that affect the western DPS also affect the eastern DPS (e.g., environmental variability, killer whale predation, toxic substances, disturbance), these threats do not appear to be limiting recovery of the population at this time.
The Draft Revised Plan identifies an array of substantive actions that will foster recovery of the western DPS by addressing the broad range of threats. It highlights three actions (detailed below) that are especially important to the recovery program for the western DPS:
1.
2.
3.
Criteria for reclassification of the eastern DPS and western DPS of Steller sea lion are included in the Draft Revised Plan. In summary, the western DPS of Steller sea lion may be reclassified from endangered to threatened status when all of the following have been met: (1) Counts of non-pups in the U.S. portion of the DPS have increased for 15 years (on average); (2) the population ecology and vital rates in the U.S. region are consistent with the observed trend; (3) the non-pup trends in at least five of the seven sub-regions are consistent with the overall U.S. trend, and the population trend in any two adjacent sub-regions can not be declining significantly; and (4) all five listing factors [as described in section 4(a)(1) of the ESA] are addressed.
The western DPS of Steller sea lion may be delisted when all of the following conditions have been met: (1) Counts of non-pups in the U.S. portion of the DPS have increased at an average annual rate of three percent for 30 years (i.e., 3 generations); (2) the population ecology and vital rates in the U.S. region are consistent with the observed trend; (3) the non-pup trends in at least five of the seven sub-regions are consistent with the overall U.S. trend, the population trend in any two adjacent sub-regions can not be declining significantly, and the population trend in any single sub-region can not have declined by more than 50 percent; and (4) all five listing factors are addressed.
The eastern DPS of Steller sea lion may be delisted when all of the following have been met: (1) The population has increased at an average rate of three percent per year for 30 years (i.e., three generations); (2) the population ecology and vital rates are consistent with the observed trend; and (4) all five listing factors are addressed.
Time and costs for recovery actions for the western DPS are estimated at $93,840,000 for the first 5 fiscal years and $430,425,000 for full recovery. The recovery program for the eastern DPS will cost an estimated $150,000 for the first year and $1,050,000 total, including 10 years of post-delisting monitoring.
NMFS solicits written comments on the draft Revised Recovery Plan. All substantive comments received by the date specified above will be considered prior to final approval of the Plan.
Section 4(f) of the ESA (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of overfished determination.
This action serves as a notice that NMFS, on behalf of the Secretary of Commerce (Secretary), has determined that winter skate is overfished. NMFS notified the New England Fishery Management Council (Council) of its determination by letter. The Council is required to take action within 1 year following NMFS notification that overfishing is occurring or a stock is approaching overfishing, a stock is overfished or approaching an overfished condition, or existing remedial action taken to end overfishing or rebuild an overfished stock has not resulted in adequate progress.
Debra Lambert, telephone: (301) 713-2341.
Pursuant to sections 304(e)(2) and (e)(7) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1854(e)(2) and (e)(7), and implementing regulations at 50 CFR 600.310(e)(2), NMFS sends written notification to fishery management councils when overfishing is occurring or a stock is approaching overfishing; a stock is overfished or approaching an overfished condition, or existing action taken to end previously identified overfishing or rebuilding a previously identified overfished stock or stock complex has not resulted in adequate progress. On February 20, 2007, the NMFS Northeast Regional Administrator sent a letter notifying the Council that winter skate is overfished.
A copy of the notification letter sent to the Council for the aforementioned determination is available at
Within 1 year of a notification under Magnuson-Stevens Act sections 304(e)(2) or (e)(7), the respective Council must take remedial action in response to the notification, to end overfishing if overfishing is occurring; rebuild an overfished stock or stock complex to the abundance that can produce maximum sustainable yield within an appropriate time frame; prevent overfishing from occurring if a stock is approaching overfishing; and/or prevent a stock from becoming overfished if it is approaching an overfished condition (see implementing regulations at 50 CFR 600.310(e)(3)). Such action must be submitted to NMFS within 1 year of notification and may be in the form of a new fishery management plan (FMP), an FMP amendment, or proposed regulations.
11 a.m., Friday, June 29, 2007.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance Matters.
Eileen A. Donovan, 202-418-5100.
11 a.m., Friday, June 8, 2007.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance Matters.
Eileen A. Donovan, 202-418-5100.
11 a.m., Friday, June 15, 2007.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance Matters.
Eileen A. Donovan, 202-418-5100.
11 a.m., Friday, June 22, 2007.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance Matters.
Eileen A. Donovan, 202-418-5100.
11 a.m., Friday, June 29, 2007.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance Matters.
Eileen A. Donovan, 202-418-5100.
Coordinating Council on Juvenile Justice and Delinquency Prevention.
Notice of meeting.
The Coordinating Council on Juvenile Justice and Delinquency Prevention (Council) is announcing its June 8, 2007 meeting.
Friday, June 8, 2007, 8:30 a.m. to 12:30 p.m.
The meeting will take place at the U.S. Department of Agriculture (USDA), Waterfront Centre, 800 Ninth Street, SW., in Meeting Room 1410.
Robin Delany-Shabazz, Designated Federal Official, by telephone at 202-307-9963 [
The Coordinating Council on Juvenile Justice and Delinquency Prevention, established pursuant to Section 3(2)A of the Federal Advisory Committee Act (5 U.S.C. App. 2) will meet to carry out its advisory functions under Section 206 of the Juvenile Justice and Delinquency Prevention Act of 2002, 42 U.S.C. 5601,
Although designated agency representatives may attend, the Council membership is composed of the Attorney General (Chair), the Secretary of Health and Human Services, the Secretary of Labor, the Secretary of Education, the Secretary of Housing and Urban Development, the Administrator of the Office of Juvenile Justice and Delinquency Prevention (Vice Chair), the Director of the Office of National Drug Control Policy, the Chief Executive Officer of the Corporation for National and Community Service, and the Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement. Up to nine additional members are appointed by the Speaker of the House of Representatives, the Senate Majority Leader, and the President of the United States.
The agenda for this meeting will include: (a) Opening remarks from USDA's Deputy Secretary Charles F. Conner; (b) a panel on the partnership between USDA's 4-H Programs and the military and the implications of that particular model of collaboration for federal coordination concerning children and youth issues; (c) reports from the Council's working groups; (d) legislative, program and agency updates; and (e) other business and announcements.
For security purposes, members of the public who wish to attend the meeting must pre-register online at
Photo identification will be required for admission to the meeting.
Interested parties may submit written comments by Friday June 1, 2007, to Robin Delany-Shabazz, Designated Federal Official for the Coordinating Council on Juvenile Justice and Delinquency Prevention, at
Department of Defense.
Notice of meeting.
Pursuant to Public Law 92-463, notice is hereby given of a forthcoming meeting of the National Security Education Board Group of Advisors. The purpose of the meeting is to review and make recommendations to the Board concerning requirements established by the David L. Boren National Security Education Act, Title VIII of Public Law 102-183, as amended.
June 7-8, 2007.
University of Denver, Room 301 Ben M. Cherrington Hall, 2201 S. Gaylord Street, Denver, CO 80208.
Dr. Kevin Gormley, Program Officer, National Security Education Program, 1101 Wilson Boulevard, Suite 1210, Rosslyn P.O. Box 20010, Arlington, Virginia 22209-2248; (703) 696-1991. Electronic mail address:
The National Security Education Board Group of Advisors meeting is open to the public. The public is afforded the opportunity to submit written statements associated with NSEP.
Department of the Navy, DoD.
Notice to delete two systems of records.
The Department of the Navy is deleting two systems of records in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on June 20, 2007 unless comments are received which result in a contrary determination.
Send comments to the Department of the Navy, PA/FOIA Policy Branch, Chief of Naval Operations (DNS-36), 2000 Navy Pentagon, Washington, DC 20350-2000.
Mrs. Doris Lama at (202) 685-6545.
The Department of the Navy systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The Department of Navy proposes to delete two systems of records notice from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed deletion is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports.
Federal Housing Administration Mortgage Insurance System (February 22, 1993, 58 FR 10721).
Employee Assistance Program Case Record System (February 22, 1993, 58 FR 10819).
Record system is no longer in use since OPM stopped their mandatory reporting requirement in the mid-1990s.
Defense Nuclear Facilities Safety Board.
Notice.
The Defense Nuclear Facilities Safety Board is publishing its annual update to the Freedom of Information Act (FOIA) Fee Schedule pursuant to 10 CFR 1703.107(b)(6) of the Board's regulations.
May 10, 2007.
Brian Grosner, General Manager, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, Washington, DC 20004-2901, (202) 694-7060.
The FOIA requires each Federal agency covered by the Act to specify a schedule of fees applicable to processing of requests for agency records. 5 U.S.C. 552(a)(4)(A)(i). On March 15, 1991, the Board published for comment in the
Pursuant to 10 CFR 1703.107(b)(6) of the Board's regulations, the Board's General Manager will update the FOIA Fee Schedule once every 12 months. Previous Fee Schedule updates were published in the
Accordingly, the Board issues the following schedule of updated fees for services performed in response to FOIA requests:
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 July 20, 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
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
Department of Education.
List of Correspondence from July 1, 2006 through September 30, 2006.
The Secretary is publishing the following list pursuant to section 607(f) of the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (IDEA). Under section 607(f) of IDEA, the Secretary is required, on a quarterly basis, to publish in the
Melisande Lee or JoLeta Reynolds. Telephone: (202) 245-7468.
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 this notice in an alternative format (
The following list identifies correspondence from the Department issued from July 1, 2006 through September 30, 2006. Included on the list are those letters that contain interpretations of the requirements of IDEA and its implementing regulations, as well as letters and other documents that the Department believes will assist the public in understanding the requirements of the law and its regulations. The date of and topic addressed by a letter are identified, and summary information is also provided, as appropriate. To protect the privacy interests of the individual or individuals involved, personally identifiable information has been deleted, as appropriate.
○ Letter dated July 11, 2006 to individuals (personally identifiable information redacted), regarding whether a State must use the term “mental retardation” or any other terms contained in the definition of “child with a disability” from Part B of IDEA when describing children eligible for services under IDEA and State law.
○ Letter dated September 19, 2006 to U.S. Senator Judd Gregg, regarding the maintenance and programming of surgically implanted medical devices, including cochlear implants.
○ Letter dated July 26, 2006 to Maryland State Department of Education Assistant Superintendent Carol Ann Baglin, regarding the maintenance of effort requirements in Part B of IDEA that apply to local educational agencies (LEAs) and a State educational agency's responsibilities to ensure that its LEAs comply with these requirements.
○ Letter dated September 5, 2006 to Chief State School Officers, regarding efforts to ensure that all core academic subjects are taught by highly qualified and effective teachers and asking States to restrict the use of High Objective Uniform State Standard of Evaluation (HOUSSE) procedures to certain situations.
○ Letter dated February 2, 2006 to Pennsylvania Department of Education Assistant Counsel Karen S. Feuchtenberger, from Family Policy Compliance Office Director LeRoy S. Rooker, regarding whether, under the Family Educational Rights and Privacy Act, a charter school may disclose certain personally identifiable information from the education records of a child with a disability, in the absence of parent consent, to the child's school district of residence in order to obtain an additional State subsidy for children with disabilities receiving special education and related services at the charter school.
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.
The official version of this document is the document published in the
Department of Education.
List of Correspondence from October 1, 2006 through December 31, 2006.
The Secretary is publishing the following list pursuant to section 607(f) of the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (IDEA). Under section 607(f) of IDEA, the Secretary is required, on a quarterly basis, to publish in the
Melisande Lee or JoLeta Reynolds. Telephone: (202) 245-7468.
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 this notice in an alternative format (
The following list identifies correspondence from the Department issued from October 1, 2006 through December 31, 2006. Included on the list are those letters that contain interpretations of the requirements of IDEA and its implementing regulations, as well as letters and other documents that the Department believes will assist the public in understanding the requirements of the law and its regulations. The date of and topic addressed by a letter are identified, and summary information is also provided, as appropriate. To protect the privacy interests of the individual or individuals involved, personally identifiable information has been deleted, as appropriate.
○ Letter dated November 20, 2006 to Washington, DC attorney Leigh Manasevit, regarding the reallocation of high cost funds that were not expended before the last year of availability.
○ Letter dated December 22, 2006 to National Association of Public Health Systems Executive Director Mark Covall, regarding the obligation to ensure that a free appropriate public education is available to children with disabilities who are placed by a non-educational public agency in a public or private residential program and clarifying that determining the specific school district or local educational agency responsible for the cost of that residential placement is a matter of State law, policy or practice.
cir; Letter dated October 13, 2006 to Texas Education Agency General Counsel David A. Anderson, regarding confidentiality issues raised by IDEA and the Family Educational Rights and Privacy Act related to the public dissemination of special education due process hearing decisions.
○ Letter dated December 1, 2006 to U.S. Representative Christopher Smith, regarding the applicability of equitable participation requirements to children with disabilities ages three through five enrolled by their parents in private schools or facilities.
○ Letter dated October 19, 2006 to National Association of School Psychologists Executive Director Susan Gorin, regarding the role of school psychologists in administering assessments and the regulatory changes in procedures for evaluating children suspected of having learning disabilities
○ Letter dated October 19, 2006 to TASH Executive Director Barbara Trader, clarifying that the IDEA, while requiring the individualized education program team (IEP Team) to consider the use of positive behavioral interventions and supports, does not include a prohibition on the use of aversive behavioral interventions and that the decision whether to allow IEP Teams to consider the use of such interventions is a decision left to each State.
○ Letter dated November 3, 2006 to Iowa Bureau of Children, Family, and Community Services Chief Lana Michelson, regarding the educational placement of students, including
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.
The official version of this document is the document published in the
Take notice that on April 16, 2007 the California Independent System Operator Corporation filed a compliance filing, pursuant to Rules 213 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission, 18 CFR 385.213 and the Commission's Order issued October 25, 2006.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on May 8, 2007, El Paso Natural Gas Company (El Paso) filed a petition for declaratory order pursuant to Rule 207 of the Commission's Rules and Regulations (18 CFR 385.207), declaring that El Paso's tariff does not permit prior period adjustments for measurement and invoicing errors occurring more than six months prior to the date that UNS Gas Inc. (UNS) disputed transportation invoices, and finding specifically that any erroneous invoices were not the result of a mutual mistake of fact.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
El Segundo Power II LLC (El Segundo) filed an application for market-based rate authority, with an accompanying rate schedule. The proposed market-based rate schedule provides for the sale of energy, capacity and ancillary services at market-based rates. El Segundo also requested waivers of various Commission regulations. In particular, El Segundo requested that the Commission grant blanket approval
On May 11, 2007, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—West, granted the requests for blanket approval under Part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is June 11, 2007.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, El Segundo is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of El Segundo, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of El Segundo's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that during the month of April 2007, the status of the above-captioned entities as Exempt Wholesale Generators or Foreign Utility Companies became effective by operation of the Commission's regulations. 18 CFR 366.7(a).
On March 20, 2007, Commission staff rejected the application, filed November 13, 2006, by Rainier Engineering and Environmental, LLC (Rainer) for a preliminary permit under section 4(f) of the Federal Power Act
Rainer does not attribute any errors to staff's rejection of its application, but instead proffers assertedly appropriate maps to cure its application's deficiency and requests reconsideration of its application in light of its new submission.
Section 313(a) of the Federal Power Act, 16 U.S.C. 825
In any event, the submission of additional factual evidence in a request for rehearing is contrary to Commission policy,
It appears moreover that Rainier late filed
This notice constitutes final agency action. Request for rehearing this rejection notice must be filed within 30 days of the date of issuance of this notice, pursuant to 18 CFR 385.713 (2006).
Take notice that on April 30, 2007, Rockies Express Pipeline LLC (Rockies Express), 370 Van Gordon Street, Lakewood, Colorado 80228, filed an application in Docket No. CP07-208-000, pursuant to section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's regulations requesting a certificate of public convenience and necessity to construct certain pipeline facilities, referred to as the REX-East Project, to extend Rockies Express' certificated system eastward from its terminus in Audrain County, Missouri to Monroe County, Ohio and to increase the transportation capacity of its system from 1,500,000 Dth per day to 1,800,000 Dth per day, all as more fully set forth in the application which is on file with the Commission and open for public inspection. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Specifically, Rockies Express requests authorization to construct: (1) 638 miles of 42-inch pipeline in Audrain, Ralls, and Pike Counties, Missouri; Pike, Scott, Morgan, Sangamon, Christian, Macon, Moultrie, Douglas and Edgar Counties, Illinois; Vermillion, Parke, Putnam, Hendricks, Morgan, Johnson, Shelby, Decatur, and Franklin Counties, Indiana; and Butler, Warren, Clinton, Greene, Fayette, Pickaway, Fairfield, Perry, Morgan, Muskingum, Guernsey, Noble, Belmont, and Monroe Counties, Ohio; and (2) a total of approximately 236,000 horsepower of compression at seven new compressor stations in Carbon County, Wyoming; Phelps County, Nebraska; Audrain County, Missouri; Christian County, Illinois; Putnam County, Indiana; Butler County, Ohio; and Muskingum County, Ohio.
The cost of the project is approximately $2.2 billion. Rockies Express proposes to establish a new rate zone—Zone 3—consisting of all facilities located east of the terminus of Rockies Express' certificated facilities in Audrain County, Missouri. Further, Rockies Express requests a determination of rolled-in rate treatment for certain compression facilities located in existing Zone 1 and Zone 2.
Any questions regarding this application should be directed to Robert F. Harrington, Vice President—Regulatory, Rockies Express Pipeline LLC, P.O. Box 281304, Lakewood, Colorado 80228-8304, phone (303)763-3581.
On June 13, 2006, the Commission staff granted Rockies Express' request to utilize the Commission's Pre-Filing Process and assigned Docket No. PF06-30-000 to staff activities involving the Rockies Express REX-East Project. Now, as of the filing of Rockies Express' application on April 30, 2007, the Pre-Filing Process for this project has ended. From this time forward, Rockies Express' proceeding will be conducted in Docket No. CP07-208-000, as noted in the caption of this Notice.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify Federal and State agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all Federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Applicants: Oncor Electric Delivery Company; TXU Portfolio Management Company LP; Texas Energy Future Holdings Limited Partnership.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Docket Numbers: ES07-26-001.
Take notice that the Commission received the following electric reliability filings:
Docket Numbers: RR07-12-000.
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) on the natural gas pipeline facilities proposed by Sonora Pipeline, LLC (Sonora) in the above-referenced dockets.
The EA was prepared to satisfy the requirements of the National Environmental Policy Act. The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major Federal action significantly affecting the quality of the human environment.
The EA assesses the potential environmental effects of the construction and operation of Sonora's proposed Burgos Hub Export/Import Project (Project). The Project would involve construction of approximately 29 miles of 30-inch-diameter natural gas pipeline and appurtenant facilities in Hidalgo County, Texas. Two bidirectional border crossing facilities also proposed for construction (for which a Presidential Permit has been requested under Docket No. CP07-75-000) would consist of approximately 85 feet of 30-inch-diameter natural gas pipeline and appurtenant facilities. The purpose of the facilities is to provide up to 1,000,000 dekatherms per day (Dth/d) of new bi-directional transportation service to the Burgos Hub area of Mexico and then to the United States once new sources of natural gas become available from Mexico.
The EA has been placed in the public files of the FERC. A limited number of copies of the EA are available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference Room, 888 First Street, NE., Room 2A, Washington, DC 20426, (202) 502-8371.
Copies of the EA have been mailed to Federal, State, and local agencies, public interest groups, interested individuals, newspapers, and parties to this proceeding.
Any person wishing to comment on the EA may do so. To ensure consideration prior to a Commission decision on the proposal, it is important that we receive your comments before the date specified below.
Please note that the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
If you are filing written comments, please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your comments to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426;
• Reference Docket Nos. CP07-74-000,
• Label one copy of the comments for the attention of the Gas Branch 1, PJ-11.1; and
• Mail your comments so that they will be received in Washington, DC on or before June 14, 2007.
Comments will be considered by the Commission but will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your comments considered.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing motions to intervene and protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions is 60 days from the issuance of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene, protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
k. This application has been accepted for filing and is now is ready for environmental analysis.
l.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Register online at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
o.
The application will be processed according to the following Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.
At this time we do not anticipate the need for preparing a draft environmental assessment (EA). We intend to prepare one environmental document. The EA will include our recommendations for operating procedures and environmental enhancement measures that should be part of any new license issued by the Commission. Recipients will have 30 days to provide the Commission with any comments on that document. All comments on the EA, filed with the Commission, will be considered in an Order taking final action on the license application. However, should substantive comments requiring reanalysis be received on the NEPA document, we would consider preparing a subsequent NEPA document.
p. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of this notice.
q. A license applicant must file no later than 60 days following the date of issuance of the notice of acceptance and ready for environmental analysis provided for in § 5.22: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Environmental Protection Agency (EPA).
Notice of settlement.
Under Section 122(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the United States Environmental Protection Agency has entered into a settlement for reimbursement of past response costs concerning the Browder Trust Property Superfund Site located in Charleston, Charleston County, South Carolina.
The Agency will consider public comments on the settlement until June 20, 2007. 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.
Copies of the settlement are available from Ms. Paula V. Batchelor. Submit your comments, identified by Docket ID No. EPA-RO4-SFUND-2007-0396 or Site name Browder Trust Property Superfund Site by one of the following methods:
•
• E-mail:
• Fax: 404/562-8842/Attn Paula V. Batchelor.
Written comments may be submitted to Ms. Batchelor within 30 calendar days of the date of this publication.
Paula V. Batchelor at 404/562-8887.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than June 4, 2007.
Board of Governors of the Federal Reserve System, May 15, 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 June 14, 2007.
Board of Governors of the Federal Reserve System, May 15, 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 June 15, 2007.
Board of Governors of the Federal Reserve System, May 16, 2007.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 15, 2007.
Board of Governors of the Federal Reserve System, May 16, 2007.
Federal Trade Commission.
Notice.
The information collection requirements described below will be submitted to the Office of Management and Budget (“OMB”) for review, as required by the Paperwork Reduction Act (“PRA”). The Federal Trade Commission (“FTC” or “Commission”) is seeking public comments on its proposal to extend through July 31, 2010 the current OMB clearance for information collection requirements contained in its proposed Affiliate Marketing Rule (or “proposed Rule”). That clearance expires on July 31, 2007.
Comments must be filed by June 20, 2007.
Interested parties are invited to submit written comments. Comments should refer to “Affiliate Marketing Rule: FTC File No. R411006” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope and should be mailed or delivered, with two complete copies, to the following address: Federal Trade Commission, Room H-135 (Annex J), 600 Pennsylvania Ave., NW., Washington, DC 20580. Because paper mail in the Washington area and at the Commission is subject to delay, please consider submitting your comments in electronic form, as prescribed below. However, if the comment contains any material for which confidential treatment is requested, it must be filed in paper form, and the first page of the document must be clearly labeled “Confidential.”
Comments filed in electronic form should be submitted by following the instructions on the web-based form at
All comments should additionally be submitted to: Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission. Comments should be submitted via facsimile to (202) 395-6974 because U.S. Postal Mail is subject to lengthy delays due to heightened security precautions.
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments will be considered by the Commission and will be available to the public on the FTC Web site, to the extent practicable, at
Requests for additional information should be addressed to Anthony Rodriguez or Loretta Garrison, Attorneys, Division of Privacy and Identity Protection, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 326-2252.
On February 28, 2007, the FTC sought comment on the information collection requirements associated with its proposed rule. See 72 FR 9002. No comments were received. The FTC is providing this second opportunity for public comment while seeking OMB approval to extend the existing paperwork clearance for the Rule. All comments should be filed as prescribed in the
The Affiliate Marketing Rule, 16 CFR Part 680, was proposed by the FTC under section 214 of the Fair and Accurate Credit Transactions Act (“FACT Act”), Pub. L. No. 108-159 (December 6, 2003). The FACT Act amended the Fair Credit Reporting Act, 15 U.S.C. 1681
To minimize compliance costs and burdens for entities, particularly any small businesses that may be affected, the proposed Rule contains model disclosures and opt-out notices that may be used to satisfy the statutory requirements. The proposed Rule also gives covered entities flexibility to satisfy the notice and opt-out requirement by sending the consumer a free-standing opt-out notice or by adding the opt-out notice to the privacy notices already provided to consumers, such as those provided in accordance with the provisions of Title V, subtitle A of the GLBA. For covered entities that choose to prepare a free-standing opt-out notice, the time necessary to prepare it would be minimal because those entities could simply use the model disclosure. For covered entities that choose to incorporate the model opt-out notice into their GLBA privacy notices the time necessary to do so also would be minimal. Arguably, verbatim adoption of the model notice would not even be a PRA “collection of information.”
Except where otherwise specifically noted, staff's estimates of burden are based on its knowledge of the consumer credit industries and knowledge of the entities over which the Commission has jurisdiction. This said, estimating PRA burden of the proposed Rule's disclosure requirements is difficult given the highly diverse group of affected entities that may use certain eligibility information shared by their affiliates to send marketing notices to consumers.
The estimates provided in this burden statement may well overstate actual burden. First, an uncertain but possibly significant number of entities subject to the FTC's jurisdiction do not have affiliates and would thus not be covered by section 214 of the FACT Act or the proposed Rule. Second, Commission staff does not know how many companies subject to the FTC's jurisdiction under the proposed rule actually share eligibility information among affiliates and, of those, how many affiliates use such information to make marketing solicitations to consumers. Third, staff considered the wide variations in covered entities and the fact that, in some instances, covered entities may make the required disclosures in the ordinary course of business, apart from the FACT Act Rule, voluntarily as a service to their customers. Finally, still other entities may choose to rely on the exceptions to the proposed Rule's notice and opt-out requirements.
Staff's estimates assume a higher burden will be incurred during the first year of the OMB clearance period with a lesser burden for each of the subsequent two years, since the opt-out notice to consumers is required to be given only once. Institutions may provide for an indefinite period for the opt-out or they may time limit it, but for no less than five years. Given this minimum time period, Commission staff did not estimate burden for preparing and distributing extension notices by entities that limit the duration of the opt-out time period. The relevant PRA time frame for burden calculation is three years from renewed OMB clearance, and the five-year notice period will not begin until this proposed Rule becomes final.
Staff's labor cost estimates take into account: Managerial and professional time for reviewing internal policies and determining compliance obligations; technical time for creating the notice and opt-out, in either paper or electronic form; and clerical time for disseminating the notice and opt-out.
Staff estimates that approximately 1.17 million (rounded) non-GLBA entities under the jurisdiction of the FTC have affiliates and would be affected by the proposed Rule.
Based on the above, total burden for non-GLBA entities during the prospective three-year clearance period would be approximately 3,268,000 hours and associated labor cost approximately $92,247,000, rounded.
Entities that are subject to the Commission's GLBA privacy notice regulation already provide privacy notices to their customers.
Cumulatively for both GLBA and non-GLBA entities, the average annual burden over the prospective three-year clearance period, rounded, is approximately 1,105,000 burden hours and $31,302,000 in labor costs, rounded. GLBA entities are already providing notices to their customers so there are no new capital or non-labor costs, as this notice may be consolidated into their current notices. For non-GLBA entities, the rule provides for simple and concise model forms that institutions may use to comply. Thus, any capital or non-labor costs associated with compliance for these entities are negligible.
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) and the Assistant Secretary for Health have taken final action in the following case:
Specifically, Mr. Prabhakaran falsified and fabricated data that was included in a PowerPoint presentation and in a paper published in Immunity (Immunity 23:515-525, November 2005). Mr. Prabhakaran's research misconduct occurred while he was a student in the M.D./Ph.D. program for UP's School of Medicine. He is no longer in UP's Ph.D. program but is still enrolled in its M.D. program in the School of Medicine. The Immunity publication has been retracted (Immunity 24:657, May 2006).
Mr. Prabhakaran has entered into a Voluntary Exclusion Agreement in which he has voluntarily agreed, for a period of four (4) years, beginning on March 15, 2007:
(1) To exclude himself from serving in any advisory capacity to PHS, including but not limited to service on any PHS advisory committee, board, and/or peer review committee, or as a consultant; and
(2) That any institution that submits an application for PHS support for a research project on which Mr. Prabhakaran's participation is proposed, that uses him in any capacity on PHS supported research, or that submits a report of PHS-funded research in which he is involved must concurrently submit a plan for supervision of his duties to the funding agency for approval. The supervisory plan must be designed to ensure the scientific integrity of his research contribution. Mr. Prabhakaran agreed to ensure that a copy of the supervisory plan also is submitted to ORI by the institution. Mr. Prabhakaran agreed that he will not participate in any PHS-supported research until such a supervision plan is submitted to ORI.
Director, Division of Investigative Oversight, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453-8800.
Title IV-B provides for child welfare services funding and title IV-E provides for foster care maintenance payments for eligible children. Sections 442(b)(2) and (8)(A)(ii) of the Act require States to coordinate services and assistance under Federal programs, including titles IV-B and IV-E, and to ensure that States are operating a case review system that meets the review system that meets the requirements of section 475(5) of the Act.
Title IV-E funding, Section 471(a) of the Act, requires that State plans provide for the development of a case plan for each child receiving foster care maintenance payments and provide for a case review system that meets the requirements described in section 475(5)(B) of the Act with respect to each child.
The case plan is a written document that provides a narrative description of the child-specific program of care that addresses the needs of each child regarding safety, permanency and well-being. Federal regulations at 45 CFR 1356.21(g) and section 475(1) of the Act delineate the specific information that should be addressed in the case plan. ACF neither specifies a recordkeeping format for the case plan nor requires submission of the case plan to the Federal Government. Case plan information is recorded in a format developed and maintained by State child welfare agencies. Case plans are periodically reviewed under the purview of State case review systems.
In computing the number of burden hours for this information collection, ACF based the annual burden estimates on States' experiences in developing case plans.
Estimated Total Annual Burden Hours: 1,823,799.
In compliance with the requirements of Section 3506(c)(2)(a) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary fro 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 collection of information; (c) the quality, utility, and clarity of the information to be 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 within 60 days of this publication.
Notice is hereby given that I have redelegated to the Regional Program Managers, Office of Child Support Enforcement, the following authorities vested in me by the Assistant Secretary of Administration for Children and Families in the memoranda dated February 16, 2007.
(a) Authorities Delegated.
1. The authority to approve Title IV-D State plans and amendments.
2. Authority to certify and transmit State requests for full collection services by the Secretary of Treasury and State applications to use courts of the United States to enforce court orders.
(b) Limitations.
1. These redelegations shall be exercised under financial and administrative requirements applicable to all Administration for Children and Families authorities.
2. The authority to approve Title IV-D State plans and amendments requires review and clearance by legal counsel and consultation with Central Office, Office of Child Support Enforcement, except as provided in written guidelines issued by the Commissioner.
3. These authorities may not be redelegated.
(c) Effective Date.
This redelegation is effective on the date of signature.
(d) Effect on Existing Delegations.
This redelegation of authority supersedes all previous delegations from the Deputy Director/Commissioner, Office of Child Support Enforcement, on these subjects.
I hereby affirm and ratify any actions taken by any Regional Program Manager which, in effect, involved the exercise of these authorities prior to the effective date of this redelegation.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by June 20, 2007.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-6974. All comments should be identified with the OMB control number 0910-0518. Also include the FDA docket number found in brackets in the heading of this document.
Liz Berbakos, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857,301-827-1482.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA is requesting OMB approval under the PRA (44 U.S.C. 3507) for the reporting and recordkeeping requirements contained in the guidance for industry entitled “Continuous Marketing Applications (CMA): Pilot 2—Scientific Feedback and Interactions During Development of Fast Track Products Under PDUFA.” This guidance discusses how the agency will implement a pilot program for frequent scientific feedback and interactions between FDA and applicants during the investigational phase of the development of certain Fast Track drug and biological products. Applicants are asked to apply to participate in the Pilot 2 program.
In conjunction with the June 2002 reauthorization of the Prescription Drug User Fee Act of 1992 (PDUFA), FDA agreed to meet specific performance goals (PDUFA Goals). The PDUFA Goals include two pilot programs to explore the CMA concept. The CMA concept builds on the current practice of interaction between FDA and applicants during drug development and application review and proposes opportunities for improvement. Under the CMA pilot program, Pilot 2, certain drug and biologic products that have been designated as Fast Track (i.e., products intended to treat a serious and/or life-threatening disease for which there is an unmet medical need) are eligible to participate in the program.
Pilot 2 is an exploratory program that allows FDA to evaluate the impact of frequent scientific feedback and interactions with applicants during the investigational new drug application (IND) phase. Under the pilot program, a maximum of one Fast Track product per review division in FDA's Center for Drug Evaluation and Research (CDER) and Center for Biologics Evaluation and Research (CBER) is selected to participate. This guidance provides information regarding the selection of participant applications for Pilot 2, the formation of agreements between FDA and applicants on the IND communication process, and other procedural aspects of Pilot 2. FDA began accepting applications for participation in Pilot 2 on October 1, 2003.
The guidance describes one collection of information: Applicants who would like to participate in Pilot 2 must submit an application (Pilot 2 application) containing certain information outlined in the guidance. The purpose of the Pilot 2 application is for the applicants to describe how their designated Fast Track product would benefit from enhanced communications between FDA and the applicant during the product development process.
FDA's regulation at § 312.23 (21 CFR 312.23) states that information provided to the agency as part of an IND must be submitted in triplicate and with an appropriate cover form. Form FDA 1571 must accompany submissions under INDs. 21 CFR part 312 and FDA Form 1571 have a valid OMB control number: OMB control number 0910-0014, which expires May 31, 2009.
In the guidance document, CDER and CBER ask that a Pilot 2 application be submitted as an amendment to the application for the underlying product under the requirements of § 312.23; therefore, Pilot 2 applications should be submitted to the agency in triplicate with Form FDA 1571. The agency recommends that a Pilot 2 application be submitted in this manner for two reasons: (1) To ensure that each Pilot 2 application is kept in the administrative file with the entire underlying application and (2) to ensure that pertinent information about the Pilot 2 application is entered into the appropriate tracking databases. Use of the information in the agency's tracking databases enables the agency to monitor progress on activities.
Under the guidance, the agency asks applicants to include the following information in the Pilot 2 application:
• Cover letter prominently labeled “Pilot 2 application”;
• IND number;
• Date of Fast Track designation;
• Date of the end-of-phase 1 meeting, or equivalent meeting and summary of the outcome;
• A timeline of milestones from the drug or biological product development program, including projected date of new drug application (NDA)/biologics license application submissions;
• Overview of the proposed product development program for a specified disease and indication(s), providing information about each of the review disciplines (e.g., chemistry/manufacturing/controls, pharmacology/toxicology, clinical, clinical pharmacology and biopharmaceutics);
• Rationale for interest in participating in Pilot 2, specifying the ways in which development of the subject drug or biological product would be improved by frequent scientific feedback and interactions with FDA and the potential for such communication to benefit public health by improving the efficiency of the product development program; and
• Draft agreement for proposed feedback and interactions with FDA.
This information is used by the agency to determine which Fast Track products are eligible for participation in Pilot 2. Participation in this pilot program is voluntary.
Based on the number of Pilot 2 applications submitted to CDER and CBER during fiscal year 2004 and 2005, we estimate that the number of applications received annually for Pilot 2 is 7 for products regulated by CDER
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for NOXAFIL and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that human drug product.
Submit written comments and petitions to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy (HFD-007), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the human drug product becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product NOXAFIL (posaconazole). NOXAFIL is indicated for prophylaxis of invasive
FDA has determined that the applicable regulatory review period for NOXAFIL is 3,650 days. Of this time, 3,382 days occurred during the testing phase of the regulatory review period, while 268 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,789 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Comments and petitions should be submitted to the Division of Dockets Management. Three copies of any mailed information are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for IRESSA and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that human drug product.
Submit written comments and petitions to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy (HFD-007), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the human drug product becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product IRESSA (gefitinib). IRESSA is indicated as monotherapy for the continued treatment of patients with locally advanced or metastatic non-small cell lung cancer after failure of both platinum-based and docetaxel chemotherapies who are benefiting or have benefited from IRESSA. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for IRESSA (U.S. Patent No. 5,770,599) from AstraZeneca UK Limited, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated October 19, 2004, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of IRESSA represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for IRESSA is 1,967 days. Of this time, 1,693 days occurred during the testing phase of the regulatory review period, while 274 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 374 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Comments and petitions should be submitted to the Division of Dockets Management. Three copies of any mailed information are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document.
Comments and petitions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for GALILEO INTRAVASCULAR RADIOTHERAPY SYSTEM and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that medical device.
Submit written comments and petitions to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy (HFD-007), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the device and continues until permission to market the device is granted. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a medical device will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(3)(B).
FDA recently approved for marketing the medical device, GALILEO INTRAVASCULAR RADIOTHERAPY SYSTEM. GALILEO INTRAVASCULAR RADIOTHERAPY SYSTEM is indicated to deliver beta radiation to the site of successful percutaneous coronary intervention (PCI) for the treatment of in-stent restenosis in native coronary arteries with discrete lesions ≤ 47 millimeters (mm) in a reference vessel diameter 2.4 mm to 3.7 mm. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for GALILEO INTRAVASCULAR RADIOTHERAPY SYSTEM (U.S. Patent No. 5,199,939) from Guidant Corp., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated October 31, 2002, FDA advised the Patent and Trademark Office that this medical device had undergone a regulatory review period and that the approval of GALILEO INTRAVASCULAR RADIOTHERAPY SYSTEM represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for GALILEO INTRAVASCULAR RADIOTHERAPY SYSTEM is 1,523 days. Of this time, 1,203 days occurred during the testing phase of the regulatory review period, while 320 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension.
Anyone with knowledge that any of the dates as published is incorrect may submit to the Division of Dockets Management (see
Comments and petitions should be submitted to the Division of Dockets Management. Three copies of any mailed information are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Carlos Peña at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing a publication containing modifications the agency is making to the list of standards FDA recognizes for use in premarket reviews (FDA recognized consensus standards). This publication, entitled “Modifications to the List of Recognized Standards, Recognition List Number: 017” (Recognition List Number: 017), will assist manufacturers who elect to declare conformity with consensus standards to meet certain requirements for medical devices.
Submit written or electronic comments concerning this document at any time. See section VII of this document for the effective date of the recognition of standards announced in this document.
Submit written requests for single copies of “Modifications to the List of Recognized Standards, Recognition List Number: 017” to the Division of Small Manufacturers, International and Consumer Assistance, Center for Devices and Radiological Health (HFZ-220), Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send two self-addressed adhesive labels to assist that office in processing your requests, or fax your request to 240-276-3151. Submit written comments concerning this document, or recommendations for additional standards for recognition, to the contact person (see
Carol L. Herman, Center for Devices and Radiological Health (HFZ-84), Food and Drug Administration, 2098 Gaither Road, Rockville, MD 20850, 240-276-0533.
Section 204 of the Food and Drug Administration Modernization Act of 1997 (FDAMA) (Public Law 105-115) amended section 514 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360d). Amended section 514 allows FDA to recognize consensus standards developed by international and national organizations for use in satisfying portions of device premarket review submissions or other requirements.
In a notice published in the
These notices describe the addition, withdrawal, and revision of certain standards recognized by FDA. The agency maintains “hypertext markup language (HTML)” and “portable document format (PDF)” versions of the list of “FDA Recognized Consensus Standards.” Both versions are publicly accessible at the agency's Internet site. See section VI of this document for electronic access information. Interested persons should review the supplementary information sheet for the standard to understand fully the extent to which FDA recognizes the standard.
FDA is announcing the addition, withdrawal, correction, and revision of certain consensus standards the agency will recognize for use in satisfying premarket reviews and other requirements for devices. FDA will incorporate these modifications in the list of FDA Recognized Consensus Standards in the agency's searchable database. FDA will use the term “Recognition List Number: 017 to identify these current modifications.
In Table 2 of this document, FDA describes the following modifications: (1) The withdrawal of standards and their replacement by others, (2) the correction of errors made by FDA in listing previously recognized standards, and (3) the changes to the supplementary information sheets of recognized standards that describe revisions to the applicability of the standards.
In section III of this document, FDA lists modifications the agency is making that involve the initial addition of standards not previously recognized by FDA.
In table 3 of this document, FDA provides the listing of new entries and consensus standards added as modifications to the list of recognized standards under Recognition List Number: 017.
FDA maintains the agency's current list of FDA recognized consensus standards in a searchable database that may be accessed directly at FDA's Internet site at
Any person may recommend consensus standards as candidates for recognition under the new provision of section 514 of the act by submitting such recommendations, with reasons for the recommendation, to the contact person (See
You may obtain a copy of “Guidance on the Recognition and Use of Consensus Standards” by using the Internet. CDRH maintains a site on the Internet for easy access to information including text, graphics, and files that you may download to a personal computer with access to the Internet. Updated on a regular basis, the CDRH home page includes the guidance as well as the current list of recognized standards and other standards related documents. After publication in the
You may access “Guidance on the Recognition and Use of Consensus Standards,” and the searchable database for “FDA Recognized Consensus Standards” through the hyperlink at
This
Interested persons may submit to the contact person (see
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.
The present invention utilizes the characteristic chemical property of hydrazide groups on one reactant to react with aldehyde groups or cyanate esters on the other reactant with an improved conjugate yield of at least sixty percent. With this conjugation efficiency the leftover unconjugated protein and polysaccharide would not need to be removed and thus the purification process of the conjugate product can be limited to diafiltration to remove the by-products of small molecules. The new conjugation reaction can be carried out within one or two days with reactant concentrations between 1 and 25 mg/mL at PS/protein ratios from 1:2 to 3:1, at temperatures between 4 and 40 degrees Centigrade, and in a pH range of 5.5 to 7.4, optimal conditions varying from PS to PS.
It is generally recognized that an effective vaccine against
A safety and immunogenicity study in infants are underway. The aim is to administer the conjugate vaccine with routine infant immunization. Preliminary results show the vaccine is safe in 2 months old infants.
Notice is hereby given of a change in the meeting of the National Cancer Advisory Board, June 14, 2007, 2 p.m. to June 15, 2007, 12 p.m., National Institutes of Health, Building 31, 31 Center Drive, Bethesda, MD 20892, which was published in the
The notice is being amended to change the open session start and end times on June 14, 2007 to 1:15 p.m.—4:20 p.m. and the end time on June 15, 2007 to 11:45 a.m. The meeting is partially 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 provision 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 give 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.
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 property.
Notice is hereby given of a change in the meeting of the Developmental Biology Subcommittee, June 7, 2007, 8:30 a.m. to June 7, 2007, 5 p.m., Hotel Washington, Pennsylvania Avenue at 15th Street, NW., Washington, DC
The meeting will now be held at the Hyatt Regency in Crystal City, 2799 Jefferson Davis Highway, Arlington, Virginia, from 8:30 a.m. to 5 p.m. 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.
Notice is hereby given of a change in the meeting of the Skeletal Biology Structure and Regeneration Study Section, June 3, 2007, 8 a.m. to June 5, 2007, 5 p.m. The Watergate, 2650 Virginia Avenue, NW., Washington, DC 20037 which was published in the
The meeting will be held June 4, 2007, 8 a.m. to June 5, 2007, 5 p.m. The meeting location remains the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, June 7, 2007, 8 a.m. to June 7, 2007, 5 p.m. DoubleTree Hotel-Washington, DC, 1515 Rhode Island Avenue, NW., Washington, DC 20005 which was published in the
The meeting will be held June 7, 2007, 8 a.m. to June 8, 2007, 5 p.m. The meeting 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
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 associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species or marine mammals.
Written data, comments or requests must be received by June 20, 2007.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The public is invited to comment on the following applications for a permit to conduct certain activities with marine mammals. The applications were submitted to satisfy requirements of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (Ursus maritimus) sport hunted from the Lancaster Sound polar bear population in Canada for personal, noncommercial use.
Fish and Wildlife Service, Interior.
Notice of issuance of permits for endangered species.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of Availability (NOA) of the Record of Decision (ROD) for the Final Environmental Impact Statement for the Atlantic Rim Natural Gas Field Development Project, Carbon County, Wyoming.
In accordance with the National Environmental Policy Act of 1969, the Bureau of Land Management (BLM) announces the availability of the ROD for the Atlantic Rim Natural Gas Field Development Project, Carbon County, Wyoming.
The ROD will be available electronically on the following Web site:
• Bureau of Land Management, Wyoming State Office, 5353 Yellowstone Road, Cheyenne, Wyoming 82003.
• Bureau of Land Management, Rawlins Field Office, 1300 N. Third Street, Rawlins, Wyoming 82301.
David Simons, Project Leader, Rawlins Field Office, P.O. Box 2407, Rawlins, Wyoming 82301, telephone (307) 328-4328.
This ROD addresses the Atlantic Rim Natural Gas Field Development Project, located in Carbon County, Wyoming. The Atlantic Rim project encompasses approximately 270,080 acres, of which 173,672 acres are Federal surface (179,438 acres Federal minerals) administered by the BLM Rawlins Field Office; 14,060 acres are State of Wyoming lands (12,384 acres State of Wyoming minerals); and 82,348 acres are private surface (78,258 acres private minerals). Copies of the ROD have been sent to affected Federal, State, and local government agencies and interested parties.
Bureau of Land Management, Interior.
The Bureau of Land Management (BLM) is scheduled to file the plats of survey of the lands described below thirty (30) calendar days from the date of this publication in the BLM Wyoming State Office, Cheyenne, Wyoming.
Bureau of Land Management, 5353 Yellowstone Road, P.O. Box 1828, Cheyenne, Wyoming 82003.
This survey was executed at the request of the United States Department of Agriculture, Forest Service, Medicine Bow National Forest and is necessary for the management of these lands. The lands surveyed are:
The plat and field notes representing the dependent resurvey of a portion of the east boundary, a portion of the west boundary, a portion of the subdivisional lines, and the subdivision of certain sections, Township 18 North, Range 79 West, Sixth Principal Meridian, Wyoming, was accepted May 14, 2007.
Copies of the preceding described plat and field notes are available to the public at a cost of $1.10 per page.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before May 5, 2007.
Pursuant to section 60.13 of 36 CFR Part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St., NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by June 5, 2007.
A request for removal has been made for the following resource:
United States Section, International Boundary and Water Commission (USIBWC), United States and Mexico.
Notice of Availability of Final Environmental Assessment (EA) and Finding of No Significant Impact (FONSI).
Pursuant to Section 102(2)(c) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Final Regulations (40 CFR parts 1500 through 1508); and the United States Section's Operational Procedures for Implementing Section 102 of NEPA, published in the
Gilbert Anaya, Supervisory Environmental Protection Specialist; Environmental Management Division; United States Section, International Boundary and Water Commission; 4171 N. Mesa, C-100; El Paso, Texas 79902. Telephone: (915) 832-4702, e-mail:
The United States Section of the International Boundary and Water Commission (USIBWC) has prepared this Environmental Assessment (EA) for the proposed action to raise the levee system within the reach from International Dam to Riverside Diversion Dam. The levee system under consideration for this EA, approximately 15-miles long, is located entirely in El Paso County, Texas. Within this reach the USIBWC identified 8.14 miles of levee system as one of the priority areas within the Rio Grande Rectification Project for flood control improvements. The need for improvements to the levee system was determined by hydraulic modeling completed by the USIBWC in 2003. The USIBWC hydraulic study for this reach indicated that an increase in levee height would be required to meet design criteria for flood protection. An increase from 0.5 to 2.5 feet is anticipated for an approximate 8.14-mile levee segment.
The Environmental Assessment assesses potential environmental impacts of the Proposed Action and the No Action Alternative. A Finding of No Significant Impact was issued for the Proposed Action, including mitigation measures, based on a review of the facts and analyses contained in the Environmental Assessment.
FEMA decertification of USIBWC levees in El Paso County, TX and Dona Ana County, New Mexico, in February 2006, has resulted in the need to upgrade the levees to FEMA criteria; draft Digital Flood Insurance Rate Maps will be issued in spring of 2007. The USIBWC plans on raising approximately 8.14-miles of USIBWC levees within the city limits of El Paso to meet the minimum 3 feet of freeboard criteria. This will enable USIBWC to partially certify the reach from American Dam to Riverside Dam in the Rio Grande Rectification Project before the end of calendar year 2007.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 19, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Hewlett-Packard Company of Palo Alto, California. The complaint alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain personal computers and digital display devices by reason of infringement of U.S. Patent Nos. 6,691,236; 6,029,119; 5,353,415; and 6,894,706. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a permanent exclusion order and permanent cease and desist orders.
The complaint, except for any confidential information contained therein, are available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
Bryan Moore, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2767.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2006).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain personal computers and digital display devices by reason of infringement of one or more of claims 1-17 of U.S. Patent No.
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—Hewlett-Packard Company, 3000 Hanover Street, Palo Alto, California 94304.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Commission investigative attorney, party to this investigation, is Bryan Moore, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Room 401-R, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of a limited exclusion order or cease and desist order or both directed against a respondent.
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 17, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Tessera, Inc. of San Jose, California. Letters supplementing the complaint were filed on April 18 and May 4, 2007. The complaint, as supplemented, alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain semiconductor chips with minimized chip package size and products containing same by reason of infringement of U.S. Patent Nos. 5,852,326 and 6,433,419. The complaint, as supplemented, further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a permanent exclusion order and a permanent cease and desist order.
The complaint and supplements, except for any confidential information contained therein, are available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
Kecia J. Reynolds, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2580.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2006).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain semiconductor chips with minimized chip package size or products containing same by reason of infringement of one or more of claims 1, 2, 6, 12, 16-19, 21, 24-26, and 29 of U.S. Patent No. 5,852,326 and claims 1-11, 14, 15, 19, and 22-24 of U.S. Patent No. 6,433,419, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is —Tessera, Inc., 3099 Orchard Drive, San Jose, California 95134.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
STMicroelectronics N.V., 39, Chemin de Champ des Filles, 1228 Plan-Les-Ouates, Geneva, Switzerland.
(c) The Commission investigative attorney, party to this investigation, is Kecia J. Reynolds, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Robert L. Barton, Jr. is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of a limited exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
The Department of Labor (DOL) has submitted the following public information collection requests (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of each ICR, with applicable supporting documentation, may be obtained from RegInfo.gov at
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Employment Standards Administration (ESA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202-395-7316/Fax: 202-395-6974 (these are not a toll-free numbers), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• 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;
• 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;
• Enhance the quality, utility, and clarity of the information to be collected; and
• 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.
Consistent with MSPA subsections 401(b)(2)(C)-(D), the U.S. Department of Labor (DOL), Wage and Hour Division (WHD), has issued regulations setting
The WHD has created Forms WH-514, WH-514a, and WH-515, which allow FLC applicants to verify to the WHD that the vehicles used to transport migrant/seasonal agricultural workers meet the MSPA vehicle safety standards and that anyone who drives such workers meets the Act's minimum physical requirements. The WHD uses the information in deciding whether to authorize the FLC/FLCE applicant to transport/drive any migrant/seasonal agricultural workers or to cause such transportation.
Form OWCP-957 is used by OWCP and contractor bill processing staff to process reimbursement requests for travel expenses. To enable OWCP and its contractor bill processing staff to consider the appropriateness of the request in a timely fashion, it is essential that request include all of the data elements needed to evaluate the request. If all the data elements required by OWCP are not collected, the contractor staff cannot process the request for reimbursement.
Form CA 278 is used by insurance carriers and the self-insured to request reimbursement. The regulations that implement the WHCA permit OWCP to collect the information needed to consider an insurance carrier's or self-insured's reimbursement request at 20 CFR 61.101 and 61.104.
The information collected is used by OWCP staff to process requests for reimbursement of WHCA benefit payments and claims expenses submitted by insurance carriers and self-insureds. The information is also used by OWCP to decide whether it should opt to pay ongoing WHCA benefits directly to the injured worker.
Forms collect information used for determining appropriate security deposit amounts and insuring compliance with the security deposit requirements are described below.
LS-276, Application for Security Deposit Determination. Each currently authorized carrier and any carrier seeking such authorization must apply annually for a determination of the amount of security it must deposit with DLHWC by completing Form LS-276. DLHWC will use the information collected on Form LS-276 to determine the required security deposit amount for each carrier in light of the applicable state guaranty fund coverage. Regulations establishing this requirement are set forth at 20 CFR 703.2, 703.203, 703.209, 703.210, and 703.212.
LS-275 IC, Agreement and Undertaking (Insurance Carrier); LS-275 SI, Agreement and Undertaking (Self-Insured Employer). After DLHWC determines the amount of the required security deposit, the insurance carrier or self-insured employer executes Form LS-275 IC or LS-275 SI, respectively, to: (1) Report the security it has deposited and grant the Department a security interest in the collateral; (2) agree to abide by the Department's rules; and (3) authorize the Department to bring suit on any deposited indemnity bond, draw upon any deposited letters of credit, or to collect the interest and principal or sell any deposited negotiable securities when it deems it necessary to assure the carrier's or self-insurer's prompt payment of compensation and any other Longshore Act obligations it has. DLHWC reviews the information collected and verifies that the carrier or self-insurer has deposited the correct amount of security. DLHWC uses this information if it takes action on the security deposited to assure that the carrier or self-insurer meets its Longshore Act obligations. Regulations establishing these requirements are set forth at 20 CFR 703.2, 703.204, 703.205, 703.303 and 703.304.
Employment and Training Administration (ETA), Labor.
Amendment.
The Employment and Training Administration published a document in the
Donna Kelly, Grants Management Specialist, Telephone (202) 693-3934.
In the
1. On page 20877, starting in the middle column, the question “Can a National or Regional Organization Apply to Serve Multiple Urban or Rural Communities?” and its answer is now deleted from the solicitation.
The solicitation is amended to add the following question: Can I Apply For Multiple Towns in One Application? If a town is large enough to reasonably support a YouthBuild program, the grant activities should generally be focused on one town. If the applicant determines that the town is not large enough to support a YouthBuild program, it may include additional towns and provide justification for the larger service area. If multiple towns are included together in the application, applicants must limit the total requested grant amount to $1.1 million.
2. On page 20878, in the middle column, Part III. (A) Eligible Applicants, it states the following: An organization is an eligible applicant for these grants if it is a public or private nonprofit agency or organization (including a consortium of such agencies or organizations with a designated lead applicant), including:
The solicitation is amended to read: An organization is an eligible applicant for these grants if it is a public or private nonprofit agency or organization (including a consortium of such agencies or organizations with a designated lead applicant), including, but not limited to:
3. On page 20878, in the left column, under Section I.D, “What Are Allowable Uses of Grant Funds”? (13), it states the following: Equipment, and/or supplies related to the YouthBuild activities funded through this grant are an allowable use of funds.
The solicitation is amended to add the following statement: The Department of Labor interprets this to mean that the purchase of construction materials to be used for houses as part of the training for YouthBuild participants would be an allowable use of grant funds.
4. On page 20878, in the right column, Section III.C. Matching Funds and Leveraged Resources. The solicitation is amended to add the following statement: Construction materials that are acquired without grant funds and are used for houses as part of the training for YouthBuild participants may be used in fulfilling the 25 percent match requirement. The match may be cash or in-kind resources and must meet all the requirements in accordance with the applicable Federal cost principles.
5. YouthBuild “Frequently Asked Questions (FAQs)” will be posted on the Department of Labor, Employment & Training Administration, Youth Services Web site and may be accessed at
1. Proposed Rule: Section 701.2 of NCUA's Rules and Regulations, Federal Credit Union Bylaws.
2. Proposed Rule: Interpretive Ruling and Policy Statement (IRPS) 07-1, Section 701.1 of NCUA's Rules and Regulations, Amendments to NCUA's Chartering and Field of Membership Policies.
3. Final Rule: Part 701 of NCUA's Rules and Regulations, Technical Amendments.
1. Action under Section 205 of the Federal Credit Union Act. Closed pursuant to Exemptions (6), (7), and (8).
The National Endowment for the Humanities.
Notice of meetings.
Pursuant to the provisions of the Federal Advisory Committee Act (Pub. L. 92-463, as amended), notice is hereby given that the following meetings of Humanities Panels will be held at the Old Post Office, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
Heather C. Gottry, Acting Advisory Committee Management Officer, National Endowment for the Humanities, Washington, DC 20506; telephone (202) 606-8322. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the Endowment's TDD terminal on (202) 606-8282.
The proposed meetings are for the purpose of panel review, discussion, evaluation and recommendation on applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including discussion of information given in confidence to the agency by the grant applicants. Because the proposed meetings will consider information that is likely to disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential and/or information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, pursuant to authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee meetings, dated July 19, 1993, I have determined that these meetings will be closed to the public pursuant to subsections (c) (4), and (6) of section 552b of Title 5, United States Code.
1.
2.
FirstEnergy Nuclear Operating Company (FENOC or licensee) is the holder of four NRC Facility Operating Licenses issued by the U.S. Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR part 50, which authorizes the operation of the specifically named facilities in accordance with the conditions specified in each license. License No. NPF-3 was issued on April 22, 1977, to operate the Davis-Besse Nuclear Power Station (Davis-Besse). License No. NPF-58 was issued on November 13, 1986, to operate the Perry Nuclear Power Plant. Licenses No. DPR-66 and NPF-73 to operate the Beaver Valley Nuclear Plant, Units 1 and 2 were issued on July 2, 1976, and August 14,1987, respectively. The facilities are located on the licensee's properties near Toledo and Painesville, Ohio, for the Davis-Besse and Perry Plants, respectively, and near McCandless, Pennsylvania, for the Beaver Valley Nuclear Plant.
On March 8, 2004, the NRC issued a Confirmatory Order to FENOC and approved restart of the Davis-Besse Plant following substantial licensee action to evaluate and develop appropriate corrective actions for the technical and programmatic issues that were associated with the 2002 reactor pressure vessel head degradation event.
On April 21, 2005, the NRC issued a Notice of Violation and Proposed Imposition of Civil Penalties in the amount of 5,450,000 dollars involving violations associated with the 2002 Davis-Besse reactor pressure vessel head degradation event and the root causes for the event. On September 14, 2005, FENOC responded to the Notice of Violation, paid the proposed civil penalty and addressed each of the violations cited. Its response also addressed FENOC's assessment of the root cause for each violation. On January 23, 2006, FENOC provided a supplemental reply to the Notice of Violation.
FENOC obtained a report from its contractor, Exponent Failure Analysis Associates and Altran Solutions Corporations (Exponent), dated December 2006, prepared in connection with its claim against Nuclear Electric Insurance Limited (NEIL), which included an updated analysis of the timeline and root cause for the 2002 Davis-Besse reactor pressure vessel head degradation event. A significant conclusion of this analysis was a determination by Exponent that the time period between the beginning of substantial leakage from the reactor pressure vessel head nozzle causing the development of the large cavity next to the nozzle may have been as short as four months. Previously, FENOC had conducted its own technical and programmatic root cause evaluations of the event and concluded that the reactor pressure vessel head cavity was the result of ongoing nozzle leakage which had gone undetected for more than four years. FENOC also obtained a second report, dated in December 2006, from
In February 2007, NEIL sent to FENOC a letter identifying what NEIL believed to be potential safety concerns raised by the Exponent report conclusions. Upon receipt of the NEIL letter, the Davis-Besse plant staff generated a condition report in its corrective action program to document the issue.
During March 2007, the NRC held several conference calls with the Davis-Besse staff to obtain additional information regarding the licensee's assessment of the concerns raised in the NEIL letter and to understand the licensee's planned actions to address the concerns.
By letter dated April 2, 2007, the NRC requested the licensee to respond, in writing, to four questions regarding information and conclusions presented in the Exponent Report to assist the NRC in understanding the assumptions, analysis, and conclusions of the Exponent Report, and to confirm the information provided during the March 2007 conference calls.
By letter dated May 2, 2007, FENOC provided a written response to the NRC's questions. In its response, FENOC stated, among other things, that the Exponent Report set forth an informed analysis that more accurately characterizes the timeline of the reactor head degradation event based upon the use of more recently available test data in conjunction with detailed analytical modeling. FENOC's response did not indicate whether it had completed a comprehensive review of the Exponent Report relative to its previous root cause reports.
The information provided by the licensee regarding the foregoing did not provide the NRC with sufficient information to determine if FENOC had conducted a prompt and thorough review of the Exponent Report. In particular, the NRC needs additional information to determine whether FENOC conducted a timely and comprehensive analysis of the assumptions and conclusions of the Exponent Report to assess their accuracy relative to the technical and programmatic root cause reports previously developed by FENOC and an assessment of whether the NRC should have been notified regarding its conclusions. In addition, FENOC did not provide the NRC with sufficient information to determine if FENOC endorsed the conclusions of the second contractor report and, if so, the effect such positions may have regarding its earlier responses to the April 2005 enforcement actions.
In light of the foregoing, further information is needed for the Commission to determine whether an Order or other action should be taken pursuant to 10 CFR 2.202, to provide reasonable assurance that FENOC will continue to operate its licensed facilities in accordance with the terms of its licenses and the Commission's regulations; in particular, to assure that:
1. FENOC demonstrates an appropriate focus, centered on the timely and critical evaluation of information developed internally by FENOC, by its contractors, and by industry sources which may affect safety assessments of its operating nuclear fleet;
2. FENOC promptly communicates to the NRC all information that it develops, receives, or becomes aware of that has the potential to have a significant impact on public health and safety;
3. FENOC has completed a comprehensive assessment of the assumptions and conclusions of the Exponent Report and has determined whether the assumptions and conclusions are consistent with the past operational experience at the Davis-Besse Plant, the assumptions of the previous technical and non-technical root cause reports developed by FENOC as a part of its assessment of the 2002 reactor pressure vessel head degradation event; and the corrective actions developed and implemented by FENOC and relied upon by the NRC as a basis for the restart of the Davis-Besse Plant.
4. FENOC has completed a comprehensive assessment of the conclusions of its contractor's report, entitled, “Report on Reactor Pressure Vessel Wastage at the Davis-Besse Nuclear Power Plant,” and has determined whether the root cause reports and licensee event reports related to the 2002 reactor pressure vessel head degradation event and the responses to the NRC Notice of Violation and Proposed Imposition of Civil Penalties dated April 21, 2005, should be updated to ensure they are complete and accurate in all material respects.
Accordingly, pursuant to sections 161c, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.204 and 10 CFR 50.54(f), in order to determine whether your licenses should be modified, suspended or revoked, or other action should be taken, the licensee is required to submit to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, with copies to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, to the Regional Administrator, NRC Region III, 2443 Warrenville, Road, Suite 210, Lisle, IL 60532-4352 and to the Resident Inspectors, within 30 days of the date of this Demand for Information the following information, in writing, and under oath or affirmation:
A. A detailed discussion of the process used, the specific information evaluated, and the conclusions reached as a part of FENOC's assessment of the Exponent Report, upon receipt or subsequently, to determine if the Exponent Report assumptions, analyses, conclusions, or other related information, should have been reported to the NRC in a more prompt manner. Your response shall include sufficient information for the NRC to assess how FENOC evaluated the significant differences between the crack growth and leakage timelines developed in the Exponent Report and previous root cause reports.
B. A detailed discussion of the differences in assumptions, analyses, conclusions, and other related information of the Exponent Report and previous technical and programmatic root cause reports, developed following the 2002 Davis-Besse reactor pressure vessel head degradation event. Your response shall address, among other matters you believe warranted, differences between the operational experience data, such as the origin and presence of boric acid deposits and corrosion products on air coolers, radiation filters, the reactor vessel head, and other components in the containment, and the Exponent Report assumptions for these items. Your response shall also indicate if differences in the Exponent Report assumptions, analyses, information, or conclusions and previous root cause reports demonstrate a need for any new or different corrective actions relative to the 2002 Davis-Besse reactor pressure vessel head degradation event and related issues. Your response shall also address the impact on the continued effectiveness of your corrective actions.
C. With regard to the “Report on Reactor Pressure Vessel Wastage at the Davis-Besse Nuclear Power Plant,” dated December 2006, indicate if
After reviewing your response, the NRC will determine whether further action is necessary to ensure compliance with regulatory requirements.
For the Nuclear Regulatory Commission.
Office of the United States Trade Representative.
Notice and solicitation for public petition.
This notice announces that the Office of the United States Trade Representative (USTR) will receive petitions in 2007 to modify the list of products that are eligible for duty-free treatment under the GSP program, and to modify the GSP status of certain GSP beneficiary developing countries because of country practices. This notice further determines that the deadline for submission of product petitions, other than those requesting competitive need limitation (CNL) waivers, and country practice petitions for the 2007 Annual GSP Product and Country Eligibility Practices Review is 5 p.m., June 22, 2007. The deadline for submission of product petitions requesting CNL waivers is 5 p.m., November 16, 2007. The list of product petitions and country practice petitions accepted for review will be announced in the
Contact the GSP Subcommittee of the Trade Policy Staff Committee, Office of the United States Trade Representative, 1724 F Street, NW., Room F-220, Washington, DC 20508. The telephone number is (202) 395-6971, the facsimile number is (202) 395-9481, and the e-mail address is
The GSP regulations (15 CFR part 2007) provide the timetable for conducting an annual review, unless otherwise specified by
Interested parties, including foreign governments, may submit petitions to: (1) Designate additional articles as eligible for GSP benefits, including to designate articles as eligible for GSP benefits only for countries designated as least-developed beneficiary developing countries, or only for countries designated as beneficiary sub-Saharan African countries under the African Growth and Opportunity Act (AGOA); (2) withdraw, suspend or limit the application of duty-free treatment accorded under the GSP with respect to any article, either for all beneficiary developing countries, least-developed beneficiary developing countries or beneficiary sub-Saharan African countries, or for any of these countries individually; (3) waive the “competitive need limitations” for individual beneficiary developing countries with respect to specific GSP-eligible articles (these limits do not apply to either least-developed beneficiary developing countries or AGOA beneficiary sub-Saharan African countries); and (4) otherwise modify GSP coverage.
As specified in 15 CFR 2007.1, all product petitions must include a detailed description of the product and the subheading of the Harmonized Tariff Schedule of the United States (HTSUS) under which the product is classified.
Further, product petitions requesting CNL waivers for GSP-eligible articles from beneficiary developing countries that exceed the CNLs in 2007 must be filed in the 2007 Annual Review. In order to allow petitioners an opportunity to review additional 2007 U.S. import statistics, these petitions may be filed after June 22, 2007, but must be received on or before the November 16, 2007, deadline described above in order to be considered in the 2007 Annual Review. Copies will be made available for public inspection after the November 16, 2007, deadline.
Any person may also submit petitions to review the designation of any beneficiary developing country, including any least-developed beneficiary developing country, with respect to any of the designation criteria listed in sections 502(b) or 502(c) of the Trade Act (19 U.S.C. 2462(b) and (c)) (petitions to review the designation of beneficiary sub-Saharan African countries are considered in the Annual Review of the AGOA, a separate administrative process not governed by the GSP regulations). Such petitions must comply with the requirements of 15 CFR 2007.0(b).
All such submissions must conform to the GSP regulations set forth at 15 CFR part 2007, except as modified below. These regulations are reprinted in the “U.S. Generalized System of Preferences Guidebook” (February 2007) (“GSP Guidebook”), available at
Any person or party making a submission is strongly advised to review the GSP regulations. Submissions that do not provide the information required by sections 2007.0 and 2007.1 of the GSP regulations will not be accepted for review, except upon a detailed showing in the submission that the petitioner made a good faith effort to obtain the information required. Petitions with respect to waivers of the “competitive need limitations” must meet the information requirements for product addition requests in section 2007.1(c) of the GSP regulations. A model petition
In order to facilitate prompt consideration of submissions, USTR requires electronic mail (e-mail) submissions in response to this notice. Hand-delivered submissions will not be accepted. E-mail submissions should be single copy transmissions in English with the total submission including attachments not to exceed 30 pages in 12-point type and 3 megabytes as a digital file attached to an e-mail transmission. Submissions should use the following e-mail subject line: “2007 Annual GSP Review-Petition.” Documents must be submitted as either WordPerfect (“.WPD”), MSWord (“.DOC”), text (“.TXT”), or Adobe (“PDF”) file. Documents cannot be submitted as electronic image files or contain embedded images (for example, “.JPG”, “.TIF”, “.BMP”, or “.GIF”). Supporting documentation submitted as spreadsheets are acceptable as Quattro Pro or Excel, pre-formatted for printing on 8
For any document containing business confidential information submitted as an electronic attached file to an e-mail transmission, in addition to the proper marking at the top and bottom of each page as previously specified, the file name of the business confidential version should begin with the characters “BC-”, and the file name of the public version should begin with the characters “P-”. The “P-” or “BC-” should be followed by the name of the person or party (government, company, union, association, etc.) submitting the petition.
Documents not submitted in accordance with these instructions may not be considered in this review.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94-409, that the Securities and Exchange Commission will hold the following meetings during the week of May 21, 2007:
Open Meetings will be held on Wednesday, May 23, 2007 at 9 a.m., Thursday, May 24, 2007 at 9 a.m. and Friday, May 25, 2007 at 9 a.m., in the Auditorium, Room L-002. A Closed Meeting will be held on Thursday, May 24, 2007 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (4), (5), (7), (8), (9)(B), and (10) and 17 CFR 200.402(a)(3), (4), (5), (7), (8), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Atkins, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matter of the Open Meeting scheduled for Wednesday, May 23, 2007 at 9 a.m. will be:
1. The Commission will consider whether to adopt interpretive guidance for management regarding its evaluation and assessment of internal control over financial reporting. The Commission will also consider whether to adopt amendments to Exchange Act Rules 13a-15(c) and 15d-15(c) that would make it clear that an evaluation that complies with the Commission's interpretive guidance would satisfy the annual management evaluation required by those rules. In addition, the Commission will consider whether to adopt amendments to Rules 1-02(a)(2) and 2-02(f) of Regulation S-X to require the expression of a single opinion directly on the effectiveness of internal control over financial reporting by the auditor in its attestation report. Finally, the Commission will consider whether to adopt amendments to Exchange Act Rule 12b-2 and Rule 1-02 of Regulation S-X to define certain terms.
2. The Commission will consider a number of rule proposals addressing the registration and disclosure requirements for smaller companies, as well as private offerings of securities, including whether:
• To propose amendments to increase the number of companies eligible for the scaled disclosure and reporting requirements for smaller reporting companies;
• To propose amendments to expand the eligibility requirements of Form S-3 and Form F-3 to permit registration of primary offerings by companies with a public float of less than $75 million, subject to restrictions on the amount of securities sold in any one-year period;
• To propose exemptions from the registration requirements of the Securities Exchange Act of 1934 for grants of compensatory employee stock options by non-reporting companies;
• To propose a new Regulation D exemption for offers and sales of securities to a newly defined subset of “accredited investors,” as well as to propose revisions to the Regulation D
• To propose revisions to Form D and mandate electronic filing of Form D; and
• To propose amendments to Rule 144 to revise the holding period for the resale of restricted securities, simplify compliance for non-affiliates, revise the Form 144 filing thresholds, and codify certain staff interpretations, as well as to propose amendments to Rule 145.
3. The Commission will consider whether to adopt rules to implement provisions of the Credit Rating Agency Reform Act of 2006.
The subject matter of the Open Meeting scheduled for Thursday, May 24, 2007 at 9 a.m. will be:
The Commission will hold a roundtable discussion regarding proxy voting mechanics.
The subject matter of the Closed Meeting scheduled for Thursday, May 24, 2007 at 2 p.m. will be.
Formal orders of investigations;
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings of an enforcement nature;
Resolution of litigation claims;
Regulatory matter regarding a financial institution; and
Other matters related to enforcement proceedings.
The subject matter of the Open Meeting scheduled for Friday, May 25, 2007 at 9 a.m. will be:
The Commission will hold a roundtable discussion regarding proposals of shareholders.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to adopt changes to Rule 205—AEMI in order to change the method by which specialists on the Exchange execute odd-lot market orders.
The text of the proposed rule change is available on Amex's Web site at
In its filing with the Commission, Amex 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. Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is currently operating, and has adopted rules in connection with the operation of, its new hybrid market trading platform for equity products and exchange-traded funds, designated as AEMI
Rule 205—AEMI(b)(i)-(iii) currently requires the specialist to execute a market odd-lot order at the price of a subsequent round-lot execution that occurs in the subject security on the Exchange for 30 seconds after the odd-lot order is entered. However, a market odd-lot order is executed at this round-lot price only to the extent that there are a sufficient number of shares subsequently transacted in round-lots on the Exchange within that 30 second window to match any imbalance between the pending odd-lot market buy and sell orders. If there are an insufficient number of shares in round-lot executions within that 30 seconds from which to benchmark the market odd-lot execution price of the imbalance, Rule 205—AEMI(b)(iv) dictates that the NBBO be used as the default price at which the specialist is required to execute.
• Sell/buy an equal number of shares on each side of the odd-lot market at $10, which clears the 1,500 shares of odd-lot market buy orders and
• In response to the remaining 2,000 shares of odd-lot market sell orders, buy a maximum of 500 shares at $10 because that is the total size of subsequent round-lot transactions within the 30-second window. (This assumes that the remaining odd-lot sell orders with greatest time priority total 500 shares exactly. If a partial execution would result by stopping the specialist from buying at $10 once the 500 share threshold was reached, then the specialist could buy more than 500 shares at $10 so as to permit execution in full of the last odd-lot order at that price.
• At the expiration of 30 seconds, purchase the 1,500 shares remaining from the odd-lot sell orders at $10.50 (the NBB), even though the NBB was for only 100 shares and might not reflect the price at which the specialist would or should otherwise be willing to purchase 1,500 shares.
It has become apparent to the Exchange that the current version of Rule 205—AEMI (insofar as it forces the specialist to execute any unexecuted imbalance in odd-lot orders at the NBBO) provides too much opportunity for manipulation to the detriment of both the specialists and accuracy in pricing. In practice, the Exchange has recently observed a high number of odd-lot market orders in less liquid securities and believes that this is a direct result of the rule's guarantee of execution at the NBBO irrespective of whether the size or timeliness of the NBBO is comparable to those of the odd-lot orders on the Exchange. The Exchange is concerned that off-floor participants may be breaking up larger round-lots into multiple odd-lots to take advantage of NBBO pricing on the Exchange where such pricing would be unattainable if the larger orders were submitted and price discovery was possible. This behavior would violate Exchange rules
When a person gives, either for his own account, for various accounts in which he has an actual monetary interest, or for accounts over which such person is exercising investment discretion, buy or sell odd-lot orders which aggregate one or more round-lots, a member or member organization shall not accept such orders for execution unless they are, as far as possible, consolidated into round-lots, except that selling orders marked “long” or “short exempt” need not be so consolidated with selling orders marked “short.”
• Assume that an illiquid security has an average daily volume of 15,000 shares. Assume also that the NBBO is $5.00 bid for 100 shares on NASDAQ and 500 shares offered at $5.10 on NYSE. The liquidity around the NBBO is very thin, and no round-lot executions have taken place over the last four hours, during which period Amex nonetheless receives many odd-lot market orders. In accordance with Rule 205—AEMI, each odd-lot order is executed after 30 seconds against the specialist at the NBBO automatically, although the specialist is not quoting at the NBBO, the NBBO has not changed, and no round-lot trades have occurred in the marketplace. Over the course of the four hours, the specialist is forced to purchase an aggregate of 10,553 shares in odd-lots, each at a price of $5.00, even though grossly disproportionate to the 100 share order size connected to the $5.00 NBB, the overall activity in the marketplace, and the likely lower value at which an equivalent aggregate volume of round lots would have transacted in such an illiquid market. As such, the specialist is forced to bear an inappropriate amount of risk of loss as odd-lot dealer because, rather than price discovery being permitted to occur as would occur with round-lot quotes, the specialist is forced to purchase all of the odd-lots at the stale NBBO price.
• Assume a very highly-priced thinly-traded security with an NBBO of 100 shares bid for $800 on NASDAQ and 100 shares offered at $806 on NYSE. Because of the high price of the shares, round-lot executions are infrequent and no round-lot executions have taken place on Amex over the last four hours. Nonetheless, Amex receives multiple odd-lot market sale orders aggregating 367 shares over that time period. In accordance with Rule 205—AEMI, each odd-lot order is executed after 30 seconds against the specialist at $800, and, over the course of the four hours, the specialist is forced to purchase an aggregate of 367 shares in odd-lots at $800 per share for $293,600. Because of the high stock price, the absence of price discovery amplifies the costs to the specialist in the event of disparity between the stale NBBO and the true value of the security. Had the mandatory $800 bid been reduced by a mere 0.5% (to $796)—to reflect what a hypothetical reasonable investor would pay for a thinly-traded $800 security with an imbalance of sell interest in the market—the aggregate outlay would be $1468 less.
As described above, the Exchange believes that the way odd-lot market orders are currently being executed today (only insofar as the NBBO price is imposed under Rule 205—AEMI(b)(i)-(iv) as a default price upon the specialists in the absence of a sufficient number of round-lot order executions on the Exchange within 30 seconds of each odd-lot market order) is inconsistent with the specialists' obligations to quote and maintain a fair and orderly market. Moreover, odd-lot orders are not subject to the Limit Order Display Rule
The Exchange believes that this proposal properly balances a more reasonable level of risk exposure for the specialists with their obligation to trade odd lots and deliver timely executions to investors. In particular, the proposal would permit price discovery to occur (via programmed automated adjustments flowing from executions against the specialist's quote) while still requiring the specialist to provide timely executions of odd-lot market orders. As such, executions of odd lots on the Exchange will be more likely to occur at prices which reflect the most current market conditions. In this regard, the Exchange points out that specialists are specifically required by Exchange rules to formulate quotes to avoid wide swings in the pricing of prior and subsequent transactions,
The proposed rule change would result in the following textual changes in Rule 205—AEMI:
• Substitution of the words “specialist's best bid” and “specialist's best offer” for “qualified national best bid” and “qualified national best offer” where such terms appear in the rule.
• Removal of Commentary .04 to the rule, which deals solely with explaining the definition of “qualified national best bid or offer,” which will no longer be relevant to Rule 205—AEMI.
The proposed rule change is designed to be consistent with Section 6(b) of the Act,
The proposed rule change does not 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.
Because the proposed rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) have the effect of limiting the access to or availability of an existing order entry or trading system of the Exchange, the foregoing rule change has become effective immediately 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 at
• 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-Amex-2007-47. 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 March 5, 2007, the International Securities Exchange, LLC (“ISE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Currently, the ISE provides information regarding the quantity of public customer contracts at the ISE's best bid and best offer (“BBO”) only to Primary Market Makers (“PMMs”). The ISE proposes to adopt ISE Rule 713, Supplementary Material .04, to allow the ISE to make such information available to all ISE members. According to the ISE, the Chicago Board Options Exchange (“CBOE”) currently provides its members with information regarding customer interest at the CBOE's BBO. The ISE believes that it is necessary to provide its members with similar information to remain competitive with the CBOE. In addition, the ISE notes that the information would allow an ISE member to know the number of customer contracts it would need to satisfy before the member could cross a large block-sized order. The ISE believes that such information is particularly useful for members seeking to execute larger-sized orders through the ISE's block and facilitation mechanisms.
In addition, the proposal corrects several cross-references in ISE Rule 713(a).
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.
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 Exchange proposes to amend its Rule 13 (Definitions of Orders) to establish the new order type called Do Not Ship (“DNS”). The text of the proposed rule change is available at the Exchange, on the Exchange'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 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 is amending Rule 13 to adopt a Do Not Ship, or “DNS,” order. A DNS order will be a limit order to buy or sell that is to be quoted and/or executed in whole or in part only on the Exchange. In the event the order would require routing to another market center pursuant to Exchange rules or federal securities laws, it would be immediately cancelled by Exchange systems.
The proposed DNS order provides an alternative for market participants who are seeking to have their order quoted and executed solely on the Exchange. The Exchange states that the DNS order provides the market participant with control over execution costs and where the order will be handled.
Regulation National Market System (“Reg. NMS”) requires, among other things, that with limited exceptions, trading centers have policies and procedures reasonably designed to prevent the execution of trades at prices inferior to protected quotations displayed by other market centers.
Similarly, a market participant who desires to have its order executed in whole or in part solely on the Exchange will also benefit from the DNS order which, by its terms, will immediately and automatically cancel if it is required to be routed away to another market center.
Generally, a DNS order can quote and trade on the Exchange. Where the bid or offer on the Exchange matches the bid or offer at another market center, an incoming DNS order that is eligible to quote and trade will do so first at the Exchange. However, if quoting the DNS order will cause the locking or crossing
The Commission has previously approved the use of order types substantially similar to the DNS on other exchanges.
The Exchange believes that the proposed rule change is consistent with the requirement under Section 6(b)(5) of the Act
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.
Because the foregoing 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 on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
NYSE has requested that the Commission waive the 30-day operative delay.
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-NYSE-2007-24. 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” or “Exchange Act”)
The Exchange proposes new Rule 350A (“Business Entertainment”) to address conflict of interest issues in connection with the provision of business entertainment by member organizations to representatives of customers or prospective customers. Below is the text of the proposed rule change. Proposed new language is italicized.
In its filing with the Commission, NYSE 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, and the most significant aspects of such statements are set forth in Sections A, B, and C below.
The Exchange is proposing new Rule 350A (“Business Entertainment” or the “Rule”) to address conflict of interest issues in connection with the provision of business entertainment by member organizations to representatives of customers or prospective customers. Specifically, the proposed rule addresses the concern that customer representatives' decisions to direct business (
The Exchange has worked closely with industry representatives and the NASD to develop a substantially uniform industry business entertainment standard to address the potential for such conflicts of interest. The Exchange initially contemplated a strictly prescriptive approach that established specific quantitative dollar standards for all broker-dealers. However, for the reasons discussed in detail below, such an approach was ultimately deemed impracticable as it neither reasonably addressed the regulatory issue in question nor the business realities of Exchange membership. In light of the practical difficulties associated with the imposition of a single quantitative standard across the spectrum of broker-dealer business models, the proposed rule takes a more principle-based approach with flexible prescriptive elements and guidelines.
In attempting to codify business entertainment guidelines, the Exchange was faced with developing an approach that addresses regulatory concerns, is practical, and does not unreasonably nor unduly interfere with broker-dealers' legitimate commercial and business relationships. The primary merit of adopting a strictly prescriptive approach with fixed dollar limits is that it provides bright line standards that, arguably, could facilitate industry compliance. However, imposing a fixed dollar standard is not without practical problems. For example, it does not take into account regional differences—which is to say that what might be considered “lavish” or “excessive” in one city might not necessarily be deemed so in another. Further, what might be considered appropriate entertainment for an investment banking/institutional client base might be considered lavish and/or excessive in a retail customer context.
Since terms such as “lavish” or “excessive” can be subjective and standards of appropriateness may vary
Further, a uniform standard would give rise to unintended effects related to firm participation in, or sponsorship of, charitable events. There is also frequent linkage between education and entertainment that would likely become problematic. In many instances, firms combine legitimate educational functions with lodging, meals and entertainment, making it difficult to separate business expenses from entertainment expenses under a prescriptive regulatory scheme.
Thus, the Exchange is proposing a more flexible, principle-based approach that would require each firm to develop, within a prescribed regulatory framework, standards that are effective and appropriate for its business model that would be administered via procedures that are transparent and well documented.
Subsection (a) of proposed Rule 350A imposes the general prohibition that “no member organization or person associated with a member organization shall, directly or indirectly, provide any business entertainment to a customer representative pursuant to the establishment of, or during the course of, a business relationship with any customer that is intended or designed to cause, or would be reasonably judged to have the likely effect of causing, such customer representative to act in a manner that is inconsistent with: (1) The best interests of the customer or (2) the best interests of any person to whom the customer owes a fiduciary duty.”
The general nature of this prohibition recognizes that no rule of this type can identify and specifically address each and every potential conflict-of-interest scenario that may arise. Note, however, that the prohibition against provision of entertainment “directly or indirectly” is intended to prevent circumvention of the spirit of the rule. For instance, it would be a violation of the Rule if an associated person of a member organization were to either utilize his or her personal funds in an effort to evade the dictates of the Rule, or to encourage an employee of a member organization subsidiary to provide entertainment on behalf of the member organization. Note also that the purpose of the proposed Rule is to address customer representative conflicts of interest that could adversely affect the customer. The Rule would not apply to business entertainment provided by an associated person directly to individual (natural person) customers or potential customers.
Proposed Rule 350A(b) defines the terms “customer,” “customer representative” and “business entertainment” as follows:
The term “customer” means “(1) A person
The term “customer representative” means “a person who is an employee, officer, director, or agent of a customer, unless such person is a family member
The
The terms “person associated with a member organization” or “associated person” are defined to include: (1) A natural person who is registered or has applied for registration under the Rules of the NYSE; (2) a sole proprietor, partner, officer, director, or branch manager of a member organization, or other natural person occupying a similar status or performing similar functions, or a natural person engaged in the investment banking or securities business who is directly or indirectly controlling or controlled by a member organization, whether or not any such person is registered or exempt from registration with the NYSE or NASD.
The Exchange has been asked about the extent to which the proposed rule change reaches business entertainment conducted outside the United States, particularly entertainment provided by persons who are employed in commonly controlled affiliates of a financial services company operating in the United States and/or foreign jurisdictions. As an initial matter, proposed Rule 350A reaches all business entertainment of a member organization and persons associated with a member organization, even if such entertainment occurs outside of the United States or is provided to foreign individuals. However, the Exchange does not believe that all persons who are employed in commonly controlled affiliates of a financial services company operating in the United States and/or foreign jurisdictions are necessarily associated persons of the member organization, even if they report to a person who, in
An associated person of a member organization may have management and supervisory responsibilities for non-member affiliates of a financial services company, located within or outside of the United States, without the result that the persons being managed and supervised in the non-member affiliates would necessarily be deemed associated persons of the member organization. It is the view of the Exchange that in such instances the following factors establish that an employee of a non-member affiliate is not an associated person of the member organization: (1) The manager/supervisor of that employee is recognized in the member organization as having a scope of responsibilities outside of the member organization; (2) the exercise of the management and supervision over that employee by such manager/supervisor is not controlled by the member organization, is reviewable for purposes of performance and compensation outside of the member organization, and is not conducted for the benefit of the member organization; and (3) the employee of the non-member affiliate is not otherwise employed or engaged in the investment banking or securities business of the member organization or controlled by the member organization in respect of such activities.
Any term not specifically defined in Rule 350A shall have the meaning ascribed to it as otherwise defined or understood within the rules of the Exchange and the interpretations thereof.
As noted above, the definition of “business entertainment” generally prescribes that if a customer representative is not accompanied by an appropriate associated person of the member organization, any expenses associated with the business entertainment will be considered a gift under NYSE Rule 350. An exception to this requirement is proposed to address instances when exigent circumstances make it impractical for an associated person to attend a business entertainment event.
The Exchange believes that the “exigent circumstances” exception provides necessary flexibility in light of real-world, last minute emergency situations that could arise that would make it difficult, if not impossible, for an appropriate member organization associated person to attend a business entertainment event with a customer representative. Examples of exigent circumstances would be a sick child, an accident, or some other sudden overriding circumstance. The Exchange does not believe this provision would lead to circumvention of the spirit or substance of the proposed rule since all such occurrences are subject to detailed documentation such that any patterns of abuse would become quickly apparent to supervisory personnel.
Pursuant to the general directive of proposed Rule 350A(a), Rule 350A(c) would require that each member organization have written policies and supervisory procedures applicable to business entertainment that incorporate prescribed elements. The following prescribed elements, outlined under subsection (c)(1), are applicable to all member organizations except those with business expenses below $7,500, which are subject only to subsection (c)(1)(D) and (c)(1)(E):
(A) The policies and procedures must define forms of business entertainment that are “appropriate” and “inappropriate,” using quantitative and/or qualitative standards that address the nature and frequency of the entertainment provided, as well as the type and class of any accommodations or transportation provided in connection with such business entertainment. This provision recognizes that, in order to establish meaningful standards that are enforceable, firms must have objective bases upon which to determine the appropriateness of business entertainment. It also recognizes that, given the wide range of broker-dealer business models, it is impractical to require a single, industry-wide set of standards. Further, by placing the responsibility on firm personnel to develop firm-specific standards has the benefit of fostering internal discussion and serious consideration of issues related to the provision of business entertainment in both an ethical and practical context.
(B) The policies and procedures must make clear that anything of value given or otherwise provided to a customer representative that does not fall within the definition of “business entertainment” is a gift under NYSE Rule 350.
(C) The policies and procedures must impose either specific dollar limits on business entertainment or require prior written supervisory approval when such entertainment expenses will exceed certain specified dollar thresholds. This provision would require firms to make objective, “hard number” value determinations regarding generally acceptable levels of business entertainment. Not only would this approach have the benefit of establishing unambiguous standards, it would also encourage the self-comparison of such standards among firms of similar size and circumstance. This, in conjunction with feedback from regulatory organizations, would likely result in the establishment of “unofficial,” but generally accepted industry standards over time.
(D) The policies and procedures must be designed to detect and prevent business entertainment that is intended as, or could reasonably be perceived to be intended as, an improper quid pro quo or that could otherwise give rise to a potential conflict of interest, or undermine the performance of a customer representative's duty to a customer or to any person to whom the customer owes a fiduciary duty. In addition to highlighting the core purpose of the Rule, this provision is intended to make clear that member organizations are expected to take a proactive approach with respect to potential violations of their business entertainment policy.
(E) The policies and procedures must establish standards to ensure that persons designated to supervise and administer the written policies and procedures are sufficiently qualified. Since the Rule does not prescribe exam qualifications or other standardized qualification requirements for supervisors or administrators of business entertainment policies and procedures, member organizations must formalize a process to ensure that informed determinations are made with regard to the ability of persons assigned such responsibilities.
(F) The policies and procedures must provide appropriate education and training to all personnel who supervise, administer, or are subject to the written policies and procedures prescribed by the proposed Rule. This provision is intended to ensure that all relevant personnel are familiar with, and have a clear understanding of, the firm's business entertainment policies and procedures. Such education and training could be provided as part of the “Firm Element” requirement of NYSE Rule 345A (“Continuing Education for Registered Persons”).
In addition to the above requirements, the proposed Rule
In order to ensure that expenses can be tracked and analyzed for potential improprieties, proposed Rule 350A(d) makes clear that each member organization's written policies and procedures must require maintenance of detailed records of business entertainment expense provided to any customer representative. Further, such policies and procedures must require that, upon a customer's written request, each member organization will promptly make available to a customer any records regarding business entertainment provided to customer representatives of that customer.
However, in order not to impose an undue regulatory burden, the proposed Rule includes an exemption to the recordkeeping requirement for de minimis or incidental expenses that would not reasonably be expected to influence the behavior of a customer representative. Specifically, records would not be required to be maintained for:
(1) Business entertainment when its total value, including all associated expenses, does not exceed $50 per day (such as a $45 dinner, or an inexpensive dinner and movie which, in the aggregate, cost less than $50); or
(2) Additional expenses incurred in connection with otherwise recorded business entertainment that do not, in the aggregate, exceed $50 per day (such as a hot dog and soda purchased at a professional sporting event where the cost of the ticket—presuming it is greater than $50—has been duly recorded as a business entertainment expense).
Each member organization's written policies and procedures must include provisions reasonably designed to prevent member organization associated persons from circumventing the recordkeeping requirements in contravention of the spirit and purpose of this rule (
As discussed more fully below, the recordkeeping requirements of proposed Rule 350A(d) shall not apply to member organizations with annual business entertainment expenses below $7,500.
The definition of the term “business entertainment” states that each member organization's written policies and procedures must specify the methodology to be used by the member organization to calculate the value of business entertainment.
Proposed Rule 350A(e) requires that each member organization's written policies and procedures provide that, upon a customer's written request, the member organization will promptly make available to the customer any business entertainment records regarding business entertainment provided any customer representative of that customer. Further, each member organization must have a system in place to give notice (
Subsection (f)(1) makes clear that the proposed Rule does not apply to any member organization that does not engage in business entertainment. Thus, for example, if a member organization provides no business entertainment as defined by the proposed Rule, it would not be required to establish otherwise applicable policies and procedures. This subsection further clarifies that the proposed rule applies only with respect to business entertainment provided to customer representatives. Thus, as noted above, it would not be applicable to situations where a member organization directly provides business entertainment to natural person customers or potential natural person customers.
The concerns that the proposed rule seek to address are not presented by those member organizations that, in the aggregate, do not devote significant resources to business entertainment. Consequently, the proposed rule provides for a partial exemption, under subsection (f)(2), for those member organizations with annual business entertainment expenses below $7,500.
Specifically, member organizations below the $7,500 threshold would be exempt from the written “Policies and Procedures” provisions of proposed Rule 350A(c)(1) except for subsections (D) and (E). Subsection (D) requires written policies and procedures to detect and prevent business entertainment that is intended as, or could reasonably be perceived to be intended as, an improper quid pro quo or that could otherwise give rise to a potential conflict of interest, or undermine the performance of a customer representative's duty to a customer or to any person to whom the customer owes a fiduciary duty. Subsection (E) requires the establishment of standards to ensure that persons designated to supervise and administer the written policies and procedures are sufficiently qualified.
Member organizations below the $7,500 threshold would also be exempt from the prescribed recordkeeping provisions of proposed Rule 350A(d). As noted above, however, member organizations must be able to evidence that its business entertainment expenses were below the threshold over the course of their fiscal year.
In addition, member organizations below the $7,500 threshold would be exempt from the requirement, under Rule 350A(e) to have a system in place to give notice (
Note that member organizations that avail themselves of the specified exemptions under proposed subsection (f)(2) would still be fully subject to proposed Rule 350A(a) which imposes the general prohibition that “no member organization or person associated with a member organization shall, directly or indirectly, provide any business entertainment to a customer representative pursuant to the establishment of, or during the course of, a business relationship with any customer that is intended or designed to cause, or would be reasonably judged to have the likely effect of causing, such customer representative to act in a manner that is inconsistent with: (1) The best interests of the customer or (2) the best interests of any person to whom the customer owes a fiduciary duty.”
As discussed above, required written policies and procedures addressing business entertainment must include criteria that the member organization will utilize to evaluate the propriety of business entertainment in various contexts. Although not included in the Rule text itself, the Exchange intends to include in an Information Memo released in conjunction with the approval of proposed Rule 350A the following factors to be considered when establishing such criteria:
(a) Whether the nature, cost, or extent of the entertainment could reasonably give rise to an actual or perceived conflict of interest, or encourage a quid pro quo business transaction;
(b) Whether the nature, cost, and extent of the entertainment is consistent with the nature of the business relationship and the relationship of the parties involved;
(c) Whether the provision of any transportation, lodging, or other accommodations is appropriate;
(d) Whether the entertainment would be considered usual and customary within the industry;
(e) Whether the cost of the entertainment is consistent with the location (city and/or establishment) in which the entertainment takes place;
(f) Whether the entertainment extends to the client's spouse or to guests of the client;
(g) Whether the entertainment might otherwise reasonably be perceived to be improper.
(a) Whether the recipient of the entertainment has fiduciary duties (
(b) The frequency of entertainment provided to the client;
(c) The frequency of firm contact with the client in the ordinary course of business.
(a) Whether the entertainment is in recognition of a completed deal;
(b) Whether the entertainment is educational/philanthropic in nature, or strictly recreational.
In closing, the Exchange believes that the proposed Rule is an effective and practical approach to address the conflict-of-interest issues related to business entertainment, therefore approval of the proposal is requested. The Exchange further requests an effective date of 6 months from approval in order to give membership sufficient time to sufficiently upgrade systems and develop procedures to effectively comply with the Rule's requirements. The Exchange will announce the effective date in an Information Memo.
The proposed rule change is consistent with Section 6 of the Act,
The Exchange does not believe that the proposed rule change would 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.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
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.
The Commission notes that the NYSE's proposed Rule 350A(e) provides that the NYSE member organization must have a system in place to give notice (
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.
The Social Security Administration (SSA) publishes a list of information collection packages that will require clearance by the Office of Management and Budget (OMB) in compliance with Pub. L. 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. The information collection packages that may be included in this notice are for new information collections, approval of existing information collections, revisions to OMB-approved information collections, and extensions (no change) of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and on ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Written comments and recommendations regarding the information collection(s) should be submitted to the OMB Desk Officer and the SSA Reports Clearance Officer. The information can be mailed, faxed or e-mailed to the individuals at the addresses and fax numbers listed below:
I. The information collections listed below are pending at SSA and will be submitted to OMB within 60 days from the date of this notice. Therefore, your comments should be submitted to SSA within 60 days from the date of this publication. You can obtain copies of the collection instruments by calling the SSA Reports Clearance Officer at 410-965-0454 or by writing to the address listed above.
Section 5 U.S.C. 552a, (e)(10) of the Privacy Act of 1974 requires agencies to establish appropriate administrative, technical, and physical safeguards to ensure the security and confidentiality of records. Also, Section (f)(2) & (3) requires agencies to establish requirements for identifying an individual who requests a record or information pertaining to that individual and to establish procedures for disclosure of personal information. SSA promulgated Privacy Act rules in the Code of Federal Regulations, Subpart B. Procedures for verifying identity are at 20 CFR 401.45.
The eData Services Web site allows various external organizations to submit files to a variety of SSA systems and in some cases receive return files. The users include State/local government agencies, other Federal agencies, and some nongovernmental business entities. The SSA systems that process data transferred via eData include, but are not limited to, systems responsible for disability processing and benefit determination or termination. The information collected on form SSA-118 (Government to Government Services Online Web site Registration Form) to register organizations is used exclusively to maintain the identity of the requester within eData. The requestor is already a known entity to a sponsor within SSA. The SSA sponsor completes the registration forms and the information is submitted to SSA's User Interface Team (UIT). Once this is completed, SSA provides the requestor
Section 202(q) of the Social Security Act provides for the authority to reduce benefits under certain conditions when elected by a beneficiary. However, reduced benefits are not payable to an already entitled spouse (or divorced spouse) who:
• Is at least age 62 and under full retirement age in the month of the number holder's death; and
• Is receiving both reduced spouse's (or divorced spouse's) benefits and either retirement or disability benefits in the month before the month of the number holder's death.
In order to elect reduced widow(er) benefits, a beneficiary must complete form SSA-4111. SSA uses the information collected on Form SSA-4111 to determine eligibility for and pay a qualified dually entitled widow(er) (or surviving divorced spouse) reduced benefits. The respondents are qualified dually entitled widow(er)s (or surviving divorced spouse) who elect to receive a reduced widow(er) benefit.
Through the information obtained from this study, the Agency hopes to obtain data that will allow benefit award processes to be streamlined in anticipation of the significant workload increases as the “baby boomers” (those persons born between 1946 and 1964) attain retirement age. The information collected will be used to determine the extent to which a claimant's allegation of date of birth agrees with the date of birth in SSA's records and to estimate the program costs associated with using alleged dates of birth as proof of age (POA) to adjudicate claims without obtaining birth certificates or other evidence of age or citizenship.
SSA will mail up to 3,000 appointment letters to a random sample of number holders (NH) with the expectation of being able to arrange 2,000 one-time telephone interviews. (Some letters will be returned for no address or there will be no response from the NHs.)
Appointment letters will be sent to the NHs to explain the purpose of the study; request a phone number; and establish a convenient time to conduct the phone interview.
The phone interviewers will obtain an alleged date of birth, place of birth, and parent's names. If the NH's alleged date of birth agrees with the Numident date of birth, SSA will obtain POA (birth certificates if available) from the custodians to determine the impact of using the alleged date as POA. If the alleged date of birth is materially different than the date of birth on the Numident, POA evidence will not be obtained from the custodian. If a birth certificate is obtained a proof code will be annotated to the Numident to prevent unnecessary development if subsequently a claim is filed on the account. If the POA development establishes a different date of birth than the Numident/alleged date of birth, SSA will estimate the potential error dollars involved. Study data will be compiled and findings reported to SSA's Executive Staff.
II. The information collections listed below have been submitted to OMB for clearance. Your comments on the information collections would be most useful if received by OMB and SSA within 30 days from the date of this publication. You can obtain a copy of the OMB clearance packages by calling the SSA Reports Clearance Officer at 410-965-0454 or by writing to the address listed above.
SSI recipients are required to report changes in their income, resources and living arrangements that may affect eligibility or payment amount. Currently, SSI recipients report changes on Form SSA-8150, Reporting Events—SSI, or to an SSA teleservice representative through SSA's toll-free telephone number, or they visit their local Social Security office.
Wages have, historically, been the source of SSI's highest error rate largely due to non-reporting by beneficiaries, deemors, and representative payees. Failure to report changes in wages timely accounts for approximately $400 million in overpayments each year. Consequently, SSA is evaluating methods for increasing reporting. SSA has tested and determined that given an easily accessible automated format, individuals will increase compliance with reporting responsibilities. Increased timely reporting has resulted in a decrease in improper payments. One of the methods tested, described below, is the SSI Wage Reporting System.
Participants who need to report a change in monthly wages (Comment: There are other forms of earned income that the phone line does not support) will call SSA's toll-free telephone number to report the change. The participants will access SSA's system using knowledge-based authentication (providing name, SSN and date of birth). Participants will speak their report (voice recognition technology) and/or key in the information using the telephone key pad. This automated system will then directly update our records and issue receipts in compliance with Section 202 of the Social Security Protection Act of 2004.
We are requesting permanent authorization of the existing wage reporting system to continue providing an alternative, and more efficient, means by which beneficiaries, their representative payees, and deemors can report wages via a toll-free telephone number. We believe this permanent authorization is necessary to effectively implement national usage of the system and substantially increase the number of reports received via this collection method. Without permanent authorization, we are concerned that an interruption in reporting would prove detrimental to our earlier efforts to recruit and train reporters, would damage the current regularity of reporting, and would considerably mitigate SSA's potential to reduce improper payments resulting from erroneous, or deficient, wage reports. Respondents to this collection are SSI recipients, deemors and representative payees of recipients who agree to participate in the program.
The Social Security Administration (SSA) is responsible for administering two cash benefit programs, notably the Old-Age, Survivors, and Disability Insurance (OASDI) and SSI programs. To carry out this task, SSA maintains a number of files with detailed information on individuals and their characteristics, such as demographics, employment, earnings, assets, disability diagnosis, location, and other information. While designed for SSA to carry out its administrative tasks, the data files offer great informational depth to researchers interested in SSA's programs and other research areas. As a result, SSA provides qualified researchers needing agency administrative data for a variety of projects.
SSA's data files are governed by strict confidentiality restrictions and are not publicly accessible. Therefore, SSA has charged the Office of Research, Evaluation, and Statistics (ORES) as the primary interface for researchers, either within SSA or outside of it, who seek access to SSA's program files. To safeguard the information and the public trust, ORES has established comprehensive unified application process procedures for obtaining program data for research use.
To request SSA program data for research, the researcher must submit a completed research application for SSA's evaluation. In the application, the requesting researcher must provide required basic project information and describe the way in which the proposed project will further SSA's mission to promote the economic security of the nation's people through its administration of the OASDI programs, and/or the SSI program. Depending on the type of research data needed, the requesting researchers may be required to provide SSA with up to 14 prescribed project information elements to properly assess their data request.
Once the application is reviewed and approved by ORES, a Reimbursable Conditions of Use Agreement is signed with the requestor which outlines the conditions and safeguards agreed to for the research project data exchange. The requestor may use the data for research and statistical purposes only. This is a reimbursable service and SSA recovers all expenses incurred in providing this information. The respondents to this information collection are the qualified researchers that request SSA administrative data for a variety of projects. These applicants include but are not limited to Federal and State government agencies and/or their contractors, private entities, and colleges/universities.
The total average annual cost for all respondents to use this service is approximately $112,500 or an average of $7,500 to complete a single request. This cost projection is an estimate of SSA's administrative and systems costs to analyze and provide the requested research data. Since this is a reimbursable service, all associated costs are borne by the requesters.
If the claimant, his or her court appointed representative, or a parent of a minor child wants the consultative examination (CE) report sent to the claimant's treating physician, he or she will complete the information requested on Form SSA-91 and send it to SSA for processing. SSA will use the information collected to send the CE report to the authorized physician. Respondents are applicants for disability claims.
The claimants have the right to be reimbursed for their travel expenses to and from a consultative examination (CE). In order to be reimbursed, the claimants must submit an itemized list of what they spent to travel round trip to the CE. The SSA-104 is sent to the claimants with the CE appointment notice. If the claimants want to be reimbursed for their travel expenses, they must complete, sign and return the SSA-104 to SSA. SSA uses the information collected on this form to determine the amount of reimbursement. Respondents are applicants for disability claims.
The Social Security Administration (SSA) publishes a list of information collection packages that will require clearance by the Office of Management and Budget (OMB) in compliance with Pub. L. 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. The information collection packages that included in this notice are for new information collections and revisions to existing OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and on ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Written comments and recommendations regarding the information collection(s) should be submitted to the OMB Desk Officer and the SSA Reports Clearance Officer. The information can be mailed, faxed or emailed to the individuals at the addresses and fax numbers listed below:
I. The information collection listed below is pending at SSA and will be submitted to OMB within 60 days from the date of this notice. Therefore, your comments should be submitted to SSA within 60 days from the date of this publication. You can obtain copies of the collection instrument by calling the SSA Reports Clearance Officer at 410-965-0454 or by writing to the address listed above.
II. The information collection listed below has been submitted to OMB for clearance. Your comments on the information collection would be most useful if received by OMB and SSA within 30 days from the date of this
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
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The Department will accept comments from the public up to 60 days from May 21, 2007.
You may submit comments by any of the following methods:
• E-mail:
• Mail (paper, disk, or CD-ROM submissions): Chief, Legislation and Regulation Division, Visa Services—DS-156 Reauthorization, 2401 E Street, NW., Washington DC 20520-30106.
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 Lauren Prosnik 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) 663-2951 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.
Form DS-156 is completed by aliens seeking nonimmigrant visas to the U.S. The Department will use the DS-156 to elicit information necessary to determine an applicant's visa eligibility.
The DS-156 is completed by applicants online or, in exceptional circumstances, applicants may submit a paper application to posts abroad. The applicant prints the application and a 2-D barcode. When the applicant appears at the interview the barcode is scanned and the information electronically received.
Pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2781), and Executive Order 11958, as amended, I hereby determine and certify to the Congress that the following countries are not cooperating fully with United States antiterrorism efforts: Cuba, Iran, North Korea, Syria, Venezuela.
This determination and certification shall be transmitted to the Congress and published in the
By virtue of the authority vested in me as Secretary of State by the laws of the United States, including the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2151
Any authority of function covered by this delegation of authority may also be exercised by the Secretary or the Deputy Secretary.
Any act, executive order, regulation, or procedure subject to or affected by, this delegation of authority shall be deemed to be such act, executive order, regulation, or procedure as amended from time to time.
This delegation of authority shall expire upon the designation of an individual to serve as the Director of Foreign Assistance.
This delegation of authority shall be published in the
By virtue of the authority vested in me as Secretary of State by the laws of the United States, including, Section 1 of the State Departments Basic Authorities Act. As amended (22 U.S.C. 2651a), I hereby delegate to Maura A. Harty, to the extent authorized by law, all authorities that have been or may be delegated to the Under Secretary for Management.
Any authority covered by this delegation may also be exercised by the Secretary, the Deputy Secretary, or the Under Secretary for Management.
Any act, executive order, regulation, or procedure subject to or affected by, this delegation of authority shall be deemed to be such act, executive order, regulation, or procedure as amended from time to time.
This delegation shall expire upon the appointment and entry upon duty of an individual to replace Henrietta H. Fore as the Under Secretary of State for Management.
This delegation of authority shall be published in the
The United States Climate Change Science Program requests expert review of the fourth and final volume of the Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report (“Climate Change 2007: Synthesis Report”).
The IPCC was established by the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) in 1988. In accordance with its mandate and as reaffirmed in various decisions by the Panel, the major activity of the IPCC is to prepare comprehensive and up-to-date assessments of policy-relevant scientific, technical, and socio-economic information for understanding the scientific basis of climate change, potential impacts, and options for mitigation and adaptation. The First Assessment Report was completed in 1990, the Second Assessment Report in 1995, and the Third Assessment Report in 2001. Three working group volumes and a synthesis report comprise the Fourth Assessment Report. Working Group I assesses the scientific aspects of the climate system and climate change; Working Group II assesses the vulnerability of socio-economic and natural systems to climate change, potential negative and positive consequences, and options for adapting to it; and Working Group III assesses options for limiting greenhouse gas emissions and otherwise mitigating climate change. So far in 2007, all three working groups have had their contributions to the Fourth Assessment Report accepted by the Panel. These assessments were based upon the peer-reviewed literature and have been characterized by an extensive and open review process involving both scientific/technical experts and governments before being accepted by the IPCC.
The IPCC Secretariat has informed the U.S. Department of State that the second-order draft of the Synthesis Report of the Fourth Assessment Report is available for Expert and Government Review. This volume is composed of a Summary for Policymakers and an underlying report, integrating materials—in a non-technical fashion—contained within the three working group contributions to the Fourth Assessment Report.
The Climate Change Science Program Office (CCSPO) is coordinating collection of U.S. expert comments and the review of this collations by panels of Federal scientists and program managers to develop a consolidated U.S. Government submission. Instructions on how to format comments are available at
Properly formatted comments should be sent to CCSPO at
For further information, please contact David Dokken, U.S. Climate Change Science Program, Suite 250, 1717 Pennsylvania Ave, NW., Washington, DC 20006 (
Office of Small and Disadvantaged Business Utilization (OSDBU), DOT.
Notice.
OSDBU announces that it has published an opportunity to apply for the FY 2007 Small Business Transportation Business Resource Center funding on the grants.gov Web site (
OSDBU will enter into Cooperative Agreements with these organizations to outreach to the small business community in their designated region and provide financial and technical assistance, business training programs such as, business assessment, management training, counseling, technical assistance, marketing and outreach, and the dissemination of information, to encourage and assist small businesses to become better prepared to compete for, obtain, and manage DOT funded transportation-related contracts and subcontracts at the Federal, State and local levels. Eligible applicants must be registered with the Internal Revenue Service as 501 C(6) or 501 C(3) tax-exempt organizations.
To apply for funding, applicants must be registered with grants.gov. Registration with grants.gov may take two to five days before the system will allow you to apply for grants using the grants.gov Web site
Proposals must be submitted to Grants.gov by June 15, 2007, 4 p.m. Eastern Standard Time. Proposals received after the deadline will be considered non-responsive and will not be reviewed.
Mr. Art Jackson, U.S. Department of Transportation, Office of Small and Disadvantaged Business Utilization, 400 7th Street, SW., Room 9414, Washington, DC 20590, Tel. 202-366-1930 or 800-532-1169. Office hours are from 9 a.m. to 5 p.m., EST., Monday through Friday, except Federal holidays.
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 206 meeting.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 206: Aeronautical Information Services Data Link.
The meeting will be held June 11-15, 2007 from 9 a.m. to 5 p.m.
The meeting will be held at Grand Hotel Tyska torget 2, Box 1152, 600 41 Norrkoping, Sweden.
(1) RTCA Secretariat, 1828 L Street, NW., Suite 805, Washington, DC 20036-5133; telephone (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 206 meeting/EUROCE WG 76. The agenda will include:
•
• Opening Season (Chairman's Remarks and Introductions, Review and Approve Meeting. Agenda and Minutes, Discussion, Action Item Review).
• Report on the May Task Force committee to harmonize the Met and AIS OSEDs.
• Due to the need to focus on finishing the document, there will be no general presentation at Norrkoping. If a presentation will enhance the ability to complete the document, it will be accepted.
• Breakout of Subgroup 1.
• Breakout of Subgroup 2.
•
• Subgroup 1 and Subgroup 2 Meetings.
•
• Subgroup 1 and Subgroup 2 Meetings.
•
• Subgroup 1 and Subgroup 2 Meetings.
•
• Plenary Session.
• Closing Session (Other Business, Date and Place of Next Meeting, Closing Remarks, Adjourn).
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel CAROLINA GALE.
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-2007-28176 at
Submit comments on or before June 20, 2007.
Comments should refer to docket number MARAD-2007-28176. 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, 1200 New Jersey Avenue, SE., #W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel CAROLINA GALE 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 RAFFLES.
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-2007-28167 at
Submit comments on or before June 20, 2007.
Comments should refer to docket number MARAD-2007-28167. 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 RAFFLES 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 SOUND CHOICE.
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
Submit comments on or before June 20, 2007.
Comments should refer to docket number MARAD-2007-28175. 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, 1200 New Jersey Avenue, SE., #W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel SOUND CHOICE 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, Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the petition of Mazda Motor Corporation, (Mazda) for an exemption in accordance with § 543.9(c)(2) of 49 CFR Part 543,
The exemption granted by this notice is effective beginning with model year (MY) 2009.
Ms. Carlita Ballard, Office of International Vehicle, Fuel Economy and Consumer Standards, NHTSA, 400 Seventh Street, SW., Washington, DC 20590. Ms. Ballard's phone number is (202) 366-0846. Her fax number is (202) 493-2290.
In a petition dated March 8, 2007, Mazda Motor Corporation (Mazda), requested an exemption from the parts-marking requirements of the theft prevention standard (49 CFR part 541) for the Mazda 5 vehicle line beginning with MY 2009. The petition requested an exemption from parts-marking pursuant to 49 CFR 543,
Under § 543.5(a), a manufacturer may petition NHTSA to grant exemptions for one line of its vehicle lines per year. Mazda has petitioned the agency to grant an exemption for its Mazda 5 vehicle line beginning with MY 2009. In its petition, Mazda provided a detailed description and diagram of the identity, design, and location of the components of the antitheft device for the new vehicle line. Mazda will install its passive antitheft device as standard equipment on its 5 vehicle line. Mazda's submission is considered a complete petition as required by 49 CFR 543.7, in that it meets the general requirements contained in § 543.5 and the specific content requirements of § 543.6.
Mazda's antitheft device is activated when the driver/operator turns off the engine using a properly coded ignition key. When the ignition key is turned to the “ON” position, the transponder (located in the head of the key) transmits a code to an immobilizer control module which then communicates with the powertrain's electronic control module. The vehicle's engine can only be started if the transponder code matches the code previously programmed into the module. If the code does not match, the engine will be disabled. Mazda stated that communications between the immobilizer system control function and the powertrain's electronic control module are encrypted with 18 trillion different codes, and each transponder is hard coded with a unique code at the time of manufacture. Mazda also stated that its immobilizer system incorporates a light-emitting diode (LED) that provides information as to when the system is “set and “unset”. When the ignition is initially turned to the “ON” position, a three-second continuous LED indicates the proper “unset” state of the device. When the ignition is turned to “OFF”, a flashing LED indicates the “set” state of the system and provides a visual confirmation that the vehicle is protected by the immobilizer system. The integration of the setting/unsetting device (transponder) into the ignition key prevents any inadvertent activation of the system.
In addressing the specific content requirements of 543.6, Mazda provided information on the reliability and durability of its proposed device. To ensure reliability and durability of the device, Mazda conducted tests based on its own specified standards. Mazda also provided a detailed list of the tests conducted and believes that the device is reliable and durable since the device complied with its specified requirements for each test. The components of the immobilizer device are tested in climatic, mechanical and chemical environments, and, immunity
Additionally, Mazda reported that in MY 1996, the proposed system was installed on certain U.S. Ford vehicles as standard equipment (
Mazda's proposed device, as well as other comparable devices that have received full exemptions from the parts-marking requirements, lack an audible or visible alarm. Therefore, these devices cannot perform one of the functions listed in 49 CFR part 543.6(a)(3), that is, to call attention to unauthorized attempts to enter or move the vehicle. However, theft data have indicated a decline in theft rates for vehicle lines that have been equipped with devices similar to that which Mazda proposes. In these instances, the agency has concluded that the lack of a visual or audio alarm has not prevented these antitheft devices from being effective protection against theft.
Based on the evidence submitted by Mazda, the agency believes that the antitheft device for the Mazda 5 vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR 541).
The agency concludes that the device will provide four of the five types of performance listed in § 543.6(a)(3): Promoting activation; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
As required by 49 U.S.C. 33106 and 49 CFR part 543.6(a)(4) and (5), the agency finds that Mazda has provided adequate reasons for its belief that the antitheft device will reduce and deter theft. This conclusion is based on the information Mazda provided about its device. For the foregoing reasons, the agency hereby grants in full Mazda's petition for exemption for its vehicle line from the parts-marking requirements of 49 CFR part 541.
The agency notes that 49 CFR part 541, Appendix A-1, identifies those lines that are exempted from the Theft Prevention Standard for a given model year. 49 CFR part 543.7(f) contains publication requirements incident to the disposition of all part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts-marking requirements of the Theft Prevention Standard.
If Mazda decides not to use the exemption for this line, it should formally notify the agency. If such a decision is made, the line must be fully marked according to the requirements under 49 CFR parts 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if Mazda wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Part 543.7(d) states that a part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line's exemption is based. Further, part 543.9(c)(2) provides for the submission of petitions “to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in that exemption.”
The agency wishes to minimize the administrative burden that part 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be
49 U.S.C. 33106; delegation of authority at 49 CFR 1.50.
Surface Transportation Board.
Notice of intent to seek approval of existing collection: Waybill Sample
As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Comments on this information collection should be submitted by July 20, 2007.
Direct all comments to Marilyn Levitt, Surface Transportation Board, Suite 1260, 395 E Street, SW., Washington, DC 20423-0001, or to
Mac Frampton at (202) 245-0317 or at
Under the PRA, a Federal agency conducting or sponsoring a collection of information must display a currently valid OMB control number. A collection of information, which is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c), includes agency requirements that persons submit reports, keep records, or provide information to the agency, third parties, or the public. Under section 3506(c)(2)(A) of the PRA, Federal agencies are required to provide public notice and a 60-day comment period, prior to seeking OMB approval for an information collection.
Surface Transportation Board.
Notice of decision.
The Board is instituting a proceeding to determine the railroad industry's cost of capital for 2006. The decision solicits comments on: (1) The railroads' 2006 current cost of debt capital; (2) the railroads' 2006 current cost of preferred stock equity capital (if any); (3) the railroads' 2006 cost of common stock equity capital; and (4) the 2006 capital structure mix of the railroad industry on a market value basis.
Notices of intent to participate are due no later than May 29, 2007. Statements of the railroads are due by June 25, 2007. Statements of other interested persons are due by July 25, 2007. Rebuttal statements by the railroads are due by August 9, 2007.
Railroads and others that intend to participate in this proceeding shall file an original and one copy of a notice of intent to participate with the Secretary by the date specified below. Evidentiary statements are to be filed with the Board on or before the dates set forth above. Comments may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should comply with the instructions at the E-FILING link on the Board's Web site, at
Scott Decker, (202) 245-0330. (Federal Information Relay Service (FIRS) for the hearing impaired: 1 (800) 877-8339.)
The Board's decision is posted on the Board's website,
We preliminarily conclude that the proposed action will not significantly affect either the quality of the human environment or the conservation of energy resources.
49 U.S.C. 10704(a).
By the Board, Chairman Nottingham, Vice Chairman Buttrey, and Commissioner Mulvey.
Grand Trunk Western Railroad Incorporated (GTW) has filed a notice of exemption under 49 CFR 1152 Subpart F—
GTW has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic to be rerouted; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Board or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental reports), 49 CFR 1105.8 (historic reports), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on June 20, 2007, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to GTW's representative: Thomas J. Healey, 17641 S. Ashland Avenue, Homewood, IL 60430-1345.
If the verified notice contains false or misleading information, the exemption is void
GTW has filed a combined environmental report and historic report which addresses the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment (EA) by May 25, 2007. Interested persons may obtain a copy of the EA by writing to SEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at (202) 245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.] Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), GTW shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by GTW's filing of a notice of consummation by May 21, 2008, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, David M. Konschnik, Director, Office of Proceedings.
Mission Mountain Railroad, Inc. (MMT)
MMT has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic on the line to be rerouted; (3) no formal complaint filed by a user of rail service on the line (or by a State or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.12 (newspaper publication) and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on June 20, 2007, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues and formal expressions of intent to file an OFA for continued rail service under 49 CFR 1152.27(c)(2),
A copy of any petition filed with the Board should be sent to MMT's representative: Karl Morell, Ball Janik LLP, 1455 F Street, NW., Suite 225, Washington, DC 20005.
If the verified notice contains false or misleading information, the exemption is void
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
On April 19, 2007, as supplemented on May 7, 2007, the Wisconsin & Southern Railroad Co. (WSOR) filed with the Board a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to abandon an approximately 2.41-mile line of railroad, extending from milepost 94.35, east of N. 24th Street, to milepost 96.76, west of N. Richards Street, known as the Nut Line, in the cities of Milwaukee and Glendale, in Milwaukee County, WI.
The line does not contain federally granted rights-of-way. Any documentation in WSOR's possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set forth in
By issuing this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by August 24, 2007.
Any OFA under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption. Each OFA must be accompanied by a $1,300 filing fee.
All interested persons should be aware that, following abandonment of rail service and salvage of the line, the line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than June 14, 2007. Each trail use request must be accompanied by a $200 filing fee.
All filings in response to this notice must refer to STB Docket No. AB-383 (Sub-No. 5X), and must be sent to: (1) Surface Transportation Board, 395 E Street, S.W., Washington, DC 20423-0001; and (2) John D. Heffner, John D. Heffner, PLLC, 1920 N Street, NW., Suite 800, Washington, DC 20036. Replies to the petition are due on or before June 14, 2007.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Services at (202) 245-0230 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by SEA will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact SEA to obtain a copy of the EA (or EIS). EAs in these abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA will generally be within 30 days of its service.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the renewal of an information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning an information collection titled, “Interagency Statement on Complex Structured Finance Transactions.”
Comments must be submitted on or before July 20, 2007.
Communications Division, Office of the Comptroller of the Currency, Public Information Room, Mailstop 1-5, Attention: 1557-0229, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874-4448, or by electronic mail to
Additionally, you should send a copy of your comments to OCC Desk Officer, 1557-0229, by mail to U.S. Office of Management and Budget, 725 17th Street, NW., #10235, Washington, DC 20503, or by fax to (202) 395-6974.
You may request additional information or a copy of the collection and supporting documentation submitted to OMB by contacting: Mary Gottlieb or Camille Dickerson, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the renewal of an information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning an information collection titled, “Record and Disclosure Requirements—FRB Regulations B, E, M, Z, CC, and DD.”
Comments must be submitted on or before July 20, 2007.
Communications Division, Office of the Comptroller of the Currency, Public Information Room, Mailstop 1-5, Attention: 1557-0176, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874-4448, or by electronic mail to
Additionally, you should send a copy of your comments to OCC Desk Officer, 1557-0176, by mail to U.S. Office of Management and Budget, 725 17th Street, NW., #10235, Washington, DC 20503, or by fax to (202) 395-6974.
You may request additional information or a copy of the collection and supporting documentation submitted to OMB by contacting: Mary Gottlieb or Camille Dickerson, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
Prohibits lenders from discriminating against credit applicants, establishes guidelines for gathering and evaluating information about personal characteristics in applications for certain dwelling-related loans, requires lenders to provide applicants with copies of appraisal reports in connection with credit transactions, and requires written notification of action taken on a credit application.
Requires certain mortgage lenders to report certain home loan application information and to disclose certain data regarding their home mortgage lending.
Establishes the rights, liabilities, and responsibilities of parties in electronic funds transfers and protects consumers when they use such systems.
Implements the consumer leasing provisions of the Truth in Lending Act by requiring meaningful disclosure of leasing terms.
Prescribes uniform methods for computing the cost of credit, for disclosing credit terms and costs, and for resolving errors on certain types of credit accounts.
Governs the availability of funds deposited in checking accounts, the collection and return of checks, and substitute checks.
Requires depository institutions to provide disclosures to enable consumers to make meaningful comparisons of deposit accounts.
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning an extension of OMB approval of the information collection titled, “Disclosure of Financial and Other Information by National Banks (12 CFR 18).” The OCC also gives notice that it has sent the information collection to OMB for review and approval.
Comments must be submitted on or before June 20, 2007.
Communications Division, Office of the Comptroller of the Currency, Public Information Room, Mailstop 1-5, Attention: 1557-0182, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874-4448, or by electronic mail to
Additionally, you should send a copy of your comments to OCC Desk Officer, 1557-0182, by mail to U.S. Office of Management and Budget, 725 17th Street, NW., #10235, Washington, DC 20503, or by fax to (202) 395-6974.
You may request additional information or a copy of the collection and supporting documentation submitted to OMB by contacting: Mary Gottlieb or Camille Dickerson, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
The regulation applies to approximately 1,800 national banks and 50 Federal branches and agencies. Most banks will use their Call Reports or information prepared for annual reports as their disclosure material.
This program of periodic financial disclosure is needed, not only to facilitate informed decision making by existing and potential customers and investors, but also to improve public understanding of, and confidence in, the financial condition of individual national banks and the national banking system. Further, financial disclosure reduces the likelihood that the market will overreact to incomplete information.
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning an extension of OMB approval of the information collection titled, “(MA) Real Estate Lending and Appraisals (12 CFR 34).” The OCC also gives notice that it has sent the information collection to OMB for review and approval.
Comments must be submitted on or before June 20, 2007.
Communications Division, Office of the Comptroller of the Currency, Public Information Room, Mailstop 1-5, Attention: 1557-0190, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874-4448, or by electronic mail to
Additionally, you should send a copy of your comments to OCC Desk Officer, 1557-0190, by mail to U.S. Office of Management and Budget, 725 17th Street, NW., #10235, Washington, DC 20503, or by fax to (202) 395-6974.
You may request additional information or a copy of the collection and supporting documentation submitted to OMB by contacting: Mary Gottlieb or Camille Dickerson, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
National banks must review and maintain records required under 12 CFR Part 34 Subpart C (Appraisal Requirements) and Subpart D (Real Estate Lending Standards) and file the reports required by Subpart E (Other Real Estate Owned).
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
United States Sentencing Commission.
Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2007.
Pursuant to its authority under 28 U.S.C. 994(p), the Commission has promulgated amendments to the sentencing guidelines, policy statements, commentary, and statutory index. This notice sets forth the amendments and the reason for each amendment.
The Commission has specified an effective date of November 1, 2007, for the amendments set forth in this notice.
Michael Courlander, Public Affairs Officer, 202-502-4590. The amendments set forth in this notice also may be accessed through the Commission's Web site at
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).
Notice of proposed amendments was published in the
28 U.S.C. 994(a), (o), and (p); USSC Rule of Practice and Procedure 4.1.
Amendment: The Commentary to § 1B1.13 captioned “Application Notes” is amended in Note 1 by striking subdivision (A) and inserting the following:
“(A) Extraordinary and Compelling Reasons.—Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the following circumstances:
(i) The defendant is suffering from a terminal illness.
(ii) The defendant is suffering from a permanent physical or medical condition, or is experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and for which conventional treatment promises no substantial improvement.
(iii) The death or incapacitation of the defendant's only family member capable of caring for the defendant's minor child or minor children.
(iv) As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (i), (ii), and (iii).”.
The Commentary to § 1B1.13 is amended by striking “Background” and all that follows through the end of “statute.” and inserting the following:
“Background: This policy statement implements 28 U.S.C. 994(t).”.
Reason for Amendment: This amendment modifies the policy statement at § 1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons) to further effectuate the directive in 28 U.S.C. 994(t). Section 994(t) provides that the Commission “in promulgating general policy statements regarding the sentence modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” The amendment revises Application Note 1(A) of § 1B1.13 to provide four examples of circumstances that, provided the defendant is not a danger to the safety of any other person or to the community, would constitute “extraordinary and compelling reasons” for purposes of 18 U.S.C. 3582(c)(1)(A).
Amendment: The Commentary to § 2A1.1 captioned “Statutory Provisions” is amended by inserting “1992(a)(7),” after “1841(a)(2)(C),”; and by inserting “2199, 2291,” after “2118(c)(2),”.
The Commentary to § 2A1.2 captioned “Statutory Provisions” is amended by inserting “2199, 2291,” after “1841(a)(2)(C),”.
The Commentary to § 2A1.3 captioned “Statutory Provisions” is amended by inserting “2199, 2291,” after “1841(a)(2)(C),”.
The Commentary to § 2A1.4 captioned “Statutory Provisions” is amended by inserting “2199, 2291,” after “1841(a)(2)(C),”.
The Commentary to § 2A1.4 captioned “Application Note” is amended in Note 1 by striking “18 U.S.C. 1993(c)(5)” and inserting “18 U.S.C. 1992(d)(7)”.
The Commentary to § 2A2.1 captioned “Statutory Provisions” is amended by striking “1993(a)(6)” and inserting “1992(a)(7), 2199, 2291”.
The Commentary to § 2A2.2 captioned “Statutory Provisions” is amended by striking “1993(a)(6),” and inserting “1992(a)(7), 2199, 2291,”.
The Commentary to § 2A2.3 captioned “Statutory Provisions” is amended by inserting “, 2199, 2291” after “1751(e)”.
The Commentary to § 2A2.4 captioned “Statutory Provisions” is amended by inserting “2237(a)(1), (a)(2)(A),” after “1502,”.
Section 2A5.2 is amended in the heading by inserting “Navigation,” after “Dispatch,”; and by striking “or Ferry”.
Sections 2A5.2(a)(1) and (a)(2) are amended by striking the comma after “facility” each place it appears and inserting “or”; and by striking “, or a ferry” each place it appears.
The Commentary to § 2A5.2 captioned “Statutory Provisions” is amended by striking “1993(a)(4), (5), (6), (b);” and inserting “1992(a)(1), (a)(4), (a)(5), (a)(6);”.
The Commentary to § 2A5.2 captioned “Application Note” is amended in Note 1 in the last paragraph by striking “18 U.S.C. 1993(c)(5)” and inserting “18 U.S.C. 1992(d)(7)”.
The Commentary to § 2A6.1 captioned “Statutory Provisions” is amended by striking “1993(a)(7), (8),” and inserting “1992(a)(9), (a)(10), 2291(a)(8), 2291(e), 2292,”.
Section 2B1.1(b) is amended by striking subdivision (11) and inserting the following:
“(11) If the offense involved an organized scheme to steal or to receive stolen (A) vehicles or vehicle parts; or (B) goods or chattels that are part of a cargo shipment,
The Commentary to § 2B1.1 captioned “Statutory Provisions” is amended by inserting “(a)(1), (a)(5)” after “1992”; by striking “1993(a)(1), (a)(4),”; by inserting “2291,” after “2113(b),”; and by inserting “14915,” after “49 U.S.C. § ”.
The Commentary to § 2B1.1 captioned “Application Notes” is amended by striking Note 10 and inserting the following:
“10. Application of Subsection (b)(11).—Subsection (b)(11) provides a minimum offense level in the case of an ongoing, sophisticated operation (e.g., an auto theft ring or 'chop shop') to steal or to receive stolen (A) vehicles or vehicle parts; or (B) goods or chattels that are part of a cargo shipment. For purposes of this subsection, 'vehicle' means motor vehicle, vessel, or aircraft. A 'cargo shipment' includes cargo transported on a railroad car, bus, steamboat, vessel, or airplane.”.
Section 2B2.3(b)(1) is amended by striking “secured” each place it appears and inserting “secure”; and by inserting “or a seaport” after “airport”.
The Commentary to § 2B2.3 captioned “Statutory Provisions” is amended by inserting “, 2199” after “1036”.
The Commentary to § 2B2.3 captioned “Application Notes” is amended in Note 1 by adding at the end the following:
“ ‘Seaport' has the meaning given that term in 18 U.S.C. 26.”.
The Commentary to § 2B2.3 captioned “Background” is amended by striking “secured” before “government” and inserting “secure”; and by striking “, such as nuclear facilities,” and inserting “(such as nuclear facilities) and other locations (such as airports and seaports)”.
The Commentary to § 2C1.1 captioned “Statutory Provisions” is amended by inserting “226,” after “§§ 201(b)(1), (2),”.
The Commentary to § 2K1.4 captioned “Statutory Provisions” is amended by inserting “(a)(1), (a)(2), (a)(4)” after “1992”; by striking “1993(a)(1), (a)(2), (a)(3), (b),”; and by inserting “2291,” after “2275,”.
The Commentary to § 2K1.4 captioned “Application Notes” is amended in Note 1 by striking “18 U.S.C. 1993(c)(5)” and inserting “18 U.S.C. 1992(d)(7)”.
The Commentary to § 2M6.1 captioned “Statutory Provisions” is amended by striking “1993(a)(2), (3), (b), 2332a (only with respect to weapons of mass destruction as defined in 18 U.S.C. 2332a(c)(2)(B), (C), and (D)),” and inserting “1992(a)(2), (a)(3), (a)(4), (b)(2), 2291,”.
The Commentary to § 2Q1.1 captioned “Statutory Provisions” is amended by inserting “18 U.S.C. 1992(b)(3);” before “33 U.S.C. 1319(c)(3);”.
Section 2X1.1 is amended in subsection (d)(1)(A) by inserting “(a)(1)-(a)(7), (a)(9), (a)(10)” after “1992”; and in subsection (d)(1)(B) by inserting “and” after “§ 32;”; and by striking “18 U.S.C. 1993; and”.
The Commentary to § 2X5.2 captioned “Statutory Provisions” is amended by inserting “; 49 U.S.C. 31310” after “14133”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. 225 the following:
Reason for Amendment: This amendment implements various provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177 (the “PATRIOT Reauthorization Act”) and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. 109-59 (“SAFETEA-LU”). The PATRIOT Reauthorization Act created several new offenses and increased the scope of or penalty for several existing offenses. SAFETEA-LU also created two new offenses. This amendment references both the new statutes and those with increased scope and penalties to existing guidelines. The amendment also provides a corresponding amendment to Appendix A (Statutory Index). The Commission concluded that referencing the new offenses to existing guidelines was appropriate because the type of conduct criminalized by the new statutes was adequately addressed and penalized by the guidelines.
Section 307(c) of the PATRIOT Reauthorization Act directed the Commission to review the guidelines to determine whether a sentencing enhancement is appropriate for any offense under sections 659 or 2311 of title 18, United States Code. This amendment responds to the directive by revising the enhancement at subsection (b)(11) of § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). The amendment expands the scope of this enhancement to cover cargo theft and adds a reference to the receipt of stolen vehicles or goods to ensure application of the enhancement is consistent with the scope of 18 U.S.C. § 659 and 2313. The Commission determined that the two-level increase, and the minimum offense level of 14, appropriately responds to concerns regarding the increased instances of organized cargo theft operations.
Amendment: The Commentary to § 2A1.1 captioned “Statutory Provisions”, as amended by Amendment 2 of this document, is further amended by inserting “2282A,” after “2199,”.
The Commentary to § 2A1.2 captioned “Statutory Provisions”, as amended by Amendment 2 of this document, is further amended by inserting “2282A,” after “2199”.
The Commentary to § 2B1.1 captioned “Statutory Provisions”, as amended by Amendment 2 of this document, is further amended by inserting “2282A, 2282B,” after “2113(b),”.
The Commentary to § 2B1.5 captioned “Statutory Provisions” is amended by inserting “554,” before “641,”.
Chapter Two, Part D, Subpart One, is amended by adding at the end the following new guideline and accompanying commentary:
(a) Base Offense Level:
(1) The offense level from § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) applicable to the underlying offense, except that § 2D1.1(a)(3)(A), (a)(3)(B), and (b)(11) shall not apply.
(b) Specific Offense Characteristic
(1) If § 3A1.4 (Terrorism) does not apply, increase by 6 levels.
Statutory Provision: 21 U.S.C. 960a.”
Chapter Two, Part E, Subpart Four, is amended in the heading by adding at the end “AND SMOKELESS TOBACCO”.
Section 2E4.1 is amended in the heading by adding at the end “and Smokeless Tobacco”.
The Commentary to § 2E4.1 captioned “Background” is amended by striking “60,000” and inserting “10,000”.
The Commentary to § 2K1.3 captioned “Statutory Provisions” is amended by inserting “, 2283” after “1716”.
Section 2K1.4 is amended in subsections (a)(1) and (a)(2) by striking “a ferry,” each place it appears and inserting “a maritime facility, a vessel, or a vessel's cargo,”; in subsection (a)(2) by striking “or” the last place it appears; by redesignating subsection (a)(3) as subsection (a)(4); and by inserting the following after subsection (a)(2):
“(3) 16, if the offense involved the destruction of or tampering with aids to maritime navigation; or”.
Section 2K1.4(b)(2) is amended by striking “(a)(3)” and inserting “(a)(4)”.
The Commentary to § 2K1.4 captioned “Statutory Provisions”, as amended by Amendment 2 of this document, is further amended by inserting “2282A, 2282B,” after “2275,”.
The Commentary to § 2K1.4 captioned “Application Notes” is amended in Note 1 by inserting after “For purposes of this guideline:” the following paragraph:
“ ‘Aids to maritime navigation’ means any device external to a vessel intended to assist the navigator to determine position or save course, or to warn of dangers or obstructions to navigation.”;
“ ‘Maritime facility’ means any structure or facility of any kind located in, on, under, or adjacent to any waters subject to the jurisdiction of the United States and used, operated, or maintained by a public or private entity, including any contiguous or adjoining property under common ownership or operation.”;
“ ‘Vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”
The Commentary to § 2M5.2 captioned “Statutory Provisions” is amended by inserting “18 U.S.C. 554;” before “22 U.S.C. 2778, 2780.”.
Section 2M5.3 is amended in the heading by inserting “Specially Designated Global Terrorists, or” after “Organizations or”
The Commentary to § 2M5.3 captioned “Statutory Provisions” is amended by inserting “2283, 2284,” after “18 U.S.C. “; and by striking the period at the end and inserting “; 50 U.S.C. 1701, 1705.”.
The Commentary to § 2M5.3 captioned “Application Notes” is amended in Note 1 by adding at the end the following paragraph:
“ ‘Specially designated global terrorist’ has the meaning given that term in 31 CFR 594.513.”.
Section 2M6.1 is amended in the heading by striking “Production, Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of” and inserting “Activity Involving”.
The Commentary to § 2M6.1 captioned “Statutory Provisions”, as amended by Amendment 2 of this document, is further amended by inserting “2283,” before “2291,”.
The Commentary to § 2Q2.1 captioned “Statutory Provisions” is amended by inserting “§ ” before “545” and by inserting “, 554” after “545”.
The Commentary to § 2Q2.1 captioned “Background” is amended by striking “§ 545 where” and inserting “§§ 545 and 554 if”.
The Commentary to § 2X1.1 captioned “Statutory Provisions” is amended by inserting “, 2282A, 2282B,” after “2271,”.
The Commentary to § 2X2.1 captioned “Statutory Provisions” is amended by inserting “2284,” after “2,”.
The Commentary to § 2X3.1 captioned “Statutory Provisions” is amended by inserting “2284,” after “1072,”.
Chapter Two, Part X is amended by adding at the end the following new subpart, guideline, and accompanying commentary:
(a) Base Offense Level:
(1) If the defendant was convicted under 18 U.S.C. 554(c), 4 plus the offense level applicable to the underlying smuggling offense. If the resulting offense level is less than level 16, increase to level 16.
(2) 16, if the defendant was convicted under 18 U.S.C. 554(a); or
(3) 8, if the defendant was convicted under 18 U.S.C. 554(b).
Statutory Provision: 18 U.S.C. 554.
Application Note:
1. Definition.—For purposes of this guideline, ‘underlying smuggling offense’ means the smuggling offense the defendant committed through the use of the tunnel or subterranean passage.”.
Chapter Five, Part K is amended by adding at the end the following new policy statement and accompanying commentary:
If, during the commission of the offense, the defendant wore or displayed an official, or counterfeit official, insignia or uniform received in violation of 18 U.S.C. 716, an upward departure may be warranted.
Application Note:
1. Definition.—For purposes of this policy statement, ‘official insignia or uniform' has the meaning given that term in 18 U.S.C. 716(c)(3).”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. 553(a)(2) the following:
Appendix A (Statutory Index), as amended by Amendment 2 of this document, is further amended by inserting after the line referenced to 18 U.S.C. 2281 the following:
Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 2339 by inserting “2M5.3,” before “2X2.1”;
Reason for Amendment: This amendment implements the USA PATRIOT Improvement and Reauthorization Act of 2005 (the “PATRIOT Reauthorization Act”), Pub. L. 109-177, and the Department of Homeland Security Appropriations Act, 2007 (the “Homeland Security Act”), Pub. L. 109-295.
First, the amendment addresses section 122 of the PATRIOT Reauthorization Act, which created a new offense at 21 U.S.C. 960a covering narco-terrorism. This new offense prohibits engaging in conduct that would be covered under 21 U.S.C. 841(a) if committed under the jurisdiction of the United States, knowing or intending to provide, directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act) or terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (This act is made up of separate parts divided by fiscal year)). The penalty is not less than twice the statutory minimum punishment under 21 U.S.C. 841(b)(1) and not more than life. Section 960a also provides a mandatory term of supervised release of at least five years.
The amendment creates a new guideline at § 2D1.14 (Narco-Terrorism) because an offense under 21 U.S.C. 960a differs from basic drug offenses because it involves trafficking that benefits terrorist activity. The guideline also provides that the base offense level is the offense level determined under § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) for the underlying offense, except that the “mitigating role cap” in § 2D1.1(a)(3)(A) and (B) and the two-level reduction for meeting the criteria set forth in subdivisions (1)-(5) of subsection (a) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) shall not apply. The Commission determined that these exclusions are appropriate to reflect that this is not a typical drug offense, in that an individual convicted under this provision must have had knowledge that the person or organization receiving the funds or support generated by the drug trafficking “has engaged or engages in terrorist activity * * * or terrorism * * *.” The guideline also contains a specific offense characteristic that provides a six-level increase if the adjustment in § 3A1.4 (Terrorism) does not apply. This six-level increase fully effectuates the statute's doubling of the minimum punishment for the underlying drug offense, while avoiding potential double counting with the 12-level adjustment at § 3A1.4. The amendment also provides a corresponding reference for the new offense to § 2D1.14 in Appendix A (Statutory Index).
Second, the amendment responds to the directive in section 551 of the Homeland Security Act, which created a new offense in 18 U.S.C. 554 regarding the construction of border tunnels and subterranean passages that cross the international boundary between the United States and another country. Section 551(c) of the Homeland Security Act directed the Commission to promulgate or amend the guidelines to provide for increased penalties for persons convicted of offenses under 18 U.S.C. 554 and required the Commission to consider a number of factors. Section 554(a) prohibits the construction or financing of such tunnels and passages and provides a statutory maximum term of imprisonment of 20 years. Section 554(b) prohibits the knowing or reckless disregard of the construction on land the person owns or controls and provides a statutory maximum term of imprisonment of 10 years. Section 554(c) prohibits the use of the tunnels to smuggle an alien, goods (in violation of 18 U.S.C. 545), controlled substances, weapons of mass destruction (including biological weapons), or a member of a terrorist organization (defined in 18 U.S.C. 2339B(g)(6)) and provides a penalty of twice the maximum term of imprisonment that otherwise would have been applicable had the unlawful activity not made use of the tunnel or passage.
The amendment creates a new guideline at § 2X7.1 (Border Tunnels and Subterranean Passages) for convictions under 18 U.S.C. 554. The new guideline provides that a conviction under 18 U.S.C. 554(a) receives a base offense level 16, which is commensurate with certain other offenses with statutory maximum terms of imprisonment of 20 years and ensures a sentence of imprisonment. A conviction under 18 U.S.C. 554(c) will receive a four-level increase over the offense level applicable to the underlying smuggling offense, which ensures that the seriousness of the underlying offense is the primary measure of offense severity. The four-level increase also satisfies the directive's instruction to account for the aggravating nature of the use of a tunnel or subterranean passage to breach the border to accomplish the smuggling offense and effectuates the statute's doubling of the statutory maximum penalty. A conviction under 18 U.S.C. 554(b) receives a base offense level of 8, which reflects the less aggravated nature of this offense.
Third, the amendment addresses other new offenses created by the PATRIOT Reauthorization Act. Based on an assessment of similar offenses already covered by the relevant guidelines, the amendment provides as follows:
(A) The new offense in 18 U.S.C. 554, pertaining to smuggling of goods from the United States, is referenced to §§ 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources), 2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License), and 2Q2.1 (Offenses Involving Fish, Wildlife, and Plants).
(B) The new offense in 18 U.S.C. 2282A, pertaining to mining of United States navigable waters, is referenced to §§ 2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States), 2K1.4 (Arson; Property Damage by Use of Explosives), and 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)). The amendment also adds vessel, maritime facility, and a vessel's cargo to § 2K1.4(a)(1) and (a)(2) to cover conduct described in 18 U.S.C. 2282A. The definitions provided for “vessel,” “maritime facility,” and “aids to maritime navigation” come from title 33 of the Code of Federal Regulations pertaining to the United States Coast Guard, specifically Navigation and Navigable Waters.
Section 2282B, pertaining to violence against maritime navigational aids, is referenced to §§ 2B1.1, 2K1.4, and 2X1.1. Section 2K1.4(a) is amended to provide a new base offense level of 16 if the offense involved the destruction of or tampering with aids to maritime navigation.
(C) The new offense in 18 U.S.C. 2283 pertaining to transporting biological and
(D) Section 2341 of title 18, United States Code, which provides definitions for offenses involving contraband cigarettes and smokeless tobacco, was amended to reduce the number of contraband cigarettes necessary to violate the substantive offenses set forth in 18 U.S.C. 2342 and 2344 from 60,000 to 10,000. The amendment makes conforming changes to the background commentary of § 2E4.1 (Unlawful Conduct Relating to Contraband Cigarettes) and expands the headings of Chapter Two, Part E, Subpart 4 and § 2E4.1 to include smokeless tobacco.
(E) The Patriot Reauthorization Act increased the statutory maximum term of imprisonment for offenses covered by the International Emergency Economic Powers Act (50 U.S.C. 1705) from 10 years to 20 years' imprisonment. The amendment references 50 U.S.C. 1705 to § 2M5.3 and modifies the heading of the guideline to include “specially designated global terrorist”.
Fourth, the amendment sets forth the statutory references in Appendix A (Statutory Index) for the new offenses. Appendix A is amended to provide a parenthetical description for the two statutory references to 18 U.S.C. 554 created by the PATRIOT Reauthorization Act.
Fifth, the amendment implements a directive in section 1191(c) of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162. The Act directed the Commission to amend the guidelines “to assure that the sentence imposed on a defendant who is convicted of a Federal offense while wearing or displaying insignia and uniform received in violation of section 716 of title 18, United States Code, reflects the gravity of this aggravating factor.” Section 716 of title 18, United States Code, is a Class B misdemeanor which is not covered by the guidelines, see § 1B1.9 (Class B or C Misdemeanors and Infractions); however, the amendment creates a new policy statement at § 5K2.24 (Commission of Offense While Wearing or Displaying Unauthorized or Counterfeit Insignia or Uniform) providing that an upward departure may be warranted if, during the commission of the offense, the defendant wore or displayed an official, or counterfeit official, insignia or uniform received in violation of 18 U.S.C. 716.
Amendment: Chapter Two, Part A, Subpart Three, is amended in the heading by adding at the end “AND OFFENSES RELATED TO REGISTRATION AS A SEX OFFENDER”.
Section 2A3.1(a) is amended by striking “30” and inserting the following:
“(1) 38, if the defendant was convicted under 18 U.S.C. 2241(c); or
(2) 30, otherwise.”.
Section 2A3.1(b)(2) is amended by striking “(A) If” and inserting “If subsection (a)(2) applies and (A)”; and by striking “if” after “(B)”.
The Commentary to § 2A3.1 captioned “Application Notes” is amended in Note 2 by inserting “(A) Definitions.-” before “For purposes of”; and by adding at the end the following subdivision:
“(B) Application in Cases Involving a Conviction under 18 U.S.C. 2241(c).—If the conduct that forms the basis for a conviction under 18 U.S.C. 2241(c) is that the defendant engaged in conduct described in 18 U.S.C. 2241(a) or (b), do not apply subsection (b)(1).”.
The Commentary to § 2A3.1 is amended by striking “Background” and all that follows through the end of “abduction.”.
Section 2A3.3(a) is amended by striking “12” and inserting “14”.
The Commentary to § 2A3.3 captioned “Application Notes” is amended in Note 1 by striking “ ‘Minor' means an individual who had not attained the age of 18 years.” and inserting the following:
“ ‘Minor' means (A) an individual who had not attained the age of 18; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.”.
The Commentary to § 2A3.3 captioned “Application Notes” is amended by adding at the end the following:
“4. Inapplicability of § 3B1.3.—Do not apply § 3B1.3 (Abuse of Position of Trust or Use of Special Skill).”.
The Commentary to § 2A3.3 is amended by striking “Background” and all that follows through the end of “year.”.
Section 2A3.4(b)(1) is amended by striking “20” each place it appears and inserting “22”.
The Commentary to § 2A3.4 captioned “Statutory Provisions” is amended by striking “(a)(1), (2), (3)” after “§ 2244”.
The Commentary to § 2A3.4 captioned “Background” is amended by striking “Enhancements are provided” and all that follows through the end of “sixteen years.”.
Chapter Two, Part A, Subpart Three, is amended by adding at the end the following new guidelines and accompanying commentaries:
(a) Base Offense Level (apply the greatest):
(1) 16, if the defendant was required to register as a Tier III offender;
(2) 14, if the defendant was required to register as a Tier II offender; or
(3) 12, if the defendant was required to register as a Tier I offender.
(b) Specific Offense Characteristics
(1) (Apply the greatest):
If, while in a failure to register status, the defendant committed—
(A) a sex offense against someone other than a minor increase by 6 levels;
(B) a felony offense against a minor not otherwise covered by subdivision (C), increase by 6 levels; or
(C) a sex offense against a minor, increase by 8 levels.
(2) If the defendant voluntarily (A) corrected the failure to register; or (B) attempted to register but was prevented from registering by uncontrollable circumstances and the defendant did not contribute to the creation of those circumstances, decrease by 3 levels.
Statutory Provision: 18 U.S.C. 2250(a).
Application Notes:
1. Definitions.—For purposes of this guideline:
‘Minor' means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.
‘Sex offense' has the meaning given that term in 42 U.S.C. 16911(5).
“Tier I offender',“tier II offender', and “tier III offender' have the meaning given those terms in 42 U.S.C. 16911(2), (3) and (4), respectively.
2. Application of Subsection (b)(2).—
(A) In General.—In order for subsection (b)(2) to apply, the defendant's voluntary attempt to register or to correct the failure to register must have occurred prior to the time the defendant knew or reasonably should have known a jurisdiction had detected the failure to register.
(B) Interaction with Subsection (b)(1).—Do not apply subsection (b)(2) if subsection (b)(1) also applies.
If the defendant was convicted under—
(a) 18 U.S.C. 2250(c), the guideline sentence is the minimum term of imprisonment required by statute; or
(b) 18 U.S.C. 2260A, the guideline sentence is the term of imprisonment required by statute.
Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to any count of conviction covered by this guideline.
Statutory Provisions: 18 U.S.C. 2250(c), 2260A.
Application Notes:
1. In General.—Section 2250(c) of title 18, United States Code, provides a mandatory minimum term of five years' imprisonment and a statutory maximum term of 30 years' imprisonment. The statute also requires a sentence to be imposed consecutively to any sentence imposed for a conviction under 18 U.S.C. 2250(a). Section 2260A of title 18, United States Code, provides a term of imprisonment of 10 years that is required to be imposed consecutively to any sentence imposed for an offense enumerated under that section.
2. Inapplicability of Chapters Three and Four.—Do not apply Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline. Such offenses are excluded from application of those chapters because the guideline sentence for each offense is determined only by the relevant statute.
3. Inapplicability of Chapter Two Enhancement.—If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic that is based on the same conduct as the conduct comprising the conviction under 18 U.S.C. 2250(c) or § 2260A.
4. Upward Departure.—In a case in which the guideline sentence is determined under subsection (a), a sentence above the minimum term required by 18 U.S.C. 2250(c) is an upward departure from the guideline sentence. A departure may be warranted, for example, in a case involving a sex offense committed against a minor or if the offense resulted in serious bodily injury to a minor.”.
Section 2G1.1(a) is amended by striking “14” and inserting the following:
“(1) 34, if the offense of conviction is 18 U.S.C. 1591(b)(1); or
(2) 14, otherwise.”.
Section 2G1.1(b)(1) is amended by inserting “(A) subsection (a)(2) applies; and (B)” after “If”.
The Commentary to § 2G1.1 is amended by striking “Background” and all that follows through the end of “Minor).”.
Section 2G1.3(a) is amended by striking “24” and inserting the following:
”(1) 34, if the defendant was convicted under 18 U.S.C. 1591(b)(1);
(2) 30, if the defendant was convicted under 18 U.S.C. 1591(b)(2);
(3) 28, if the defendant was convicted under 18 U.S.C. 2422(b) or § 2423(a); or
(4) 24, otherwise.”.
Section 2G1.3(b) is amended by striking subdivision (4) and inserting the following:
“(4) If (A) the offense involved the commission of a sex act or sexual contact; or (B) subsection (a)(3) or (a)(4) applies and the offense involved a commercial sex act, increase by 2 levels.”.
Section 2G1.3(b)(5) is amended by inserting “(A) subsection (a)(3) or (a)(4) applies; and (B)” after “If”.
The Commentary to § 2G1.3 captioned “Statutory Provisions” is amended by striking “2422(b),”.
The Commentary to § 2G1.3 is amended by striking “Background” and all that follows through the end of “Minor).”.
The Commentary to § 2G2.5 captioned “Statutory Provisions” is amended by inserting “§ ” after “18 U.S.C. § ”; and by inserting “, 2257A” after “2257”.
Chapter Two, Part G, Subpart Two, is amended by adding at the end the following new guideline and accompanying commentary:
(a) Base Offense Level: 35
(b) Specific Offense Characteristics
(1) If a victim (A) had not attained the age of 12 years, increase by 4 levels; or (B) had attained the age of 12 years but had not attained the age of 16 years, increase by 2 levels.
(2) If (A) the defendant was a parent, relative, or legal guardian of a minor victim; or (B) a minor victim was otherwise in the custody, care, or supervisory control of the defendant, increase by 2 levels.
(3) If the offense involved conduct described in 18 U.S.C. 2241(a) or (b), increase by 2 levels.
(4) If a computer or an interactive computer service was used in furtherance of the offense, increase by 2 levels.
Statutory Provision: 18 U.S.C. 2252A(g).
Application Notes:
1. Definitions.—For purposes of this guideline:
‘Computer’ has the meaning given that term in 18 U.S.C. 1030(e)(1).
‘Interactive computer service’ has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 230(f)(2)).
‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.
2. Application of Subsection (b)(2).—
(A) Custody, Care, or Supervisory Control.—Subsection (b)(2) is intended to have broad application and includes offenses involving a victim less than 18 years of age entrusted to the defendant, whether temporarily or permanently. For example, teachers, day care providers, baby-sitters, or other temporary caretakers are among those who would be subject to this enhancement. In determining whether to apply this enhancement, the court should look to the actual relationship that existed between the defendant and the minor and not simply to the legal status of the defendant-minor relationship.
(B) Inapplicability of Chapter Three Adjustment.—If the enhancement under subsection (b)(2) applies, do not apply § 3B1.3 (Abuse of Position of Trust or Use of Special Skill).
3. Application of Subsection (b)(3).—For purposes of subsection (b)(3), ‘conduct described in 18 U.S.C. 2241(a) or (b)’ is: (i) using force against the minor; (ii) threatening or placing the minor in fear that any person will be subject to death, serious bodily injury, or kidnapping; (iii) rendering the minor unconscious; or (iv) administering by force or threat of force, or without the knowledge or permission of the minor, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the minor to appraise or control conduct. This provision would apply, for example, if any dangerous weapon was used or brandished, or in a case in which the ability of the minor to appraise or control conduct was substantially impaired by drugs or alcohol.”.
Section 2G3.1(b) is amended by striking subdivision (2) and inserting the following:
“(2) If, with the intent to deceive a minor into viewing material that is harmful to minors, the offense involved the use of (A) a misleading domain name on the Internet; or (B) embedded words or digital images in the source code of a Web site, increase by 2 levels.”.
The Commentary to § 2G3.1 captioned “Statutory Provisions” is amended by inserting “, 2252C” after “2252B”.
The Commentary to § 2G3.1 captioned “Application Notes” is amended in Note 2 by inserting “or § 2252C” after “2252B”.
Section 2J1.2(b) is amended in subdivision (1) by striking “greater” and inserting “greatest”; by redesignating subdivisions (A) and (B) as subdivisions (B) and (C), respectively; by inserting before subdivision (B), as redesignated by this amendment, the following:
“(A) If the (i) defendant was convicted under 18 U.S.C. 1001; and (ii) statutory maximum term of eight years' imprisonment applies because the matter relates to sex offenses under 18 U.S.C. 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code, increase by 4 levels.”;
“(C) If the (i) defendant was convicted under 18 U.S.C. 1001 or 1505; and (ii) statutory maximum term of eight years' imprisonment applies because the matter relates to international terrorism or domestic terrorism, increase by 12 levels.”.
The Commentary to § 2J1.2 captioned “Statutory Provisions” is amended by striking “when the statutory maximum” and all that follows through “applicable,” and inserting the following:
“(when the statutory maximum term of eight years' imprisonment applies because the matter relates to international terrorism or domestic terrorism, or to sex offenses under 18 U.S.C. 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code),”.
The Commentary to § 2J1.2 captioned “Application Notes” is amended in Note 4 by inserting “or a particularly serious sex offense” after “face)”.
The Commentary to § 2J1.2 captioned “Application Notes” is amended in Note 5 by inserting “(B)” after “Subsection (b)(1)” each place it appears; and by inserting “(B)” after “under subsection (b)(1)”.
Section 3D1.2(d) is amended by inserting as a new line “§ 2A3.5;” before the line that begins “§§ 2B1.1”; and by inserting “(except § 2A3.5)” after “Chapter Two, Part A”.
The Commentary to § 4B1.5 captioned “Application Notes” is amended by striking Note 1 and inserting the following:
“1. Definition.—For purposes of this guideline, ‘minor’' means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.”.
The Commentary to § 4B1.5 captioned “Application Notes” is amended in Note 2 by inserting “or (iv) 18 U.S.C. 1591;” after “individual;”; and by striking “(iii)” after “through” and inserting “(iv)”.
The Commentary to § 4B1.5 captioned “Background” is amended by striking the first and second sentences and inserting: “This guideline applies to offenders whose instant offense of conviction is a sex offense committed against a minor and who present a continuing danger to the public.”.
Section 5B1.3(a)(9) is amended by inserting “(A) in a state in which the requirements of the Sex Offender Registration and Notification Act (
“(B) in a state in which the requirements of Sex Offender Registration and Notification Act apply, a sex offender shall (i) register, and keep such registration current, where the offender resides, where the offender is an employee, and where the offender is a student, and for the initial registration, a sex offender also shall register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence; (ii) provide information required by 42 U.S.C. 16914; and (iii) keep such registration current for the full registration period as set forth in 42 U.S.C. 16915;”.
Section 5B1.3(d)(7) is amended by adding at the end the following:
“(C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects, upon reasonable suspicion concerning a violation of a condition of probation or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions.”.
Section 5B1.3 is amended by adding at the end the following:
Application Note:
1. Application of Subsection (b)(9)(A) and (B).—Some jurisdictions continue to register sex offenders pursuant to the sex offender registry in place prior to July 27, 2006, the date of enactment of the Adam Walsh Act, which contained the Sex Offender Registration and Notification Act. In such a jurisdiction, subsection (b)(9)(A) will apply. In a jurisdiction that has implemented the requirements of the Sex Offender Registration and Notification Act, subsection (b)(9)(B) will apply. (
The Commentary to § 5D1.2 captioned “Application Notes” is amended by striking Note 1 and inserting:
“1. Definitions.—For purposes of this guideline:
‘Sex offense’ means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 109B of such title; (iii) chapter 110 of such title, not including a recordkeeping offense; (iv) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (v) an offense under 18 U.S.C. 1201; or (vi) an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (vi) of this note.
‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.”.
Section 5D1.3(a)(7) is amended by inserting “(A) in a state in which the requirements of the Sex Offender Registration and Notification Act (
“(B) in a state in which the requirements of Sex Offender Registration and Notification Act apply, a sex offender shall (i) register, and keep such registration current, where the offender resides, where the offender is an employee, and where the offender is a student, and for the initial registration, a sex offender also shall register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence; (ii) provide information required by 42 U.S.C. 16914; and (iii) keep such registration current for the full registration period as set forth in 42 U.S.C. 16915;”.
Section 5D1.3(d)(7) is amended by adding at the end the following:
”(C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects upon reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions.”.
Section 5D1.3 is amended by adding at the end the following:
Application Note:
1. Application of Subsection (b)(7)(A) and (B).—Some jurisdictions continue to register sex offenders pursuant to the sex offender registry in place prior to July 27, 2006, the date of enactment of the Adam Walsh Act, which contained the Sex Offender Registration and Notification Act. In such a jurisdiction, subsection (b)(7)(A) will apply. In a jurisdiction that has implemented the requirements of the Sex Offender Registration and Notification Act, subsection (b)(7)(B) will apply. (
Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1001 by striking “when the statutory” and all that follows through “applicable” and inserting the following:
“(when the statutory maximum term of eight years' imprisonment applies because the matter relates to international terrorism or domestic terrorism, or to sex offenses under 18 U.S.C. 1591 or chapters 109A, 109B, 110, or 117 of title 18, United States Code)”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. 2245 the following:
Reason for Amendment: This amendment responds to the Adam Walsh Child Protection and Safety Act of 2006 (the “Adam Walsh Act”), Pub. L. 109-248, which contained a directive to the Commission, created new sexual offenses, and enhanced penalties for existing sexual offenses. The amendment implements the directive by creating two new guidelines, §§ 2A3.5 (Criminal Sexual Abuse and Offenses Related to Registration as a Sex Offender) and 2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender). It further addresses relevant provisions in the Adam Walsh Act by making changes to Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse) and Part G (Offenses Involving Commercial Sex Acts, Sexual Exploitation of Minors, and Obscenity), § 2J1.2 (Obstruction of Justice), § 3D1.2 (Groups of Closely Related Counts), § 4B1.5 (Repeat and Dangerous Sex Offender Against Minors), § 5B1.3 (Conditions of Probation), § 5D1.2 (Term of Supervised Release), § 5D1.3 (Conditions of Supervised Release) and Appendix A (Statutory Index).
First, section 206 of the Adam Walsh Act amended 18 U.S.C. 2241(c) to add a new mandatory minimum term of imprisonment of 30 years for offenses related to the aggravated sexual abuse of a child under 12 years old, or of a child between 12 and 16 years old if force, threat, or other means was used. In response to the new mandatory minimum for these offenses, the amendment increases the base offense level at § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) from level 30 to level 38. The base offense level of 30 has been retained for all other offenses. At least one specific offense characteristic applied to every conviction under 18 U.S.C. 2241(c) sentenced under § 2A3.1 in fiscal year 2006. Accordingly, the mandatory minimum 360 months' imprisonment is expected to be reached or exceeded in every case with a base offense level of 38.
The amendment provides a new application note that precludes application of the specific offense characteristic at § 2A3.1(b)(1) regarding conduct described in 18 U.S.C. 2241(a) or (b) if the conduct that forms the basis for a conviction under 18 U.S.C. 2241(c) is that the defendant engaged in conduct described in 18 U.S.C. 2241(a) or (b) (force, threat, or other means). The amendment also precludes application of the specific offense characteristic for the age of a victim at § 2A3.1(b)(2) if the defendant was convicted under section 2241(c). The heightened base offense level of 38 takes into account the age of the victim. These instructions, therefore, avoid unwarranted double counting.
Second, section 207 of the Adam Walsh Act increased the statutory maximum term of imprisonment under 18 U.S.C. 2243(b) from 5 years to 15 years for the sexual abuse of a person in official detention or under custodial authority. In response to increased penalty, the amendment increases the base offense level from 12 to 14 in § 2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts). The amendment also adds a new definition of “minor” consistent with how this term is defined elsewhere in the guidelines manual. In addition, the amendment includes an application note precluding application of § 3B1.3 (Abuse of Position of Trust or Use of Special Skill) for these offenses because an abuse of position of trust is assumed in all such cases and, therefore, is built into the base offense level.
Third, section 206 of the Adam Walsh Act created a new subsection at 18 U.S.C. 2244. Section 2244(a)(5) provides a penalty of any term of years if the sexual conduct would have violated 18 U.S.C. 2241(c) had the contact been a sexual act. Section 2241(c) conduct involves the aggravated sexual abuse of a child under 12 years old or of a child between 12 and 16 years old if force, threat, or other means was used, as defined in 18 U.S.C. 2241(a) and (b). Prior to the Adam Walsh Act, the penalty for offenses involving children under 12 years old was “twice that otherwise provided,” and the penalty for sexual contact involving behavior described in 18 U.S.C. 2241 was a statutory maximum term of imprisonment of 10 years.
The amendment addresses this new offense by increasing the minimum offense level in the age enhancement in subsection (b)(1) of § 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact) from level 20 to level 22.
Fourth, section 141 of the Adam Walsh Act created a new offense under 18 U.S.C. 2250(a) for the failure to register as a sex offender. The basic offense carries a statutory maximum term of imprisonment of 10 years. Section 141 also included a directive to the Commission that when promulgating guidelines for the offense, to consider, among other factors, the seriousness of the sex offender's conviction that gave rise to the requirement to register; relevant further offense conduct during the period for which the defendant failed to register; and the offender's criminal history.
The amendment creates a new guideline, § 2A3.5 (Failure to Register as a Sex Offender), to address the directive. The new guideline provides three alternative base offense levels based on the tiered category of the sex offender: level 16 if the defendant was required to register as a Tier III offender; level 14 if the defendant was required to register as a Tier II offender; and level 12 if the defendant was required to register as a Tier I offender.
The amendment also provides two specific offense characteristics. First, subsection (b)(1) provides a tiered enhancement to address criminal conduct committed while the defendant is in a failure to register status. Specifically, § 2A3.5(b)(1) provides a six-level increase if, while in a failure to register status, the defendant committed a sex offense against an adult, a six-level increase if the defendant committed a felony offense against a minor, and an
Additionally, the amendment adds § 2A3.5 to the list of offenses that are considered groupable under § 3D1.2(d) because the failure to register offense is an ongoing and continuous offense.
Fifth, section 141 of the Adam Walsh Act created two new aggravated offenses relating to the registration as a sex offender. Section 141 of the Act created 18 U.S.C. 2250(c), which carries a mandatory minimum term of imprisonment of 5 years and a statutory maximum term of imprisonment of 30 years if a defendant commits a crime of violence while in a failure to register status, with the sentence to be consecutive to the punishment provided for the failure to register. Section 702 of the Adam Walsh Act created a new offense at 18 U.S.C. 2260A that prohibits the commission of various enumerated offenses while in a failure to register status. The penalty for this offense is a mandatory term of imprisonment of 10 years to be imposed consecutively to the underlying offense.
The amendment creates a new guideline at § 2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender) to address these new offenses. The new guideline provides that for offenses under section 2250(c), the guideline sentence is the minimum term of imprisonment required by statute, and for offenses under section 2260A, the guideline sentence is the term of imprisonment required by statute. Chapters Three and Four are not to apply. This is consistent with how the guidelines treat other offenses that carry both a specified term of imprisonment and a requirement that such term be imposed consecutively. See §§ 3D1.1 (Procedure for Determining Offense Level on Multiple Counts) and 5G1.2 (Sentencing on Multiple Counts of Conviction).
The guideline includes an application note that provides an upward departure stating that a sentence above the minimum term required by section 2250(c) is an upward departure from the guideline sentence. An upward departure may be warranted, for example, in a case involving a sex offense committed against a minor or if the offense resulted in serious bodily injury to a minor.
Sixth, section 208 of the Adam Walsh Act added a new mandatory minimum term of imprisonment of 15 years under 18 U.S.C. 1591(b)(1) for sex trafficking of an adult by force, fraud, or coercion. In response, the amendment provides a new base offense level of 34 in § 2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor) if the offense of conviction is 18 U.S.C. 1591(b)(1), but retains a base offense level of 14 for all other offenses. In addition, the amendment limits application of the specific offense characteristic at § 2G1.1(b)(1) that applies if the offense involved fraud or coercion only to those offenses receiving a base offense level of 14. Offenses under 18 U.S.C. 1591(b)(1) necessarily involve fraud and coercion and, therefore, such conduct is built into the heightened base offense level of 34. This limitation thus avoids unwarranted double counting.
Seventh, section 208 of the Adam Walsh Act added a new mandatory minimum term of imprisonment of 15 years under 18 U.S.C. 1591(b)(1) for sex trafficking of children under 14 years of age and added a new mandatory minimum term of imprisonment of 10 years and increased the statutory maximum term of imprisonment from 40 years to life under 18 U.S.C. 1591(b)(2) for sex trafficking of children who had attained the age of 14 years but had not attained the age of 18 years. Further, the Adam Walsh Act increased the mandatory minimum term of imprisonment from 5 years to 10 years and increased the statutory maximum term of imprisonment from 30 years to life under both 18 U.S.C. 2422(b), for persuading or enticing any person who has not attained the age of 18 years to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, and 18 U.S.C. 2423(a), for transporting a person who has not attained the age of 18 years in interstate or foreign commerce, with the intent that the person engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.
In response, the amendment provides alternative base offense levels in § 2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) based on the statute of conviction and the conduct described in that conviction. For convictions under 18 U.S.C. 1591(b)(1), the base offense level is 34. For convictions under 18 U.S.C. 1591(b)(2), the base offense level is 30.
The amendment further provides a base offense level of 28 for convictions under 18 U.S.C. § 2422(b) and 2423(a). The two-level enhancement for the use of a computer at § 2G1.3(b)(3) applied to 95 percent of offenders convicted under 18 U.S.C. 2422(b) and sentenced under § 2G1.3 in fiscal year 2006. In addition, the two-level enhancement for the offense involving a sexual act or sexual contact at § 2G1.3(b)(4) applied to 95 percent of offenders convicted under 18 U.S.C. 2423(a) and sentenced under this guideline in fiscal year 2006. With application of either enhancement, the mandatory minimum term of imprisonment of 120 months will be reached in the majority of convictions under 18 U.S.C. 2422(b) and 2423(a), before application of other guidelines adjustments.
Further, the amendment addresses the interaction of two specific offense characteristics with the alternative base offense levels. First, every conviction under 18 U.S.C. 1591 necessarily involves a commercial sex act. With the base offense levels being determined based on the statute of conviction, the amendment clarifies that § 2G1.3(b)(4)(B), which provides a two-level enhancement if the offense involved a commercial sex act, does not apply if the defendant is convicted under 18 U.S.C. 1591. Second, the amendment precludes application of the age enhancement in § 2G1.3(b)(5) if the base offense level is determined under subsection (a)(1) of § 2G1.3 for a conviction under 18 U.S.C. 1591(b)(1). The base offense level provided by subsection (a)(1) of § 2G1.3 takes into
Eighth, section 503 of the Adam Walsh Act created a new section, 18 U.S.C. 2257A, adopting new recordkeeping obligations for the production of any book, magazine, periodical, film, videotape, or digital image that contains a visual depiction of simulated sexually explicit conduct. Section 2257A has a statutory maximum of one year imprisonment for the failure to comply with the recordkeeping requirements and a statutory maximum term of imprisonment of five years if the violation was to conceal a substantive offense that involves either causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction or trafficking in material involving the sexual exploitation of a minor. The new offense is similar to 18 U.S.C. 2257, which is referenced to § 2G2.5 (Recordkeeping Offenses Involving the Production of Sexually Explicit Materials; Failure to Provide Required Marks in Commercial Electronic Mail). Accordingly, the amendment refers the new offense to § 2G2.5.
Ninth, section 701 of the Adam Walsh Act created a new offense in 18 U.S.C. 2252A(g) that prohibits engaging in child exploitation enterprises, defined as violating 18 U.S.C. 1591, 1201 (if the victim is a minor), chapter 109A (involving a minor victim), chapter 110 (except for 18 U.S.C. 2257 and 2257A), or chapter 117 (involving a minor victim), as part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and committing those offenses in concert with three or more other people. The statute provides a mandatory minimum term of imprisonment of 20 years.
The amendment creates a new guideline at § 2G2.6 (Child Exploitation Enterprises) to cover this new offense. The guideline provides a base offense level of 35 and four specific offense characteristics. The Commission anticipates these offenses typically will involve conduct encompassing at least one of the specific offense characteristics, resulting in an offense level of at least level 37. Thus, the mandatory minimum term of imprisonment of 240 months typically is expected to be reached or exceeded, before application of other guideline adjustments.
Tenth, section 206 of the Adam Walsh Act increased the statutory maximum term of imprisonment from 4 years to 10 years under 18 U.S.C. 2252B(b) for knowingly using a misleading domain name with the intent to deceive a minor into viewing material harmful to minors on the Internet. In addition, section 703 of the Act created a new section, 18 U.S.C. 2252C, that carries a statutory maximum term of imprisonment of 10 years for knowingly embedding words or digital images into the source code of a Web site with the intent to deceive a person into viewing material constituting obscenity. Section 2252C(b) carries a statutory maximum term of imprisonment of 20 years for knowingly embedding words or digital images into the source code of a Web site with the intent to deceive a minor into viewing material harmful to minors on the Internet.
In response to the new offense, the amendment expands the scope of subsection (b)(2) of § 2G3.1 (Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to a Minor; Misleading Domain Names) by adding to this enhancement “embedded words or digital images into the source code on a Web site.”
Eleventh, section 141 of the Adam Walsh Act added a new provision in 18 U.S.C. 1001 that carries a statutory maximum term of imprisonment of 8 years for falsifying or covering up by any scheme or making materially false or fraudulent statements or making or using any false writings or documents that relate to offenses under chapters 109A, 109B, 110, and 117, and under section 1591 of chapter 77. The amendment adds a new specific offense characteristic at subsection (b)(1)(A) of § 2J1.2 (Obstruction of Justice) enhancing the offense level by four levels if the defendant was convicted under 18 U.S.C. 1001 and the statutory maximum term of 8 years' imprisonment applies because the matter relates to sex offenses. The amendment also added language to Application Note 4 stating an upward departure may be warranted under the guideline in a case involving a particularly serious sex offense.
Twelfth, section 206 of the Adam Walsh Act added 18 U.S.C. 1591 to the list of offenses for which a defendant is to be sentenced to life under 18 U.S.C. 3559(e)(2)(A). The amendment adds 18 U.S.C. 1591 to the list of instant offenses of convictions that are covered sex crimes under § 4B1.5.
Thirteenth, section 141 of the Adam Walsh Act amended 18 U.S.C. 3563 and 3583. The amendment adds a new subdivision to (a)(9) of § 5B1.3 and to (a)(7) of § 5D1.3 to require a defendant to comply with the new registration requirements provided by the Adam Walsh Act. The amendment also modifies the language in §§ 5B1.3(a)(9) and 5D1.3(a)(7) relating to defendants convicted of a sexual offense described in 18 U.S.C. 4042(c)(4). Not all states have implemented the new requirements, continuing to register sex offenders pursuant to the sex offender registry in place prior to July 27, 2006, the date of enactment of the Adam Walsh Act. Thus, it is necessary to maintain the language in the guidelines providing for conditions of probation and supervised release for those offenders.
Fourteenth, section 141 of the Act amended 18 U.S.C. 3583(k), which provides that the authorized term of supervised release for any offense under enumerated sex offenses is any term of years or life. In response, the amendment adds offenses under chapter 109B and sections 1201 and 1591 of title 18 United States Code or 18 U.S.C. § 1201 and 1591 to the definition of sex offense under § 5D1.2(b)(2) for which the length of the term of supervised release shall be not less than the minimum term of years specified for the offense and may be up to life.
Finally, the amendment provides a definition of “minor” in relevant guidelines that is consistent with how this term is defined elsewhere in the guidelines. Outdated background commentary also is deleted by this amendment.
Amendment: Section 2B1.1(b)(13)(C) is amended by striking “(b)(12)(B)” and inserting “(b)(13)(B)”.
Section 2L1.1(b)(1) is amended by striking “(a)(2)” and inserting “(a)(3)”.
Reason for Amendment: This amendment corrects typographical errors in subsection (b)(13)(C) of § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) and subsection (b)(1) of § 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien).
The typographical error to § 2B1.1(b)(13)(C) stems from redesignations made to § 2B1.1 in 2004 when the Commission added a new subsection (b)(7) in response to the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”), Pub. L. 108-187. (USSG App. C Amendment 665) (November 1, 2004).
The typographical error in § 2L1.1(b)(1) stems from redesignations
The Commission has determined that this amendment should be applied retroactively because (A) the purpose of the amendment is to correct typographical errors; (B) the number of cases involved is minimal even given the potential change in guideline ranges (i.e., ensuring application of the maximum increase of 8 levels in § 2B1.1(b)(13)(C) and providing correct application of the three-level reduction in § 2L1.1(b)(1)); and (C) the amendment would not be difficult to apply retroactively. These factors, combined, meet the standards set forth in the relevant background commentary to § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range).
Amendment: Section 2B2.3(b)(1) is amended by redesignating subdivision (F) as subdivision (G); and by inserting “(F) at Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration;” after “residence;”.
The Commentary to § 2B2.3 captioned “Statutory Provisions” is amended by inserting “38 U.S.C. 2413;” after “1036;”.
The Commentary to § 2E3.1 captioned “Statutory Provisions” is amended by inserting “; 31 U.S.C. 5363” after “1955”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 31 U.S.C. 5332 the following:
Reason for Amendment: This amendment addresses two new offenses, 38 U.S.C. 2413, which was created by the Respect for America's Fallen Heroes Act, Pub. L. 109-228, and 31 U.S.C. 5363, which was created by the Security and Accountability for Every Port Act of 2006, Pub. L. 109-347.
The new offense at 38 U.S.C. 2413 prohibits certain demonstrations at Arlington National Cemetery and at cemeteries controlled by the National Cemetery Administration and provides a statutory maximum penalty of imprisonment of not more than one year, a fine, or both. The amendment references convictions under 38 U.S.C. 2413 to § 2B2.3 (Trespass) and expands the scope of the two-level enhancement at § 2B2.3(b)(1) for trespass offenses that occur in certain locations to include trespass at Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration. The Commission determined that the need to protect the final resting places of the nation's war dead and the need to discourage violent confrontations at the funerals of veterans who are killed in action justifies expanding the scope of the enhancement to cover such conduct.
The new offense at 31 U.S.C. 5363 prohibits acceptance of any financial instrument for unlawful Internet gambling and provides a statutory maximum term of imprisonment of five years. The amendment references convictions under 31 U.S.C. 5363 to § 2E3.1 (Gambling Offenses).
Amendment: The amendment to § 2B5.3, effective September 12, 2006 (
Section 2B5.3(b)(3) is amended by inserting “(A)” before “offense involved” and by inserting “; or (B) defendant was convicted under 17 U.S.C. 1201 and 1204 for trafficking in circumvention devices” after “items”.
The Commentary to § 2B5.3 captioned “Statutory Provisions” is amended by inserting “§ ” after “17 U.S.C. “; and by inserting “, 1201, 1204” after “506(a)”.
The Commentary to § 2B5.3 captioned “Application Notes” is amended in Note 1 by inserting after “Definitions.—For purposes of this guideline:” the following paragraph:
“ ‘Circumvention devices’ are devices used to perform the activity described in 17 U.S.C. § 1201(a)(3)(A) and 1201(b)(2)(A).”.
The Commentary to § 2B5.3 captioned “Application Notes” is amended in Note 2(A) by adding at the end the following:
“(vii) A case under 18 U.S.C. 2318 or § 2320 that involves a counterfeit label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature (I) that has not been affixed to, or does not enclose or accompany a good or service; and (II) which, had it been so used, would appear to a reasonably informed purchaser to be affixed to, enclosing or accompanying an identifiable, genuine good or service. In such a case, the ‘infringed item’ is the identifiable, genuine good or service.
(viii) A case under 17 U.S.C. § 1201 and 1204 in which the defendant used a circumvention device. In such an offense, the ‘retail value of the infringed item’ is the price the user would have paid to access lawfully the copyrighted work, and the ‘infringed item’ is the accessed work.”.
The Commentary to § 2B5.3 captioned “Application Notes” is amended in Note 3 by striking “shall” and inserting “may”.
The Commentary to § 2B5.3 captioned “Application Notes” is amended in Note 4 by striking “Upward” before “Departure”; by inserting “or overstates” after “understates”; and by striking “an upward” each place it appears and inserting “a”; and by adding at the end the following:
“(C) The method used to calculate the infringement amount is based upon a formula or extrapolation that results in an estimated amount that may substantially exceed the actual pecuniary harm to the copyright or trademark owner.”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 17 U.S.C. 506(a) the following new lines:
Reason for Amendment: This amendment re-promulgates as permanent the temporary, emergency amendment (effective Sept. 12, 2006) that implemented the emergency directive in section 1(c) of the Stop Counterfeiting in Manufactured Goods Act, Pub. L. 109-181 (2006). The directive, which required the Commission to promulgate an amendment under emergency amendment authority by September 12, 2006, instructs the Commission to “review, and if appropriate, amend the Federal sentencing guidelines and policy statements applicable to persons convicted of any offense under section 2318 or 2320 of title 18, United States Code.”
In carrying out [the directive], the United States Sentencing Commission shall determine whether the definition of “infringement amount” set forth in application note 2 of section 2B5.3 of the Federal sentencing guidelines is adequate to address situations in which the defendant has been convicted of one of the offenses [under section 2318 or 2320 of title 18, United States Code,] and the item in which the defendant trafficked was not an infringing item but rather was intended to facilitate infringement, such as an anti-circumvention device, or the item in which the defendant trafficked was infringing and also was intended to facilitate infringement in another good or service, such as a counterfeit label, documentation, or packaging, taking into account cases such as
The amendment adds subdivision (vii) to Application Note 2(A) of § 2B5.3 (Criminal Infringement of Copyright or Trademark) to provide that the infringement amount is based on the retail value of the infringed item in a case under 18 U.S.C. 2318 or 2320 that involves a counterfeit label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature (i) that has not been affixed to, or does not enclose or accompany a good or service; and (II) which, had it been so used, would appear to a reasonably informed purchaser to be affixed to, enclosing or accompanying an identifiable, genuine good or service. In such a case, the “infringed item” is the identifiable, genuine good or service.
In addition to re-promulgating the emergency amendment, the amendment responds to the directive by addressing violations of 17 U.S.C. 1201 and 1204 involving circumvention devices. The amendment addresses circumvention devices in two ways. First, the amendment adds an application note regarding the determination of the infringement amount in cases under 17 U.S.C. 1201 and 1204 in which the defendant used a circumvention device and thus obtained unauthorized access to a copyrighted work. Such an offense would involve an identifiable copyrighted work. Accordingly, consistent with the existing rules in § 2B5.3, the “retail value of the infringed item” would be used for purposes of determining the infringement amount. The amendment adds subsection (viii) to Application Note 2(A), and explains that the “retail value of the infringed item” is the price the user would have paid to access lawfully the copyrighted work, and the “infringed item” is the accessed work. If the defendant violated 17 U.S.C. 1201 and 1204 by conduct that did not include use of a circumvention device, Application Note 2(B) would apply by default. Thus, as it does in any case not otherwise covered by Application Note 2(A), the infringement amount would be determined by reference to the value of the infringing item, which in these cases would be the circumvention device.
Second, the amendment expands the sentencing enhancement in § 2B5.3(b)(3) to include convictions under 17 U.S.C. 1201 and 1204 for trafficking in circumvention devices. Prior to the amendment, § 2B5.3(b)(3) provided a two-level enhancement and a minimum offense level of 12 for cases involving the manufacture, importation, or uploading of infringing items. The purpose of the enhancement in § 2B5.3(b)(3) is to provide greater punishment for defendants who put infringing items into the stream of commerce in a manner that enables others to infringe the copyright or trademark. The Commission determined that trafficking in circumvention devices similarly enables others to infringe a copyright and warrants greater punishment.
The amendment also strikes language in Application Note 3 mandating an adjustment under § 3B1.3 (Abuse of Position of Trust or Use of Special Skill) in every case in which the defendant de-encrypted or otherwise circumvented a technological security measure to gain initial access to an infringed item. Instead, the note indicates that application of the adjustment may be appropriate in such a case because the Commission determined that not every case involving de-encryption or circumvention requires the level of skill contemplated by the special skill adjustment.
Finally, the amendment modifies Application Note 4 to address downward departures. The addition of this language recognizes that in some instances the method for calculating the infringement amount may be based on a formula or extrapolation that overstates the actual pecuniary harm to the copyright or trademark owner. This language is analogous to departure language in § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States) and thus promotes consistency between these two economic crime guidelines.
Amendment: Section 2D1.1(b) is amended by redesingating subdivisions (8) and (9), as subdivisions (10) and (11), respectively; by redesignating subdivisions (5) through (7) as subdivisions (6) through (8), respectively; by inserting after subdivision (4) the following:
“(5) If the defendant is convicted under 21 U.S.C. 865, increase by 2 levels.”;
“(9) If the defendant was convicted under 21 U.S.C. 841(g)(1)(A), increase by 2 levels.”.
Section 2D1.1(b) is amended in subdivision (10), as redesignated by this amendment, by striking “greater” and inserting “greatest”; by redesignating subdivision (C) as subdivision (D); and by striking subdivision (B) and inserting the following:
“(B) If the defendant was convicted under 21 U.S.C. 860a of distributing, or possessing with intent to distribute, methamphetamine on premises where a minor is present or resides, increase by 2 levels. If the resulting offense level is less than level 14, increase to level 14.
(C) If—
(i) the defendant was convicted under 21 U.S.C. 860a of manufacturing, or possessing with intent to manufacture, methamphetamine on premises where a minor is present or resides; or
(ii) the offense involved the manufacture of amphetamine or methamphetamine and the offense created a substantial risk of harm to (I) human life other than a life described in subdivision (D); or (II) the environment, increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27.”.
Section 2D1.1(c)(1) is amended by inserting “30,000,000 units or more of Ketamine;” after the line referenced to “Hashish Oil”.
Section 2D1.1(c)(2) is amended by inserting “At least 10,000,000 but less than 30,000,000 units of Ketamine;” after the line referenced to “Hashish Oil”.
Section 2D1.1(c)(3) is amended by inserting “At least 3,000,000 but less than 10,000,000 units of Ketamine;” after the line referenced to “Hashish Oil”.
Section 2D1.1(c)(4) is amended by inserting “At least 1,000,000 but less than 3,000,000 units of Ketamine;” after the line referenced to “Hashish Oil”.
Section 2D1.1(c)(5) is amended by inserting “At least 700,000 but less than 1,000,000 units of Ketamine;” after the line referenced to “Hashish Oil”.
Section 2D1.1(c)(6) is amended by inserting “At least 400,000 but less than 700,000 units of Ketamine;” after the line referenced to “Hashish Oil”.
Section 2D1.1(c)(7) is amended by inserting “At least 100,000 but less than 400,000 units of Ketamine;” after the line referenced to “Hashish Oil”.
Section 2D1.1(c)(8) is amended by inserting “At least 80,000 but less than 100,000 units of Ketamine;” after the line referenced to “Hashish Oil”.
Section 2D1.1(c)(9) is amended by inserting “At least 60,000 but less than 80,000 units of Ketamine;” after the line referenced to “Hashish Oil”.
Section 2D1.1(c)(10) is amended by inserting “At least 40,000 but less than 60,000 units of Ketamine;” after the line referenced to “Hashish Oil”; and by inserting “(except Ketamine)” after “Schedule III substances”.
Section 2D1.1(c)(11) is amended by inserting “At least 20,000 but less than
Section 2D1.1(c)(12) is amended by inserting “At least 10,000 but less than 20,000 units of Ketamine;” after the line referenced to “Hashish Oil”; and by inserting “(except Ketamine)” after “Schedule III substances”.
Section 2D1.1(c)(13) is amended by inserting “At least 5,000 but less than 10,000 units of Ketamine;” after the line referenced to “Hashish Oil”; and by inserting “(except Ketamine)” after “Schedule III substances”.
Section 2D1.1(c)(14) is amended by inserting “At least 2,500 but less than 5,000 units of Ketamine;” after the line referenced to “Hashish Oil”; and by inserting “(except Ketamine)” after “Schedule III substances”.
Section 2D1.1(c)(15) is amended by inserting “At least 1,000 units but less than 2,500 units of Ketamine; “ after the line referenced to “Hashish Oil”; and by inserting “(except Ketamine)” after “Schedule III substances”.
Section 2D1.1(c)(16) is amended by inserting “At least 250 units but less than 1,000 units of Ketamine;” after the line referenced to “Hashish Oil”; and by inserting “(except Ketamine)” after “Schedule III substances”.
Section 2D1.1(c)(17) is amended by inserting “Less than 250 units of Ketamine;” after the line referenced to “Hashish Oil”; and by inserting “(except Ketamine)” after “Schedule III substances”.
The Commentary to § 2D1.1 captioned “Statutory Provisions” is amended by inserting “(g), 860a, 865,” after “(3), (7),”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the section captioned “Drug Equivalency Tables” in the subdivision captioned “Schedule III Substances” by inserting in the heading “(except ketamine)” after “Substances”;
“Date Rape Drugs (except flunitrazipam, GHB, or ketamine)
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 19 by striking “(b)(8)” each place it appears and inserting “(b)(10)”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 20 in subdivision (A) by striking “(b)(8)(B) or (C)” and inserting “(b)(10)(C)(ii) or (D)”; and in subdivision (B) by striking “(b)(8)(C)” and inserting “(b)(10)(D)”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 21 by striking “(9)” each place it appears and inserting “(11)”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended by redesignating Notes 22 through 25 as Notes 23 through 26, respectively; and by inserting after Note 21 the following:
“22. Imposition of Consecutive Sentence for 21 U.S.C. 860a or 865.—Sections 860a and 865 of title 21, United States Code, require the imposition of a mandatory consecutive term of imprisonment of not more than 20 years and 15 years, respectively. In order to comply with the relevant statute, the court should determine the appropriate ‘total punishment’ and divide the sentence on the judgment form between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U.S.C. 860a or 865, specifying the number of months to be served consecutively for the conviction under 21 U.S.C. 860a or 865. For example, if the applicable adjusted guideline range is 151-188 months and the court determines a ‘total punishment’ of 151 months is appropriate, a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U.S.C. 860a or 865 would achieve the ‘total punishment’ in a manner that satisfies the statutory requirement of a consecutive sentence.”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 23, as redesignated by this amendment, by striking “(5)” each place it appears and inserting “(6)”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 25, as redesignated by this amendment, by striking “(6)” each place it appears and inserting “(7)”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 26, as redesignated by this amendment, by striking “(7)” each place it appears and inserting “(8)”.
The Commentary to § 2D1.1 captioned “Background” is amended in the ninth paragraph by striking “(b)(8)” and inserting “(b)(10)”; and in the last paragraph by striking “(b)(8)(B) and (C)” and inserting “(b)(10)(C)(ii) and (D)”.
Section 2D1.11(b) is amended by adding at the end the following subdivision:
“(5) If the defendant is convicted under 21 U.S.C. 865, increase by 2 levels.”.
The Commentary to § 2D1.11 captioned “Statutory Provisions” is amended by inserting “865,” after “(f)(1),”.
The Commentary to § 2D1.11 captioned “Application Notes” is amended by adding at the end the following:
“8. Imposition of Consecutive Sentence for 21 U.S.C. 865.—Section 865 of title 21, United States Code, requires the imposition of a mandatory consecutive term of imprisonment of not more than 15 years. In order to comply with the relevant statute, the court should determine the appropriate ‘total punishment’ and, on the judgment form, divide the sentence between the sentence attributable to the underlying drug offense and the sentence attributable to 21 U.S.C. 865, specifying the number of months to be served consecutively for the conviction under 21 U.S.C. 865. For example, if the applicable adjusted guideline range is 151-188 months and the court determines a ‘total punishment’ of 151 months is appropriate, a sentence of 130 months for the underlying offense plus 21 months for the conduct covered by 21 U.S.C. 865 would achieve the ‘total punishment’ in a manner that satisfies the statutory requirement of a consecutive sentence.”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 21 U.S.C. 841(f)(1) the following:
Reason for Amendment: This amendment responds to the new offenses created by the USA PATRIOT Improvement and Reauthorization Act of 2005 (the “PATRIOT Reauthorization Act”), Pub. L. 109-177, and the Adam Walsh Child Protection and Safety Act of 2006 (the “Adam Walsh Act”), Pub. L. 109-248.
First, the amendment addresses section 731 of the PATRIOT Reauthorization Act, which created a new offense at 21 U.S.C. 865. The new offense provides a mandatory consecutive sentence of 15 years' imprisonment for smuggling of methamphetamine or its precursor chemicals into the United States by a person enrolled in, or acting on behalf of someone or some entity enrolled in, any dedicated commuter lane, alternative or accelerated inspection system, or other facilitated entry program administered by the federal government for use in entering the United States. The amendment refers
Second, the amendment modifies § 2D1.1 to address the new offense in 21 U.S.C. 841(g) (Internet Sales of Date Rape Drugs) created by the Adam Walsh Act. This offense, which is punishable up to statutory maximum term of imprisonment of 20 years, prohibits the use of the Internet to distribute a date rape drug to any person, “knowing or with reasonable cause to believe that—(A) The drug would be used in the commission of criminal sexual conduct; or (B) the person is not an authorized purchaser.” The statute defines “date rape drug” as “(i) gamma hydroxybutyric acid (GHB) or any controlled substance analogue of GHB, including gamma butyrolactone (GBL) or 1,4-butanediol; (ii) ketamine; (iii) flunitrazipam; or (iv) any substance which the Attorney General designates * * * to be used in committing rape or sexual assault.” The amendment provides a new two-level enhancement in § 2D1.1(b)(9) that is tailored to focus on the more serious conduct covered by the new statute, specifically conviction under 21 U.S.C. 841(g)(A), which covers individuals who know or have reasonable cause to believe the drug would be used in the commission of criminal sexual conduct.
Third, the amendment eliminates the maximum base offense level of level 20 for ketamine offenses. Ketamine is a Schedule III controlled substance. The Drug Quantity Table at § 2D1.1(c) provides a maximum offense level of 20 for most Schedule III substances because such substances are subject to a statutory maximum term of imprisonment of 5 years. If a defendant is convicted under 21 U.S.C. 841(g) for distributing ketamine, however, the defendant is subject to a statutory maximum term of imprisonment of 20 years. Accordingly, the amendment modifies the Drug Quantity Table in order to allow for appropriate sentencing of 21 U.S.C. 841(g) offenses involving larger quantities of ketamine that correspond to offense levels greater than level 20. This approach is consistent with how other drug offenses with a statutory maximum term of imprisonment of 20 years are penalized and with how other date rape drugs are penalized. The amendment also provides a marihuana equivalency in Application Note 10 for ketamine (1 unit of ketamine = 1 gram of marihuana).
Fourth, the amendment adds to § 2D1.1, Application Note 10, a new drug equivalency for 1,4-butanediol (BD) and gamma butyrolactone (GBL), both of which are included in the definition of date rape drugs under 21 U.S.C. 841(g). Neither is a controlled substance. The drug equivalency is 1 ml of BD or GBL equals 8.8 grams of marihuana. The Commission has received testimony that both substances are at least equipotent as GHB, which is punished at the same marihuana equivalency.
Fifth, the amendment addresses the new offense in 21 U.S.C. 860a (Consecutive sentence for manufacturing or distributing, or possessing with intent to manufacture or distribute, methamphetamine on premises where children are present or reside), created by the PATRIOT Reauthorization Act. The new offense provides that a term of not more than 20 years' imprisonment is to be imposed, in addition to any other sentence imposed, for manufacturing, distributing, or possessing with the intent to manufacture or distribute, methamphetamine on a premises where a minor is present or resides. The amendment modifies § 2D1.1(b)(8)(C) to provide a two-level increase (with a minimum offense level of 14) if the defendant is convicted under 21 U.S.C. 860a involving the distribution or possession with intent to distribute methamphetamine and a three-level increase (with a minimum offense level of 27) if the defendant is convicted under 21 U.S.C. 860a involving the manufacture or possession with intent to manufacture methamphetamine.
To account for the spectrum of harms created by methamphetamine offenses, and to address the specific harms created by 21 U.S.C. 860a, the amendment builds on the “substantial risk enhancement.” This multi-tiered enhancement was added to § 2D1.1 in 2000 in response to the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106-310, Title XXXVI.
The Commission determined that distributing, or possessing with the intent to distribute, methamphetamine on a premises where a minor is present or resides presents a greater harm than discharging a hazardous substance into the environment, but is a lesser harm than the substantial risk of harm to adults or to the environment created by the manufacture of methamphetamine. Therefore, the amendment adds a new tier to the enhancement in the new subdivision (b)(10)(B) in order to account for this conduct. A defendant convicted under 21 U.S.C. 860a for distributing, or possessing with the intent to distribute, methamphetamine on a premises where a minor is present or resides will receive a two-level enhancement, with a minimum offense level of 14.
To address the overlap of conduct covered by the enhancement for the substantial risk of harm to the life of a minor and the new offense of manufacturing, or possessing with the intent to manufacture, methamphetamine on a premises where a minor is present or resides, a three-level enhancement and a minimum offense level of level 27 will apply in a case in which a minor is present, but in which the offense did not create a substantial risk of harm to the life of a minor. In any methamphetamine manufacturing offense which creates a substantial risk of harm to the life of a minor, a six-level enhancement and a minimum offense level of level 30 will apply.
Sixth, the amendment updates Appendix A (Statutory Index) to include references to the new offenses created by the PATRIOT Reauthorization and Adam Walsh Acts.
Amendment: Section 2D1.1(c)(1) is amended by striking “1.5 KG or more of Cocaine Base” and inserting “4.5 KG or more of Cocaine Base”.
Section 2D1.1(c)(2) is amended by striking “At least 500 G but less than 1.5 KG of Cocaine Base” and inserting “At least 1.5 KG but less than 4.5 KG of Cocaine Base”.
Section 2D1.1(c)(3) is amended by striking “At least 150 G but less than 500 G of Cocaine Base” and inserting “At least 500 G but less than 1.5 KG of Cocaine Base”.
Section 2D1.1(c)(4) is amended by striking “At least 50 G but less than 150 G of Cocaine Base” and inserting “At least 150 G but less than 500 G of Cocaine Base”.
Section 2D1.1(c)(5) is amended by striking “At least 35 G but less than 50 G of Cocaine Base” and inserting “At least 50 G but less than 150 G of Cocaine Base”.
Section 2D1.1(c)(6) is amended by striking “At least 20 G but less than 35 G of Cocaine Base” and inserting “At least 35 G but less than 50 G of Cocaine Base”.
Section 2D1.1(c)(7) is amended by striking “At least 5 G but less than 20 G of Cocaine Base” and inserting “At least 20 G but less than 35 G of Cocaine Base”.
Section 2D1.1(c)(8) is amended by striking “At least 4 G but less than 5 G of Cocaine Base” and inserting “At least 5 G but less than 20 G of Cocaine Base”.
Section 2D1.1(c)(9) is amended by striking “At least 3 G but less than 4 G of Cocaine Base” and inserting “At least 4 G but less than 5 G of Cocaine Base”.
Section 2D1.1(c)(10) is amended by striking “At least 2 G but less than 3 G of Cocaine Base” and inserting “At least 3 G but less than 4 G of Cocaine Base”.
Section 2D1.1(c)(11) is amended by striking “At least 1 G but less than 2 G of Cocaine Base” and inserting “At least 2 G but less than 3 G of Cocaine Base”.
Section 2D1.1(c)(12) is amended by striking “At least 500 MG but less than 1 G of Cocaine Base” and inserting “At least 1 G but less than 2 G of Cocaine Base”.
Section 2D1.1(c)(13) is amended by striking “At least 250 MG but less than 500 MG of Cocaine Base” and inserting “At least 500 MG but less than 1 G of Cocaine Base”.
Section 2D1.1(c)(14) is amended by striking “Less than 250 MG of Cocaine Base” and inserting “Less than 500 MG of Cocaine Base”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the first paragraph by inserting before “The Commission has used the sentences” the following:
“Use of Drug Equivalency Tables.—
(A) Controlled Substances Not Referenced in Drug Quantity Table.—”;
“(B) Combining Differing Controlled Substances (Except Cocaine Base).—The Drug Equivalency Tables also provide”;
“To determine a single offense level in a case involving cocaine base and other controlled substances,
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 in the subdivision captioned “Examples:” by striking “Examples:” and inserting the following:
“(C) Examples for Combining Differing Controlled Substances (Except Cocaine Base).—”;
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 by inserting after example (iv), as redesignated by this amendment, the following:
“(D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other Controlled Substances.—
(i) In General.—If the offense involves cocaine base (‘crack') and one or more other controlled substance, determine the base offense level as follows:
(I) Determine the combined base offense level for the other controlled substance or controlled substances as provided in subdivision (B) of this note.
(II) Use the combined base offense level determined under subdivision (B) of this note to obtain the appropriate marihuana equivalency for the cocaine base involved in the offense using the following table:
(III) Using the marihuana equivalency obtained from the table in subdivision (II), convert the quantity of cocaine base involved in the offense to its equivalent quantity of marihuana.
(IV) Add the quantity of marihuana determined under subdivisions (I) and (III), and look up the total in the Drug Quantity Table to obtain the combined base offense level for all the controlled substances involved in the offense.
(ii) Example.—The case involves 1.5 kg of cocaine, 10 kg of marihuana, and 20 g of cocaine base. Pursuant to subdivision (B), the equivalent quantity of marihuana for the cocaine and the marihuana is 310 kg. (The cocaine converts to an equivalent of 300 kg of marihuana (1.5 kg × 200 g = 300 kg), which when added to the quantity of marihuana involved in the offense, results in an equivalent quantity of 310 kg of marihuana.) This corresponds to a base offense level 26. Pursuant to the table in subdivision (II), the base offense level of 26 results in a marihuana equivalency of 5 kg for the cocaine base. Using this marihuana equivalency for the cocaine base results in a marihuana equivalency of 100 kg (20 g × 5 kg = 100 kg). Adding the quantities of marihuana of all three controlled substances results in a combined quantity of 410 kg of marihuana, which corresponds to a combined base offense level of 28 in the Drug Quantity Table.”.
The Commentary to § 2D1.1 captioned “Application Notes” is amended in Note 10 by striking “DRUG EQUIVALENCY TABLES” and inserting the following:
“(E) Drug Equivalency Tables.—”;
Reason for Amendment: The Commission identified as a policy priority for the amendment cycle ending May 1, 2007, “continuation of its work with the congressional, executive, and judicial branches of the government and other interested parties on cocaine sentencing policy,” including reevaluating the Commission's 2002 report to Congress, Cocaine and Federal Sentencing Policy. As a result of the Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 21 U.S.C. 841(b)(1) requires a five-year mandatory minimum penalty for a first-time trafficking offense involving 5 grams or more of crack cocaine, or 500 grams of powder cocaine, and a ten-year mandatory minimum penalty for a first-time trafficking offense involving 50 grams or more of crack cocaine, or 5,000 grams or more of powder cocaine. Because 100 times more powder cocaine than crack cocaine is required to trigger the same mandatory minimum penalty, this penalty structure is commonly referred to as the “100-to-1 drug quantity ratio.”
To assist the Commission in its consideration of Federal cocaine sentencing policy, the Commission received statements and heard expert testimony from the Executive Branch, the Federal judiciary, defense
During the amendment cycle, the Commission updated its analysis of key sentencing data about cocaine offenses and offenders; reviewed recent scientific literature regarding cocaine use, effects, dependency, prenatal effects, and prevalence; researched trends in cocaine trafficking patterns, price, and use; surveyed the state laws regarding cocaine penalties; and monitored case law developments.
Current data and information continue to support the Commission's consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere. These findings will be more thoroughly explained in a forthcoming report that will present to Congress, on or before May 15, 2007, a number of recommendations for modifications to the statutory penalties for crack cocaine offenses. It is the Commission's firm desire that this report will facilitate prompt congressional action addressing the 100-to-1 drug quantity ratio.
The Commission's recommendation and strong desire for prompt legislative action notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so urgent and compelling that this amendment is promulgated as an interim measure to alleviate some of those problems. The Commission has concluded that the manner in which the Drug Quantity Table in § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) was constructed to incorporate the statutory mandatory minimum penalties for crack cocaine offenses is an area in which the Federal sentencing guidelines contribute to the problems associated with the 100-to-1 drug quantity ratio.
When Congress passed the 1986 Act, the Commission responded by generally incorporating the statutory mandatory minimum sentences into the guidelines and extrapolating upward and downward to set guideline sentencing ranges for all drug quantities. The drug quantity thresholds in the Drug Quantity Table are set so as to provide base offense levels corresponding to guideline ranges that are above the statutory mandatory minimum penalties. Accordingly, offenses involving 5 grams or more of crack cocaine were assigned a base offense level (level 26) corresponding to a sentencing guideline range of 63 to 78 months for a defendant in Criminal History Category I (a guideline range that exceeds the five-year statutory minimum for such offenses by at least three months). Similarly, offenses involving 50 grams or more of crack cocaine were assigned a base offense level (level 32) corresponding to a sentencing guideline range of 121 to 151 months for a defendant in Criminal History Category I (a guideline range that exceeds the ten-year statutory minimum for such offenses by at least one month). Crack cocaine offenses for quantities above and below the mandatory minimum threshold quantities were set accordingly using the 100-to-1 drug quantity ratio.
This amendment modifies the drug quantity thresholds in the Drug Quantity Table so as to assign, for crack cocaine offenses, base offense levels corresponding to guideline ranges that include the statutory mandatory minimum penalties. Accordingly, pursuant to the amendment, 5 grams of cocaine base are assigned a base offense level of 24 (51 to 63 months at Criminal History Category I, which includes the five-year (60 month) statutory minimum for such offenses), and 50 grams of cocaine base are assigned a base offense level of 30 (97 to 121 months at Criminal History Category I, which includes the ten-year (120 month) statutory minimum for such offenses). Crack cocaine offenses for quantities above and below the mandatory minimum threshold quantities similarly are adjusted downward by two levels. The amendment also includes a mechanism to determine a combined base offense level in an offense involving crack cocaine and other controlled substances.
The Commission's prison impact model predicts that, assuming no change in the existing statutory mandatory minimum penalties, this modification to the Drug Quantity Table will affect 69.7 percent of crack cocaine offenses sentenced under § 2D1.1 and will result in a reduction in the estimated average sentence of all crack cocaine offenses from 121 months to 106 months, based on an analysis of cases sentenced in fiscal year 2006 under § 2D1.1 involving crack cocaine.
Having concluded once again that the 100-to-1 drug quantity ratio should be modified, the Commission recognizes that establishing federal cocaine sentencing policy ultimately is Congress's prerogative. Accordingly, the Commission tailored the amendment to fit within the existing statutory penalty scheme by assigning base offense levels that provide guideline ranges that include the statutory mandatory minimum penalties for crack cocaine offenses. The Commission, however, views the amendment only as an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor a complete solution to those problems. Any comprehensive solution to the 100-to-1 drug quantity ratio requires appropriate legislative action by Congress.
Amendment: Section 2D1.11(a) is amended by striking “(e)” after “under subsection” and inserting “(d)”.
The Commentary to § 2K2.1 captioned “Application Notes” is amended in Note 14 in subdivision (B) by striking “(b)(1)” and inserting “(b)(6)”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. 930 the following:
Chapter Three, Part D is amended in the Introductory Commentary in the first paragraph by inserting after the first sentence the following:
“These rules apply to multiple counts of conviction (A) contained in the same indictment or information; or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.”.
The Commentary to § 3D1.1 captioned “Application Note” is amended by striking “Note” and inserting “Notes”; by redesignating Note 1 as Note 2; and by inserting the following as new Note 1:
“1. In General—For purposes of sentencing multiple counts of conviction, counts can be (A) contained in the same indictment or information; or (B) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.”.
Reason for Amendment: This amendment makes various technical and conforming changes to the guidelines.
First, the amendment corrects typographical errors in subsection (a) of § 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) and Application Note 14 of
Second, the amendment addresses application of the grouping rules when a defendant is sentenced on multiple counts contained in different indictments as, for example, when a case is transferred to another district for purposes of sentencing, pursuant to Fed. R. Crim. P. 20(a).
The amendment adopts the reasoning of recent case law and clarifies that the grouping rules apply not only to multiple counts in the same indictment, but also to multiple counts contained in different indictments when a defendant is sentenced on the indictments simultaneously. The amendment provides clarifying language in the Introductory Commentary of Chapter Three, Part D, as well as in § 3D1.1 (Procedure for Determining Offense Level on Multiple Counts). The language is the same as that provided in *5G1.2 (Sentencing on Multiple Counts of Conviction).
Amendment: The amendments to § 2H3.1 and Appendix A, effective May 1, 2007 (
Section 2H3.1 is amended in the heading by striking “Tax Return Information” and inserting “Certain Private or Protected Information”.
Section 2H3.1(a) is amended by striking subdivision (2) and inserting the following:
“(2) 6, if the offense of conviction has a statutory maximum term of imprisonment of one year or less but more than six months.”.
Section 2H3.1(b)(1) is amended by inserting “(A) the defendant is convicted under 18 U.S.C. 1039(d) or (e); or (B)” after “If”.
The Commentary to § 2H3.1 captioned “Statutory Provisions” is amended by inserting “8 U.S.C. 1375a(d)(3)(C), (d)(5)(B);” before “18 U.S.C.”; by inserting “§ 1039, 1905,” after “18 U.S.C.”; and by inserting “42 U.S.C. 16962, 16984” after “7216;”.
The Commentary to § 2H3.1 captioned “Application Notes” is amended by striking Note 1; by redesignating Note 2 as Note 1; and by adding at the end the following:
“2. Imposition of Sentence for 18 U.S.C. 1039(d) and (e).—Subsections 1039(d) and (e) of title 18, United States Code, require a term of imprisonment of not more than 5 years to be imposed in addition to any sentence imposed for a conviction under 18 U.S.C. 1039(a), (b), or (c). In order to comply with the statute, the court should determine the appropriate ‘total punishment' and divide the sentence on the judgment form between the sentence attributable to the conviction under 18 U.S.C. 1039(d) or (e) and the sentence attributable to the conviction under 18 U.S.C. 1039(a), (b), or (c), specifying the number of months to be served for the conviction under 18 U.S.C. 1039(d) or (e). For example, if the applicable adjusted guideline range is 15-21 months and the court determines a ‘total punishment' of 21 months is appropriate, a sentence of 9 months for conduct under 18 U.S.C. 1039(a) plus 12 months for 18 U.S.C. 1039(d) conduct would achieve the ‘total punishment' in a manner that satisfies the statutory requirement.
3. Upward Departure.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such a case, an upward departure may be warranted. The following are examples of cases in which an upward departure may be warranted:
(i) The offense involved confidential phone records information or tax return information of a substantial number of individuals.
(ii) The offense caused or risked substantial non-monetary harm (e.g. physical harm, psychological harm, or severe emotional trauma, or resulted in a substantial invasion of privacy interest) to individuals whose private or protected information was obtained.”.
The Commentary to § 2H3.1 is amended by striking “Background” through the end of “and 7216.”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 8 U.S.C. 1328 the following:
Reason for Amendment: This amendment addresses several offenses that pertain to unauthorized access or disclosure of private or protected information. Specifically, this amendment pertains to (A) the re-promulgation of the emergency amendment that implemented the directive in section 4 of the Telephone Records and Privacy Protection Act of 2006, Pub. L. 109-476 (the “Telephone Records Act”); (B) offenses involving improper use of a child's fingerprints under 42 U.S.C. 16984 and 16962; and (C) various other offenses related to private or protected information.
This amendment re-promulgates as permanent the temporary emergency amendment (effective May 1, 2007) that implemented the directive in section 4 of the Telephone Records Act. The amendment refers the new offense at 18 U.S.C. 1039 to § 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Tax Information). The Commission concluded that disclosure of telephone records is similar to the types of privacy offenses referenced to this guideline. In addition, this guideline includes a cross reference, instructing that if the purpose of the 18 U.S.C. 1039 offense was to facilitate another offense, the guideline applicable to an attempt to commit the other offense should be applied, if the resulting offense level is higher. The Commission concluded that operation of the cross reference would capture the harms associated with the aggravated forms of this offense referenced at 18 U.S.C. 1039(d) or (e). The amendment also expands the scope of the existing three-level enhancement in the guideline to include cases in which the defendant is convicted under 18 U.S.C. 1039(d) or (e). Thus, in a case in which the cross reference does not apply, application of the enhancement will capture the increased harms associated with the aggravated offenses. Finally, the amendment expands the upward departure note to include tax return information of a substantial number of individuals.
Section 153 of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248 (the “Adam Walsh Act”), added a new offense at 42 U.S.C. 16962, which provides a statutory maximum term of imprisonment of 10 years for the improper release of information obtained in fingerprint-based checks for the background check of either foster or adoptive parents or of individuals employed by, or considering employment with, a private or public educational agency. Additionally, section 627 of the Adam Walsh Act added a new Class A Misdemeanor offense at 42 U.S.C. 16984 prohibiting the use of a child's fingerprints for any purpose other than providing those fingerprints to the child's parent or legal guardian. This amendment references both offenses to § 2H3.1, providing a base offense level of 9 under § 2H3.1(a)(1) if the defendant was convicted of violating 42 U.S.C. 16962, and a base offense level of 6 if the defendant was convicted of violating 42 U.S.C. 16984.
Finally, this amendment implements the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162 (“VAWA”). VAWA included the International Marriage Broker Regulation Act of 2005 (“IMBRA”), which requires marriage brokers to keep
The Commission concluded that referencing these new offenses to § 2H3.1 was appropriate because each of the new offenses is similar to the types of privacy offenses referenced to this guideline.
Amendment: Section 4A1.1(f) is amended by striking “was considered related to another sentence resulting from a conviction of a crime of violence” and inserting “was counted as a single sentence”; and by striking the last sentence.
The Commentary to § 4A1.1 captioned “Application Notes” is amended in Note 6 by striking the first paragraph and inserting the following:
Ҥ 4A1.1(f). In a case in which the defendant received two or more prior sentences as a result of convictions for crimes of violence that are counted as a single sentence (
Section 4A1.2(a) is amended in the heading by striking “Defined”; and by striking subdivision (2) and inserting the following:
“(2) If the defendant has multiple prior sentences, determine whether those sentences are counted separately or as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence. See also § 4A1.1(f).
For purposes of applying § 4A1.1(a), (b), and (c), if prior sentences are counted as a single sentence, use the longest sentence of imprisonment if concurrent sentences were imposed. If consecutive sentences were imposed, use the aggregate sentence of imprisonment.”.
Section 4A1.2(c)(1) is amended by striking “at least one” and inserting “more than one”; by striking “Fish and game violations”; and by striking “Local ordinance violations (excluding local ordinance violations that are also criminal offenses under state law)”.
Section 4A1.2(c)(2) is amended by inserting “Fish and game violations” as a new line before the line referenced to “Hitchhiking”; and by inserting “Local ordinance violations (except those violations that are also violations under state criminal law)” as a new line before the line referenced to “Loitering”.
The Commentary to § 4A1.2 captioned “Application Notes” is amended by striking Note 3 and inserting the following:
“3. Upward Departure Provision.—Counting multiple prior sentences as a single sentence may result in a criminal history score that underrepresents the seriousness of the defendant's criminal history and the danger that the defendant presents to the public. In such a case, an upward departure may be warranted. For example, if a defendant was convicted of a number of serious non-violent offenses committed on different occasions, and the resulting sentences were counted as a single sentence because either the sentences resulted from offenses contained in the same charging instrument or the defendant was sentenced for these offenses on the same day, the assignment of a single set of points may not adequately reflect the seriousness of the defendant's criminal history or the frequency with which the defendant has committed crimes.”.
The Commentary to § 4A1.2 captioned “Application Notes” is amended in Note 12 by striking “Local Ordinance Violations.” and inserting the following:
“Application of Subsection (c).—
(A) In General.—In determining whether an unlisted offense is similar to an offense listed in subdivision (c)(1) or (c)(2), the court should use a common sense approach that includes consideration of relevant factors such as (i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.
(B) Local Ordinance Violations.—”;
“(C) Insufficient Funds Check.—‘Insufficient funds check,’ as used in § 4A1.2(c)(1), does not include any conviction establishing that the defendant used a false name or non-existent account.”.
The Commentary to § 4A1.2 captioned “Application Notes” is amended by striking Note 13.
The Commentary to § 4B1.2 captioned “Application Notes” is amended in Note 1 in the paragraph that begins “A violation of 18 U.S.C. 924(c)” by inserting “sentences for the” before “two prior”; and by striking “treated as related cases” and inserting “counted as a single sentence”.
The Commentary to § 2L1.2 captioned “Application Notes” is amended in Note 4(B) by striking “considered ‘related cases’, as that term is defined in Application Note 3” and inserting “counted as a single sentence pursuant to subsection (a)(2)”.
Reason for Amendment: This amendment addresses two areas of the Chapter Four criminal history rules: The counting of multiple prior sentences and the use of misdemeanor and petty offenses in determining a defendant's criminal history score. In November 2006 the Commission hosted round-table discussions to receive input on criminal history issues from federal judges, prosecutors, defense attorneys, probation officers, and members of academia. In addition, the Commission gathered information through its training programs, the public comment process, and comments received during a public hearing of the Commission in March 2007. This amendment addresses two issues that were raised during this process.
First, the amendment addresses the counting of multiple prior sentences. The Commission has heard from a number of practitioners throughout the criminal justice system that the “related cases” rules at subsection (a)(2) of § 4A1.2 (Definitions and Instructions for Computing Criminal History) and Application Note 3 of § 4A1.2 are too complex and lead to confusion. Moreover, a significant amount of litigation has arisen concerning application of the rules, and circuit conflicts have developed over the meaning of terms in the commentary that define when prior sentences may be considered “related.” For example, the commentary provides that prior sentences for offenses not separated by an intervening arrest are to be considered related if the sentences resulted from offenses that were consolidated for sentencing. In determining whether offenses were consolidated for sentencing, some courts have required that the record reflect a formal order of consolidation, while others have not. Compare, e.g., United States v. Correa, 114 F.3d 314, 317 (1st Cir. 1997) (order required) with
The amendment simplifies the rules for counting multiple prior sentences and promotes consistency in the application of the guideline. The amendment eliminates use of the term “related cases” at § 4A1.2(a)(2) and instead uses the terms “single” and “separate” sentences. This change in terminology was made because some have misunderstood the term “related cases” to suggest a relationship between the prior sentences and the instant offense. Prior sentences for conduct that is part of the instant offense are separately addressed at § 4A1.2(a)(1) and Application Note 1 of that guideline.
Under the amendment, the initial inquiry will be whether the prior sentences were for offenses that were separated by an intervening arrest (i.e., the defendant was arrested for the first offense prior to committing the second offense). If so, they are to be considered separate sentences, counted separately, and no further inquiry is required.
If the prior sentences were for offenses that were not separated by an intervening arrest, the sentences are to be counted as separate sentences unless the sentences (1) were for offenses that were named in the same charging document, or (2) were imposed on the same day. In either of these situations they are treated as a single sentence.
The amendment further provides that in the case of a single sentence that comprises multiple concurrent sentences of varying lengths, the longest sentence is to be used for purposes of applying subsection (a), (b) and (c) of § 4A1.1 (Criminal History Category). In the case of a single sentence that comprises multiple sentences that include one or more consecutive sentences, the aggregate sentence is to be used for purposes of applying § 4A1.1(a), (b), and (c).
Instances may arise in which a single sentence comprises multiple prior sentences for crimes of violence. In such a case, § 4A1.1(f) will apply. Consistent with § 4A1.1(f) and Application Note 6 to § 4A1.1, additional criminal history points will be awarded for certain sentences that otherwise do not receive points because they have been determined to be part of a single sentence. For example, if a defendant's criminal history contains two robbery convictions for which the defendant received concurrent five-year sentences of imprisonment and the sentences are considered a single sentence because the offenses were not separated by an intervening arrest and were imposed on the same day, a total of 3 points would be added under § 4A1.1(a). An additional point would be added under § 4A1.1(f) because the second sentence was for a crime of violence that did not receive any points under § 4A1.1(a), (b), or (c).
The amendment also provides for an upward departure at Application Note 12(A) to § 4A1.1 if counting multiple prior sentences as a single sentence would underrepresent the seriousness of the defendant's criminal history and the danger that the defendant presents to the public.
Second, the amendment addresses the use of misdemeanor and petty offenses in determining a defendant's criminal history score. Sections 4A1.2(c)(1) and (2) govern whether and when certain misdemeanor and petty offenses are counted. Section 4A1.2(c)(1) lists offenses that are counted only when the prior sentence was a term of probation of at least one year or a term of imprisonment of at least 30 days. Section 4A1.2(c)(2) lists offenses that are never counted toward the defendant's criminal history score. The amendment responds to concerns that (1) some misdemeanor and petty offenses counted under the guidelines involve conduct that is not serious enough to warrant increased punishment upon sentencing for a subsequent offense; (2) the presence of a prior misdemeanor or petty offense in a rare case can affect the sentence in the instant offense in a way that is greatly disproportionate to the seriousness of the prior offense (such as when such a prior offense alone disqualifies a defendant from safety valve eligibility); and (3) jurisdictional differences in defining misdemeanor and petty offenses can result in inconsistent application of criminal history points for substantially similar conduct.
To evaluate these concerns, the Commission conducted a study of misdemeanor and petty offenses and the criminal history rules that govern them, particularly § 4A1.2(c)(1). The Commission examined a sample of 11,300 offenders sentenced in fiscal year 2006 to determine the type of misdemeanor and petty offenses counted in the criminal history score, the frequency with which they occurred, and the particular guideline provisions that caused them to be counted. In addition, the Commission examined a sample of offenders sentenced in 1992 who were subsequently released from imprisonment and monitored for two years for evidence of recidivism. (
The results of these analyses led the Commission to make three modifications to § 4A1.2(c)(1) and (2). First, the amendment moves from § 4A1.2(c)(1) to § 4A1.2(c)(2) two classes of offenses: fish and game violations and local ordinance violations (except those violations that are also violations under state criminal law). Second, the amendment changes the probation criterion at § 4A1.2(c)(1) from a term of “at least” one year to a term of “more than” one year. Finally, the amendment resolves a circuit conflict over the manner in which a non-listed offense is determined to be “similar to” an offense listed at § 4A1.2(c)(1) and (2).
Fish and game violations were moved from § 4A1.2(c)(1) to § 4A1.2(c)(2) so that they will not be counted in a defendant's criminal history score. Fish and game violations generally do not involve criminal conduct that is more serious than the offense of conviction, and the relatively minor sentences received by fish and game offenders in the fiscal year 2006 study suggest that these offenses are not considered to be among the more serious offenses listed at § 4A1.2(c)(1).
In addition, local ordinance violations (except those that are also violations of state law) were moved from § 4A1.2(c)(1) to § 4A1.2(c)(2) so that they also will not be counted in a defendant's criminal history score. Similar to fish and game violations, local ordinance violations generally do not represent conduct criminalized under state law. Moreover, these offenses also frequently received minor sentences. The exception in this amendment for violations that are also criminal violations under state law will ensure that only the more serious prior criminal conduct will continue to be included in the criminal history score.
Section 4A1.2(c)(1)(A) is amended to provide that the offenses listed at § 4A1.2(c)(1) will be counted “only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to the instant offense” (emphasis added). The Commission received comment that some sentences of a one-year term of probation constitute a default punishment summarily imposed by the state sentencing authority, particularly in those instances in which the probation imposed lacked a supervision component or was imposed in lieu of a fine or to enable the payment of a fine.
The amendment resolves a circuit conflict over the manner in which a court should determine whether a non-listed offense is “similar to” an offense listed at § 4A1.2(c)(1) or (2). Some courts have adopted a “common sense approach,” first articulated by the Fifth Circuit in